[2] Whether a guarantor may exercise the right of indemnity against the principal obligor in a case where the principal obligor does not notify the guarantor of the discharge while the principal obligor does not notify the guarantor of the discharge (negative)

[3] The period for filing an appeal and the incidental appellate brief (=the period for filing an appeal)

[2] The provision of Article 446 of the Civil Code is based on the premise of the provision of Article 445 (1) of the same Act, and therefore, it is not a provision to protect a trustee who fails to give prior notice under Article 445 (1) of the same Act. Thus, in the guarantee of consignment, in case where the guarantor, even though the principal debtor does an act of immunity and did not give prior notice to the guarantor, while the principal debtor did not give prior notice to the guarantor, the guarantor cannot assert the validity of his act of immunity pursuant to Article 446 of the Civil Code against the principal debtor. Therefore, in this case, the guarantor cannot claim the validity of his act of immunity against the principal debtor pursuant to Article 446 of the Civil Code. Thus, the guarantor cannot exercise his right to indemnity against the principal debtor pursuant to Article 446 of the Civil Code.

[3] Appellee may make an incidental appeal even after the right to appeal is extinguished, but it is necessary to file an incidental appeal within the period for submitting the appellate brief and to submit a statement of the reasons therefor. Although Appellee filed an incidental appeal within the period for submitting the appellate brief, if it did not state the grounds for incidental appeal in the annexed appellate brief and the incidental appellate brief is filed after the deadline for submitting the appellate brief, the incidental appeal shall be dismissed.

According to the reasoning of the judgment below, since the guarantee insurance contract of this case concluded between the plaintiff and the non-party 1 entered into an agency contract with the non-party 1 corporation (hereinafter referred to as the "non-party company"), which is the policyholder who is supplied with the goods of the non-party company, is non-party 1's non-party company's non-performance of obligation 】 non-party 1's non-party company's non-performance of obligation, which is an insurer's non-party 1's non-performance of obligation, and its formally aims at the same effect as the guarantee insurance contract with the nature of the obligor's non-performance of obligation. (See Supreme Court Decisions 89Meu25912 delivered on May 8, 199; 92Da4345 delivered on May 12, 1992). Thus, the court below determined that the defendants' obligation to pay damages to the non-party 1's non-party 2's non-party company's non-party company's non-party 1's non-party company's non-performance of obligation is justified.

However, the provision of Article 446 of the Civil Act is based on the premise of the provision of Article 445 (1) of the same Act, and it is not a provision to protect a trustee's guarantor who fails to give prior notice under Article 445 (1) of the same Act. Thus, in the case of a trustee's guarantee where the guarantor, even though the principal debtor performed a discharge and the guarantor did not give prior notice to the guarantor, he cannot assert the validity of his discharge pursuant to Article 446 of the same Act against the principal debtor. Thus, in this case, the guarantor cannot claim the validity of his discharge pursuant to Article 446 of the same Act against the principal debtor. Thus, in this case, the guarantor cannot exercise his right to indemnity against the principal debtor pursuant to Article 446 of the same Act, since the principal debtor's discharge becomes effective first and later, he cannot exercise his right to indemnity against the principal debtor.

As to the instant case, according to the facts duly admitted by the court below, while Defendant 1, the principal debtor, was not informed the Plaintiff, the trustee, of the exemption, even though he committed the act of immunity on his own act, the Plaintiff, who was aware of such fact, neglected to give prior notice to Defendant 1 and paid the insurance proceeds to the non-party company. In light of the above legal principles, in light of the above legal principles, the Plaintiff cannot claim the validity of his act of immunity and claim for reimbursement against the Defendants.

Nevertheless, the court below held that the plaintiff, a trustee guarantor, can exercise the right of reimbursement against the defendant 1, the principal debtor pursuant to Article 446 of the Civil Code. The court below's decision is not erroneous in the misapprehension of legal principles as to the right of reimbursement against the principal debtor of the trustee guarantor under Article 446 of the Civil Code as seen above (it is hard to say that even if the Defendants' duty of notification is stipulated in Article 7 of the Guarantee Insurance Contract, it is an agreement that the guarantor is exempted from the duty of advance notification to the principal debtor in paying the insurance proceeds to the non-party company, the guarantor, and such illegality is clearly affected by the judgment. The grounds for appeal pointing this out are with merit.

2. We examine the plaintiff's incidental appeal.

Appellee may make an incidental appeal even after the right to appeal has been extinguished, but it is necessary to file an incidental appeal within the period for submitting the appellate brief and submit the reasons (see, e.g., Supreme Court Decision 68Da825, Sept. 17, 1968; Supreme Court Decision 94Da3449, Nov. 14, 1995; Supreme Court Decision 96Da29700, Oct. 25, 1996; etc.). According to the records, the plaintiff submitted a supplementary appeal on the seventh day of the same month, which was within 20 days from November 3, 1995, on which the notice of receipt of the record of appeal was served to the appellant, but the incidental appellate brief did not state the grounds of incidental appeal in the supplementary appellate brief, and it can be known that the incidental appellate brief was submitted on June 6, 192 after 20 days from the date on which the notice of receipt of the record of appeal was served.

Therefore, the plaintiff's incidental appellate brief is filed after the lapse of the lawful period, and it should be dismissed without making a decision on the grounds of incidental appeal pursuant to Article 399 of the Civil Procedure Act.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendants, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below. The Plaintiff’s incidental appeal is dismissed, and the incidental costs are assessed against the Plaintiff who has lost the Plaintiff. It is so decided as per Disposition by the assent

Justices Chocheon-sung (Presiding Justice)