In the case of joint immunity, which is the requirement to exercise the right of indemnity between the joint guarantors who have guaranteed part of the guarantee;

Where several joint and several sureties jointly and severally guaranteed each other exercise the right to indemnity against the other joint and several sureties on the ground that one joint and several sureties performed the obligation, they shall be the joint and several sureties who jointly and severally guaranteed the obligation. Where each joint and several sureties partially guaranteed the obligation of the principal obligor within a certain limit, barring any special circumstance, each surety shall not be liable for the obligation exceeding the limit of the guarantee, but even if a part of the principal obligation is repaid, if there exist the principal obligation within the limit of the guarantee, it shall not be exempted from the guarantee liability for the remaining obligation. In such a case, even if one of the joint and several sureties reduced the principal obligation by the repayment, if the remainder of the principal obligation exceeds the limit of the liability of the other joint and several sureties, the other joint and several sureties shall be deemed to have no part of the guarantee liability for the whole amount, and therefore, in such case, the joint and several sureties who discharged the obligation may not exercise the right to indemnity against the other joint and several sureties whose responsibility of guarantee remains on the ground of the repayment.

Article 448 of the Civil Act

Supreme Court Decision 84Da1261 delivered on March 12, 1985 (Gong1985, 540) Supreme Court Decision 86Meu1729 delivered on October 25, 198 (Gong1988, 1468), Supreme Court Decision 94Da4044 delivered on June 30, 1995 (Gong195Ha, 2549)

Korea Credit Guarantee Fund (Law Firm Busan General Law Office, Attorney Yoon In-person, Counsel for defendant-appellant)

Defendant (Attorney Hwang Young-nam, Counsel for defendant-appellant)

Ulsan District Court Decision 2000Na2610 delivered on July 26, 2001

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

1. Summary of the judgment below

The court below accepted the judgment of the court of first instance. The plaintiff guaranteed the debt owed by the non-party to the non-party to the non-party to the non-party to the non-party to the third party three times from March 26, 1993 to March 23, 196, up to KRW 100 million. In the event the plaintiff paid the debt to the non-party to the non-party to the non-party to the third party, the non-party made a credit guarantee agreement with the non-party to pay both the amount of subrogation and the expenses to compensate for the claim for reimbursement against the third party. The non-party, under the plaintiff's credit guarantee, entered into a credit guarantee agreement with the non-party to the non-party to the non-party to the non-party to the non-party 1 to the non-party 20 billion won (hereinafter referred to as the "non-party 1 bank"), as stated in its reasoning, on March 29, 193 (the judgment of the court of first instance is 190 million won or more, and the defendant 2000 million won of the above loan to the plaintiff and the non-party 1.

2. The judgment of this Court

However, on the premise of fact-finding that the Defendant jointly guaranteed the amount of KRW 100 million out of the debt owed to the non-party bank, the lower court’s decision that recognized the Plaintiff’s right to indemnity against the Defendant is difficult to accept for the following reasons.

A. First of all, the court below determined that the plaintiff and the defendant were jointly and severally and severally guaranteed by the non-party bank within the limit of KRW 100 million. However, according to the records, on March 26, 1993, the plaintiff entered into a credit guarantee agreement with the non-party bank to provide credit guarantee services within the limit of KRW 100 million per original amount for the debt to be borne by the non-party to a third party, and based on such agreement, the above amount is KRW 50 million per the same day, KRW 20 million on April 25, 1995, and KRW 30 million on March 23, 1996 and KRW 20 million on March 23, 1996, and the non-party acquired each of the above loans from the non-party bank under its credit guarantee agreement with the non-party bank within the limit of KRW 200 million, and it is difficult to recognize the fact that the defendant entered the above comprehensive credit guarantee agreement with the non-party bank and the non-party joint and the non-party joint surety bank respectively.

B. Where several joint and several sureties stand a joint and several liability for the principal debtor, the requirements that one joint and several sureties jointly discharged another joint and several sureties for the repayment of the principal debtor's obligation. In the event that each joint and several sureties partially guaranteed the principal debtor's obligation within a certain limit, barring any special circumstance, each surety shall not be liable for the amount exceeding the limit of the guarantee, but even if a part of the principal obligation is repaid, if the principal obligation remains within the guarantee limit, the remaining obligation shall not be exempted (see Supreme Court Decisions 84Meu1261, Mar. 12, 1985; 94Da4044, Jun. 30, 1995). In such a case, even if one of the joint and several sureties reduced the principal obligation by the repayment of the principal obligation, if the remaining amount of the principal obligation exceeds the limit of the other joint and several sureties's obligation, it shall be deemed that the other joint and several sureties still has no other joint and several sureties's obligation to discharge.

C. However, according to the records, as of November 30, 1998, the plaintiff paid for the non-party bank as of November 30, 1998, the amount of KRW 808,976,643 still remains (the same day is deemed to have been transferred to the Korea Asset Management Corporation). There is no evidence to deem that the plaintiff's debt is newly borne after the plaintiff paid for the debt. Even if the plaintiff paid the debt under the above credit guarantee agreement, the defendant's joint and several liability still exists within the scope of the guarantee liability, and therefore, the defendant's joint and several liability still remains within the scope of the guarantee liability, and as long as the plaintiff did not jointly grant the defendant's debt due to the plaintiff's repayment, the plaintiff cannot exercise his right

D. Therefore, the judgment of the court below is erroneous in finding facts against the rules of evidence, and it is erroneous in the misapprehension of legal principles as to joint immunity between joint guarantors. Thus, the appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)