[1] Whether a debtor and an underwriter are jointly and severally liable in a overlapping assumption of an obligation (affirmative in principle), and whether a quasi-joint and several liability relationship exists where an underwriter does not receive a request from a debtor (affirmative)

[2] Criteria for determining the share of the obligor jointly and severally liable for repayment and other joint discharge at his own expense, which can be claimed to the other obligor

[1] Since it is very rare to take over the obligation under a contract with the obligee without the obligee's request in the overlapping assumption of obligation, the obligor and the underwriter are in principle a joint and several liability relationship with a subjective joint and several liability relationship, and if there is no subjective joint and several liability relationship due to the obligor's request, it shall be deemed that there is no subjective joint and several liability relationship.

[2] When a person jointly and severally liable has obtained the repayment or other joint discharge at his own expense, the right to indemnity against the other person jointly and severally liable may be exercised, and the share to be borne shall be presumed to be equal, but if there is a special agreement between the persons jointly and severally liable on the portion to be borne, or if there is no special agreement between them concerning the portion to be borne by each

[1] Articles 413 and 539 of the Civil Act / [2] Articles 413, 424, and 425 of the Civil Act

[1] Supreme Court Decision 2009Da32409 decided Aug. 20, 2009 (Gong2009Ha, 1540)

Nasung Co., Ltd. (Attorneys Jeon Sung-soo et al., Counsel for the defendant-appellant)

Korea Land Trust Co., Ltd. (Law Firm current, Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

Lot Construction Co., Ltd. (Law Firm Sejong, Attorneys Exclusive-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na96569, 96576 decided October 11, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 through 4

In the overlapping assumption of obligation, it is very rare to accept the obligation under a contract with the obligee without the obligee’s request. As such, in principle, the obligor and the underwriter are jointly and severally liable in a subjective joint and several liability relationship, and in a case where there is no subjective joint and several liability relationship due to the obligor’s request by the underwriter (see Supreme Court Decision 2009Da32409, Aug. 20, 2009, etc.). In addition, when the obligor and the obligor jointly and severally liable have received repayment or other joint and several liability at their own expense, they may exercise the right to demand reimbursement for the portion to be borne by other obligors. In this case, the share to be borne is presumed to be equal, but if there is a special agreement on the portion to be borne by the obligor or there is a difference in the ratio of each obligor’s profit in relation

In light of the reasoning of the judgment below and the record, the plaintiff as an executor, as the independent party intervenor, constructed condominiums and annexed facilities on the project site of this case as a contractor, and entered into the business agreement of this case for the purpose of selling the site and building with trust property. ② Under the business agreement of this case, the plaintiff concluded the loan agreement of this case with the purpose of raising the total amount of business funds, such as land and construction cost, and upon termination of the contract of this case, the plaintiff would immediately pay the principal and interest on the loan of this case and other business investment expenses under the above loan agreement. ③ The intervenor agreed to concurrently accept the loan of this case where the intervenor failed to pay the debt of this case by the final repayment date. ④ The loan of this case from March 28, 2008 to January 28, 2009, the plaintiff was not liable to the plaintiff for the interest on the loan of this case and the interest on the loan of this case due to the loan of this case from 2008 to 2009.

In light of the legal principles as seen earlier, it is reasonable to view that the Intervenor jointly assumed the instant loans and thus, the Plaintiff and the Intervenor are jointly and severally liable for the instant loans, and that the Plaintiff finally agreed between the Plaintiff and the Intervenor to bear the instant loans, or that at least, the Plaintiff used the entire amount of the instant loans to be borne by the Plaintiff as the project expense designated by the Plaintiff as the beneficiary, in its internal relationship.

Therefore, although the court below erred in finding the intervenor's joint and several debt assumption as a joint and several surety, the court below's conclusion that the intervenor can exercise the plaintiff's right to indemnity against the full repayment amount of the loan in this case is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the assumption of joint and several debt, or omitting judgment.

2. As to the fifth ground for appeal

A. In light of the reasoning of the judgment below and the record, the purpose of the instant business agreement is to construct condominiums and ancillary facilities on the instant land and sell the site and buildings in trust property; ② The instant trust agreement provides for the trust business in which the instant business is performed; ② all expenses necessary for the maintenance, etc. of the name of the instant tourism business operator and the name of the instant owner of the instant building (hereinafter collectively referred to as “each of the instant titles”) are paid from trust property; ③ Article 27(2) of the instant business agreement provides for the purport that “where the instant business agreement is terminated prior to the approval for sale, the Defendant disposes of trust property (including business rights) at the request of the Korean bank at the public sale by the appraisal agency designated by the Korean bank; or transfers ownership to the national bank or the national bank designated by the Korean bank.” Article 34(2)4 provides for the purport that “In the event of the Plaintiff’s default of obligation, etc., the Plaintiff waives its rights under the business agreement as well as all rights related to the authorization and permission of the instant business, such as rights under trust agreement.”

Therefore, in light of the following circumstances revealed in the above facts, i.e., the title of this case appears to have been necessary along with other trust property for the progress of the business of this case, ii) the expenses incurred in the maintenance, etc. of each name of this case are deemed to have been included in the disposal expenses of trust property, iii) the parties to the business agreement of this case and the trust agreement of this case can be deemed to have secured all rights to the business site of this case and each name of this case as real estate securing the debt of this case, it is reasonable to deem that the parties to the business of this case, including the plaintiff and the defendant, and the lender, agreed to the each name of this case

Therefore, although the court below stated that each name of this case constitutes "other assets generated in the course of performing trust affairs" as stipulated in Article 11 subparagraph 8 of the trust deed of this case, the court below's conclusion that each name of this case constitutes trust property is just and acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the law of logic and experience and free evaluation of evidence.

B. Furthermore, the lower court determined that the Intervenor could seek the transfer of each name, which is trust property, from the beneficiary’s qualification, to the extent that the Intervenor, by subrogation of the obligee, exercised the instant first priority pledge by the lender, or by exercising the Intervenor’s second priority pledge, acquired the instant beneficial interest under the instant trust agreement by exercising the Intervenor’s second priority pledge as the obligee’s subrogation.

In light of the relevant legal principles and records, although the reasoning of the lower court was somewhat inappropriate, the lower court’s conclusion that the Intervenor may seek a transfer of each name, which is a trust property, from the beneficiary’s qualification, pursuant to the termination of the trust contract of this case is justifiable and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err

3. Regarding ground of appeal No. 6

According to the reasoning of the judgment below, in light of the fact that the right to benefit under the trust agreement of this case is "the right to receive money generated from the trust real estate and its operating profit and the equivalent money," and it is distinguishable from the right to claim ownership transfer registration of each real estate of this case, the court below determined that each of the contract of this case cannot be deemed null and void since the right to claim ownership transfer registration of each of the real estate of this case is not included in the right to benefit under the trust agreement of this case which is the object of each

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the right to benefit under the trust contract

4. Conclusion

All appeals are 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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)