1. Article 530-9(1) of the former Commercial Act (amended by Act No. 13523, Dec. 1, 2015; hereinafter the same) provides that “A company established by division or merger after division or a company surviving the division shall be jointly and severally liable for the obligations of the company prior to the division or merger after division.” The term “liability of the company prior to the division or merger after division” refers to not only the obligations arising before the division or the merger after division takes effect, but also the obligations that have not yet arrived at the time the division or the merger after division but also the legal relationship which forms the basis of its establishment has already occurred (see Supreme Court Decision 2010Da71660, Dec. 23, 2010).

2. According to the reasoning of the lower judgment and evidence duly admitted by the lower court, ① the Plaintiff entered into a credit guarantee agreement with B Co., Ltd. (hereinafter referred to as “B”) on February 23, 2006 (hereinafter referred to as “the first credit guarantee agreement”) with the term of February 23, 2007, under which B obtained a loan of KRW 300 million from a national bank as of February 23, 2007 (hereinafter referred to as “the first credit guarantee agreement”); ② B, the National Bank and the Plaintiff extended the term of repayment and the term of repayment to the Defendant on February 17, 201, up to KRW 200,000, KRW 2500,000, and KRW 2500,000,000,000 from the National Bank’s loan and KRW 20,000,000,000,000,000 more than 20,000,017.

Examining the aforementioned facts in light of the record, including the developments leading up to the conclusion of the first and second credit guarantee agreement and the details of the relevant loan agreement, the second credit guarantee agreement is formally separate from the first credit guarantee agreement, but in substance, it is so-called renewal guarantee to extend the term of guarantee of the first credit guarantee agreement as the principal obligation is due to the extension of the term of repayment in exchange for the principal obligation. Therefore, it is reasonable to deem that the legal relationship which forms the basis of establishing the first credit guarantee agreement and the first credit guarantee agreement secured the same has already occurred before the merger by division. Therefore, even if the liability for indemnity was incurred under the first credit guarantee agreement concluded after a merger by division and merger, it is reasonable to interpret that the amount of indemnity is included in the "liability prior to a merger by division" as stipulated in Article 530-9 (1) of the former Commercial Act.

3. Nevertheless, the court below rejected the Plaintiff’s assertion that the Defendant is jointly and severally liable pursuant to Article 530-9(1) of the Commercial Act with respect to the above indemnity obligation, on the grounds that it shall be deemed that the payment by subrogation was made pursuant to the second credit guarantee agreement that is not identical to the first credit guarantee agreement, and thus, it is erroneous in the misapprehension of legal principles as to the renewal of the credit guarantee agreement and the joint and several liability of the company after the merger by division under Article 530-9(1) of the Commercial Act, which affected the conclusion

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok

Justices Kim In-young