2. B

[Defendant-Appellant] Defendant 1

[Defendant-Appellant]

2. D;

2. Each of the plaintiffs' claims against Defendant D are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiffs and Defendant C is assessed against the Plaintiffs, and the part arising between the Plaintiffs and Defendant D, respectively.

4. Paragraph 1 can be provisionally executed.

A. As to the cause of claim

In full view of the purport of the arguments in Gap evidence Nos. 1 and 2, the plaintiffs are obligated to pay to defendant C the interest rate of KRW 600 million on May 17, 2007 and the due date of payment on July 17, 2007. Thus, unless there are special circumstances, the defendant C is obligated to pay to the plaintiffs the above KRW 600 million and the above amount after the above lending date, which are within the above rate of interest rate of KRW 15% per annum that the plaintiffs seek, as from November 22, 2008 [the day following the date of preparation of evidence No. 3 (Certificate)] to the day of complete payment.

B. As to Defendant C’s defense

As to this, Defendant C has a defense that the above loan claim had expired by the statute of limitations, it is clear that the above loan claim was due on July 17, 2007. The plaintiffs' lawsuit of this case was filed on June 29, 2018, which was ten years from the above lawsuit. However, according to the evidence No. 3 (the authenticity of the entire document is presumed to have been established, since there is no dispute over the part of Defendant C's unmanned), Defendant C borrowed KRW 600 million from the plaintiff on November 21, 2008, which was prior to the expiration of the statute of limitations. However, although Defendant C borrowed KRW 90 million from the plaintiff on November 21, 2008, which was a part of the interest, and did not pay the remaining interest and the principal, which was the first priority payment, and it can be acknowledged that the above loan was approved by issuing a written confirmation to the plaintiffs. Accordingly, the above defendant's defense was interrupted.

2. Determination as to the claim for advance reimbursement

A. Summary of the plaintiffs' assertion

Upon the request of the defendant D, the above defendant borrowed KRW 100 million from E (hereinafter referred to as "E") around December 9, 201, the plaintiffs provided the defendant as security. The defendant D promised to pay the above principal and interest of the loan to the plaintiffs within one month from the above loan date and to terminate the above security, and the defendant C guaranteed the defendant D's obligation to the plaintiffs. However, the defendant D exercised the prior right to indemnity under Article 42 (1), (4), and (31) of the Civil Act. Thus, the defendants are jointly obligated to pay KRW 100 million and delay damages to the plaintiffs.

B. Determination

1) Article 341 of the Civil Act applies mutatis mutandis to a mortgage pursuant to Article 370 of the same Act. Article 341 of the same Act provides that a mortgager who has pledged another person's obligation to secure another person's obligation acquires the right to indemnity against the debtor when the mortgager has repaid his/her obligation or has lost the ownership of the mortgaged property due to the execution of the mortgage, and the requirements for the creation of the right to indemnity against the debtor are different from those of the guarantor, and the real guarantee is an act of establishing a security right on behalf of the debtor on behalf of the debtor, and is not entrusted with the performance of the affairs performing the obligation on behalf of the debtor, and it is not limited to the physical liability as a security, and the scope of the right to indemnity against the debtor is not limited to the creditor, unless there are special circumstances. In principle, it is reasonable to interpret Article 442 of the Civil Act as to the prior right to indemnity of the entrusted guarantor, and it is not possible to exercise the right to indemnity in advance (see Supreme Court Decision 98Da19829, July 23, 2009, 209).

2) Comprehensively taking account of the written evidence evidence Nos. 5 through 9, the Plaintiffs, upon Defendant D’s request, completed the registration of creation of a mortgage on the instant apartment that the Plaintiffs owned one-half shares of each of the instant apartment on December 9, 201 under the name of E, and Defendant D obtained a loan of KRW 100 million from E as security; Defendant D agreed to repay the said loan to E within one month from the date of the loan; Defendant D agreed to cancel the registration of creation of a mortgage on the said loan; however, Plaintiff B offered a periodical deposit account in his/her name on December 18, 2017 as security and extended the lending period.

In light of the above facts of recognition in light of the above legal principles, the plaintiffs are the surety's surety to secure the loan obligation to defendant D, and the surety's surety cannot exercise the prior right to indemnity under Article 442 of the Civil Code. Thus, regardless of whether the due date for the above loan obligation has arrived or five years have passed after the physical guarantee agreement, the plaintiffs' claims for this part are without merit.

3. Conclusion

Therefore, the plaintiffs' claim against the defendant C is justified, and the plaintiffs' claim against the defendant D is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hyun-han

Judges Park Jae-ran

(1) A person who has become surety upon the request of the principal obligor may exercise the right to indemnity in advance against the principal obligor in the following cases:

3. Where five years have elapsed after the conclusion of the contract of guarantee, where the period for the performance of the obligation is not determined and the maximum period is not determined;

4. When the obligation becomes due; and