[2] Where a third party who has permitted the use of the name of the principal debtor in obtaining a loan from a financial institution bears a joint guarantor's liability for joint and several sureties who has performed the joint and several sureties's obligation

[2] Even in a case where a joint and several surety with the knowledge that the third party, the nominal owner of the principal debt, was not the actual principal debtor, and the third party is deemed to have jointly and severally guaranteed the principal debtor, if the third party is deemed to have jointly and severally guaranteed the joint and several surety, the third party shall be liable to compensate for the damage in accordance with the legal principles of the right to indemnity among joint guarantors. In a case where the third party has consented to have the third party as the principal debtor in receiving a loan from a financial institution, barring any special circumstance, the economic effect of the loan from the financial institution shall be deemed to have been an intention to belong to the principal debtor, and at least the liability of joint and several surety shall be deemed

The court below rejected the defendant's loan agreement between the non-party 1 and the non-party 2 on the form of joint and several sureties's own loan agreement with the non-party 1 as the principal debtor. The non-party 2, the non-party 3, the non-party 4 and the non-party 5 were not aware that the non-party 1 had a joint and several sureties's loan obligation under the name of the non-party 1, and the non-party 2 had a joint and several sureties's loan obligation under the non-party 1's name and the non-party 2 had a separate and several sureties's loan obligation under the non-party 1's name. The non-party 1 knew that the non-party 2 had a joint and several sureties's loan obligation under the non-party 1's name and the non-party 2 had no knowledge that the non-party 1 had a joint and several sureties's loan obligation under the non-party 1's name and the defendant was not aware that the non-party 1 was a principal debtor.

2. Judgment of the Supreme Court

A. However, the lower court’s rejection of the Plaintiff’s claim on the grounds as above is difficult to accept for the following reasons.

B. Where a third party has been allowed to use his name from a financial institution, regardless of whether he is liable as a principal debtor with respect to the financial institution which is the creditor, as a matter of course, the joint and several surety who has performed the joint and several liability as a principal debtor shall not be held liable for damages as a principal debtor in an internal relationship (see Supreme Court Decision 98Da22451 delivered on October 22, 199). The joint and several surety has guaranteed the third party's belief that he is a principal debtor as a substantial debtor, or fulfilled the guarantee obligation, and the third party bears the responsibility for damages as a joint and several surety, only if it appears that it is reasonable to bear the responsibility for the third party on the ground that the third party is responsible for the belief.

In light of the records in light of the above legal principles, the non-party 2 knew that the non-party 1 was the debtor at the time of the above joint and several liability, but the non-party 1 was aware that the defendant was the principal debtor after the non-party 1 was insolvent. The loan of this case was used by all the non-party 1, and the defendant was never used, and the non-party 2 was recognized as having performed the joint and several liability as recognized by the court below after the defendant talked about the non-party 2. Thus, the non-party 2 shall be deemed to have performed the joint and several liability with the knowledge that the defendant is not the actual principal debtor. Thus, the defendant does not bear the full liability for indemnity against the non-party 2 as the principal debtor. Therefore, there is no ground of appeal that

C. However, even if a joint and several surety knows that a third party who is the nominal owner of the principal debt is not the actual principal debtor, and the third party is deemed to have jointly and severally guaranteed the principal debtor, the third party shall be liable to compensate the joint and several surety in accordance with the legal doctrine of the exercise of the right to indemnification among the joint and several guarantors (see Supreme Court Decision 98Da22451 delivered on October 22, 199). In a case where the third party consented to the lending of the loan from a financial institution to the principal debtor by the financial institution, barring any special circumstance, the economic effect of the loan due to the loan belongs to the actual principal debtor, even if it belongs to the principal debtor (see Supreme Court Decision 97Da8403 delivered on July 25, 1997), and at least the liability of the joint and several surety shall be deemed to have been an intention to assume the responsibility of the joint and several surety.

However, as acknowledged by the court below, although the non-party 1 took out the loan of this case under the name of the defendant under the understanding of the non-party 1's officers and employees, the non-party 1 did not know of the specific contents of the loan of this case and who is joint and several sureties, the non-party 1 did not execute the loan of this case, or the non-party 1 did not execute the loan of this case in the process of collecting the loan of this case, the following facts are acknowledged according to the records. In other words, the defendant stated that the non-party 1 was the relative of the non-party 1, the defendant did not request the guarantee of the non-party 1 to obtain bill discount, and the non-party 1 did not know of the intention of the non-party 1 to obtain bill discount from the investigation agency and court, and it is difficult to view the non-party 1's loan of this case as a guarantee of the non-party 1's loan of this case or the non-party 1's loan of this case as a compulsory execution of this case.

Therefore, in light of the above legal principles, the defendant shall be deemed to bear the duty of compensation as a joint guarantor against the non-party 2, and according to the records, it is possible to find out the fact that the non-party 2 is more joint and several sureties than the non-party 2. Thus, the court below should have deliberated and decided on the defendant's share of expenses, and accepted the plaintiff's claim as to the part of the burden

D. Nevertheless, the court below erred by misapprehending the facts contrary to the rules of evidence, or by misunderstanding the scope of the duty of indemnity against other joint and several sureties of the formal principal obligor, which affected the conclusion of the judgment, on the ground that the court below did not have any intention to guarantee Nonparty 1 with respect to the loan of this case, and thus dismissed the plaintiff's claim of this case in whole. The ground of appeal containing such purport is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)