[손해배상(기)][집37(3)민,143;공1989.11.15.(860),1572]
(a) The obligation of the trustee as a receipt of indemnity by exercising the right of advance reimbursement;
(b) The time when the advance indemnity received by the Credit Guarantee Fund shall be used for the discharge of the primary debtor;
A. If the trustee guarantor received the advance reimbursement by exercising the right of advance reimbursement, even though the reason for the advance reimbursement is the joint guarantor and the surety, it is ultimately attributable to the obligee at the time of the advance reimbursement, since the principal obligor was paid the interest already incurred to the obligee and the interest accrued to the obligor, the expenses not to be paid, and other damages, and thus, the amount is not different from the advance reimbursement from the principal obligor. This is because the trustee, who is in the position of the mandatary with the principal obligor, has the nature of the expenses that he received in advance to handle the entrusted affairs, and the guarantor is obliged to use it for the discharge of the principal obligor,
B. Article 29(1) of the Credit Guarantee Fund Act and Article 21 subparag. 1 of the Enforcement Decree of the Credit Guarantee Fund Act provide that where an enterprise which is a primary debtor delays the performance of the primary obligation to a financial institution which is a creditor, the financial institution shall not limit the time when the financial institution can claim the performance of the guaranteed obligation to the Credit Guarantee Fund after a certain period of time has elapsed. Thus, the advance indemnity received by the Credit Guarantee Fund shall not be used for the performance of the guaranteed obligation or for the discharge of the primary debtor only after the occurrence of any of the causes
(b)Article 442(b) of the Civil Code; Article 29(1) of the Credit Guarantee Fund Act; Article 21(1) of its Enforcement Decree;
A. Supreme Court Decision 77Do1307 delivered on July 26, 197
Alley EMM Co.
Attorney Lee Jae-ho, Counsel for the Korea Credit Guarantee Fund
Seoul Central District Court Decision 87Na2249 delivered on March 2, 1988
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
As to the Defendant’s Attorney’s ground of appeal:
1. The facts established by the court below are as follows. The plaintiff, on June 5, 191, has no dispute between the parties, set a deposit amount of 30 million won, interest rate of 10 percent per annum, and overdue interest rate of 18 percent per annum, and the defendant, on June 3, 1981, issued a credit guarantee certificate with a guarantee amount of 25 million won until June 2, 1983, and guaranteed the plaintiff's loan obligations by issuing a credit guarantee certificate with a guarantee amount of 25 million won. In issuing the above credit guarantee certificate, the defendant provided real estate owned by the non-party as security for the guarantee of the indemnity obligation, 30 million won, the debtor, the debtor, and the defendant, upon filing a request for auction from the first priority mortgagee, etc., agreed to give the defendant's prior right to reimbursement. On March 2, 1982, the above real estate was sold by the Seoul Trust Bank, which was the first priority mortgagee, and the defendant did not immediately pay the above amount to the defendant 130184.284.
If the money is paid out by the Defendant’s prior exercise of the right to indemnity out of the successful bid price for the real estate owned by the Nonparty, a joint guarantor and a surety, the Nonparty’s property guaranteed by the Defendant, as acknowledged by the lower court, the reason for the prior indemnity is not attributable to the Plaintiff, which is the principal obligor, but is not attributable to the Plaintiff, but also for the joint surety and the surety’s property guaranteed by the joint surety, this does not appear to have been paid in advance by the Plaintiff, which is the principal obligor at the time of the prior indemnity. Thus, once the Defendant received the advance indemnity, the amount will be deemed to have the nature of the expenses paid in advance by the Defendant, the trustee, who is the principal obligor, for the handling of the entrusted affairs, and the Defendant is obliged to use it for the exemption of the principal obligor, which is the entrusted affairs, as a good manager (see Supreme Court Decision 7Do1307 delivered on July 26, 197).
Nevertheless, if the defendant's failure to perform the above duty and thereby caused damage to the plaintiff who is in the position of mandator, the defendant shall not be exempted from liability to compensate for the damage suffered by the plaintiff due to the failure to perform such duty.
According to the facts established by the court below, the principal obligation against the Industrial Bank of Korea of Korea of less than one month was set as a short-term period of less than one month and its maturity has been extended by means of re-financing in the form of a new loan offsetting the existing obligation. The plaintiff paid interest at a rate of 10% per annum whenever the above bank takes a substitute repayment, and where substitute repayment is delayed, overdue interest at a rate of 18% per annum per annum for the delayed period. After October 22, 1982, the defendant paid overdue interest at a rate of 10% until October 13, 1983. Since the principal obligation against the Industrial Bank of Korea of Korea was partially repaid after September 1, 1983, the defendant received the advance reimbursement at a rate of 10% per annum for the delayed period, and it can be deemed that it was possible to use it without delay as part of the principal obligor's exemption from liability in light of these facts. Thus, the court below's judgment is justified.
2. According to Article 29(1) of the Credit Guarantee Fund Act and Article 21 subparag. 1 of the Enforcement Decree of the same Act, with respect to a credit guarantee for a financial obligation owed by an enterprise to a financial institution by receiving a loan from a financial institution, etc. from a financial institution, the obligee may claim for the performance of the guaranteed obligation against the Fund when three months have passed since the guaranteed enterprise failed to perform its obligation to the financial institution within the given time limit (including where the benefit of time was lost). This is only limited to the time limit after a financial institution, which is the obligee, can claim for the performance of the guaranteed obligation against the Credit Guarantee Fund if the company as the principal obligor delays the performance of the principal obligation to the financial institution as the obligee, and it cannot be interpreted that the guaranteed enterprise cannot discharge its guaranteed obligation or discharge its principal obligor before the expiration of the given time limit. Accordingly, in this case, the Defendant’s prior indemnity received from the Nonparty cannot be used for the discharge of the principal obligor’s obligation only after the date of receipt of the foregoing legal claim, but rather, cannot be criticize the judgment below.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice)