Korea Technology Finance Corporation (Attorneys Kim Sung-sung et al., Counsel for the defendant-appellant)

Defendant (Attorney Jeong-hee, Counsel for the defendant-appellant)

September 11, 2007

Busan District Court Decision 2006Gadan116708 Delivered on November 21, 2006

1. The part against the defendant in the judgment of the court of first instance is revoked. The plaintiff's claim against the defendant is dismissed.

2. The Plaintiff is responsible for total costs of litigation between the Plaintiff and the Defendant.

1. Claim: The defendant shall jointly and severally pay to the plaintiff 11,372,645 won and 110,919,873 won from March 28, 2006 to June 27, 2006, 14% per annum from June 28, 2006 to the delivery date of a copy of the complaint of this case, 16% per annum from June 28, 2006 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal: It is so ordered;

1. Basic facts

A. On March 2, 2001, the Plaintiff operated a mutual intent company called "sulg industry" in the name of Nonparty 2, and borrowed KRW 150 million from Gyeongnam Bank Co., Ltd., in order to guarantee its loan obligations, the Plaintiff entered into a credit guarantee agreement between Nonparty 1 and Nonparty 2, and then issued to Nonparty 1 a credit guarantee statement of KRW 127.5 million in the credit guarantee principal. On March 5, 2001, Gyeongnam Bank loaned KRW 150 million to Nonparty 1 in accordance with the Plaintiff's credit guarantee agreement.

B. Meanwhile, on March 2, 2001, the Defendant believed Nonparty 1 to be Nonparty 2, and signed and sealed Nonparty 1 in the column of joint and several sureties of the above credit guarantee agreement with the intention to jointly and severally guarantee all debts to be borne by Nonparty 1 to the Plaintiff pursuant to the above credit guarantee agreement.

C. A guarantor of a guarantee accident in which Nonparty 1 could not pay the above principal and interest of loan, and the Plaintiff, as a guarantor, subrogated to the Gyeongnam Bank Co., Ltd. for KRW 128,186,613 on March 28, 2006.

D. On the other hand, the details of changes in the rate of delay damages and delay damages under the above credit guarantee agreement are as follows:

(1) The rate of delay damages: 14% per annum for three months from the date of subrogation, and 16% per annum from the next day to the date of closing argument in

(2) A fixed damages for delay incurred as a result of collecting KRW 7,934,910 on May 23, 2006, KRW 452,772 on June 13, 2006, KRW 9,90 on June 13, 2006, and KRW 11,840 on July 5, 2006, respectively.

【Ground of recognition】 Evidence Nos. 1 and 2-1, Evidence No. 3, Evidence No. 1, Evidence No. 6-1 and 2-2, the testimony of Non-Party 2 and the purport of the whole pleadings

2. The assertion and judgment

(a) Formation of obligation to pay deposits;

According to the above facts, the defendant is obligated to pay the remaining deposit and damages for delay to the plaintiff pursuant to the above credit guarantee agreement, unless there are special circumstances.

B. Judgment on the defendant's defenses to revoke his/her expression of intent due to mistake

When entering into a joint and several guarantee contract, an error on whose authorization the debtor is is shall be deemed to be an error on the important part of the expression of intent, and the fact that the defendant misleads Nonparty 1 as the person subject to guarantee and provided joint and several guarantee for the above credit guarantee agreement is as seen earlier, and even if Nonparty 1 and Nonparty 2 knew that he was operating a mutual company called "sule industry" in the name of Nonparty 2 at the time of the above joint and several guarantee contract, there is no assertion or proof by the plaintiff as to the fact that the contract was concluded even if Nonparty 1 and Nonparty 2 knew that he was not the same person, unless there is any assertion or proof by the plaintiff as to the fact that the contract was concluded. Thus, the defendant's objection to the above joint and several guarantee was revoked by being delivered to the plaintiff on January 16, 2007 by the statement of grounds for appeal as of January 19, 2007.

3. Conclusion

Therefore, the plaintiff's claim against the defendant is dismissed due to the lack of reason, and the part against the defendant in the judgment of the court of first instance with different conclusions is unfair, and it is revoked, and the plaintiff's claim against the defendant is dismissed, and it is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)