[2] The case where a continuous guarantee agreement recognizes the termination right under the good faith principle

[2] In a continuous guarantee, in a case where the existence of an unexpected change in circumstances that occurred after the conclusion of the guarantee contract and the continued imposition of the guarantor’s obligation to guarantee is deemed unreasonable in light of the parties’ interpretation or the good faith principle, a guarantee contract may be terminated upon the unilateral declaration of intent to terminate the guarantee contract by the guarantor’s unilateral declaration of intent to terminate the guarantee contract, barring special circumstances, such as where the other party’

The court below found that, upon being entrusted with the guarantee of the non-party 1 corporation, the plaintiff issued a credit guarantee agreement to the non-party 1 Bank on September 22, 1993. According to the credit guarantee agreement, the non-party company's loan obligation to be borne by the above Industrial Bank of Korea for one year from the same date until September 21, 1994 is guaranteed within the limit of 550,000 won. The defendant Lee Young-young owned 21.3% of the shares of the non-party company and its representative director's status, Lee Jong-jin's shares were 32.9% of the shares of the non-party company and its managing director's 32.9% of the shares of the non-party company and the non-party 3 company's 40% of the above shares were completely owned by the non-party 1 corporation's 40% of the above shares and the defendant Sam-jin company's 90% of the above shares issued the above credit guarantee agreement to the non-party 1 corporation.

If the facts are duly established by the court below, the guarantee made by the plaintiff to the Industrial Bank of Korea is to guarantee the non-party company's obligation to be borne by the Industrial Bank of Korea due to the continuous transaction of discount notes for the first year in the future, and it constitutes a continuous guarantee. The guarantee made by the defendants to the plaintiff also constitutes a continuous guarantee (see Supreme Court Decision 92Da10890 delivered on November 24, 1992). In such continuous guarantee, unless there are special circumstances such as the parties' intent to interpret the guarantee contract or the principle of good faith to continuously impose the guarantee obligation on the guarantor due to changes in circumstances which were not done originally after the guarantee contract, and there is no ground to conclude that the guarantee contract was terminated by the parties' unilateral declaration of intent to terminate the guarantee contract (see Supreme Court Decision 92Da10890 delivered on March 28, 1978; Supreme Court Decision 2007Da298979 delivered on June 29, 2008).

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)