[2] Criteria to recognize the guarantee liability of the principal debtor in the form that can not be viewed as the debtor, since the name was lent for convenience in lending process

[3] Judicial effects of loans that exceed the credit limit limit under the former Mutual Savings and Finance Company Act (effective)

[2] In a case where a loan is deemed to have lent the name for the convenience of loan procedure and it cannot be viewed as a debtor, barring special circumstances, such as that the principal debtor wishes to be a guarantor for the actual principal debtor, it cannot be deemed that the principal debtor has the intent to guarantee the actual principal debtor.

[3] A mutual savings bank has violated Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of Jan. 5, 1995) and Article 8 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14574 of Apr. 11, 1995), and even if a mutual savings and finance company extended a loan to the same person, it does not have any limitation on the validity of private law.

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on macro evidence. According to the facts of recognition, the court below determined that the non-party company, even if it is the actual principal debtor, did not pay the plaintiff as the principal debtor on November 12, 1991 at the request of Hyundai Process Co., Ltd. (hereinafter the non-party company), the limit of loans to the same person is limited by mutual savings and finance companies (amended by Act No. 4867 of Jan. 5, 1995; hereinafter the same shall apply) Article 12 of the Mutual Savings and Finance Company Act and Article 8 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14574 of Apr. 11, 1995; hereinafter the same shall apply) that the non-party company's act of borrowing 1,00,000 won under the name of the plaintiff and the non-party company's joint principal debtor's name and thus, it was not liable for the plaintiff's legal act.

In light of the records, the fact-finding and judgment of the court below are all acceptable, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to false declaration of conspiracy.

It cannot be deemed that the Defendant exempted the Defendant from the obligation of the instant loan to the Plaintiff, or that the Plaintiff should be deemed to have taken over the obligation of the Defendant against the Defendant by issuing the instant promissory note and delivering it to the Defendant, on the premise that it is inconsistent with the facts recognized by the lower court, or it is merely an attack on the lower judgment from its independent view. Therefore, it cannot be accepted.

In addition, the argument that the Plaintiff is the principal debtor in the name of the loan of this case and at least as a guarantor for the non-party company, which is the actual debtor, or that the Plaintiff’s issuance of the promissory note of this case and delivery to the Defendant should be deemed to guarantee the obligation to the Defendant of the non-party company, is nothing more than an attacking the judgment of the court below on the grounds that the Plaintiff did not have asserted at the court below. In addition, in the case of this case, unless there are special circumstances such as where it is deemed that the Plaintiff lent the name for the convenience of the loan procedure, and it cannot be deemed that the principal debtor wishes to be a guarantor for the actual principal debtor, it cannot be deemed that the principal debtor

In addition, the Supreme Court decisions cited as arguments are related to cases where a third party prepares and delivers bills, checks, etc. on behalf of a debtor for the convenience of a loan for consumption of money among others, or delivers them to a creditor, or where it is premised on the existence of a guaranteed obligation, and thus, the case where a promissory note is issued and delivered to the defendant under the name of the plaintiff and the case where it is delivered to the defendant is different. Thus, the above judgment of the court below is not erroneous in interpreting the law contrary to the precedents.

2. In the course of the instant loan, the Defendant conducted a credit investigation by confirming the building owned by the non-party company under construction as the real estate subject to the right to collateral security during the process of the instant loan, and even if the Defendant cancelled the registration of creation of a mortgage over the amount of KRW 750,000,000 in the title of the Defendant, which made the Plaintiff the debtor on the building owned by the non-party company, at the same time under the agreement of the claim group as indicated in its holding, the Defendant did not exempt the Plaintiff from the Plaintiff’s obligation. However, the lower court did not even grant any evidence, and without such evidence, determined that the instant loan against the Plaintiff was made through a false agreement in light of the fact that the Defendant did not err by misapprehending the rules of evidence or by misapprehending the legal principles on the establishment of a right to collateral security, thereby recognizing that there was an error of law by misunderstanding the facts against the rules of evidence or by misapprehending the legal principles on the establishment of a right to collateral security.

However, in light of the court below's decision on this part, it is clear that the defendant, while completing the registration of the establishment of a neighboring mortgage on the building owned by the non-party company as the debtor on the loan of this case, did not conduct basic credit investigation on the plaintiff, and the defendant, according to the agreement with the non-party company, cancelled the registration of the establishment of a neighboring mortgage on the building owned by the non-party company under the name of the debtor in the name of the non-party company, the non-party company was merely the actual principal debtor, and it was found that the non-party company was unable to pay the plaintiff as the principal debtor in the form under the defendant's understanding to avoid the application of the Mutual Saving and

Therefore, the issue is derived from erroneous understanding of the judgment below or from criticism on the selection of evidence and the recognition of facts, which are the exclusive authority of the court below, and thus, it cannot be accepted. Therefore, there is no error of law such as the theory of lawsuit in the judgment below. There is no reason for this issue.

3. Although the mutual savings and finance company violated the provisions of Article 12 of the Mutual Savings and Finance Company Act and Article 8 (1) 1 of the Enforcement Decree of the same Act, the validity of the private law is not restricted (see, e.g., Supreme Court Decisions 87Meu1458, Dec. 22, 1987; 94Da21320, Jan. 12, 1995; 94Da21320, Jan. 12, 1995). The court below held that the loan agreement in this case against the plaintiff and issuance of promissory notes pursuant thereto are invalid as a false declaration on the ground that the plaintiff is the non-party company, and that the defendant violated the above provisions of the loans to the non-party company under the Mutual Savings and Finance Company Act, and thus, it does not constitute an unlawful interpretation of the Supreme Court precedents regarding the legal interpretation of Article 12 of the Mutual Savings and Finance Company Act as stated in the judgment below.

Ultimately, we cannot accept the judgment of the court below merely because it has mistakenly understood the judgment of the court below or criticizes the judgment of the court below on the premise that

4. 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 Ahn Yong-sik (Presiding Justice)