The credit guarantee fund shall enter into a credit guarantee agreement that "the bank immediately after the completion of the facility concerned shall terminate the guarantee by establishing the first priority collective security right under the Factory Mortgage Act" issued by the Fund in order to secure the liabilities of facility loans to the bank of the respondent, the purport of the exemption clause that the guarantee liability shall be exempted in the event of the violation, and whether the obligation of the bank to acquire the above collateral shall cease to exist if a credit guarantee accident, such as a transaction suspension order

The credit guarantee certificate issued by the Korea Credit Guarantee Fund in order to secure the obligation to provide a loan for the facilities to the bank of the respondent, "the bank shall terminate the guarantee in preference by establishing the first priority right under the Factory Mortgage Act." The purpose of the credit guarantee clause is to "the guarantee above the amount calculated by multiplying the appraised value of the facilities by the regulations within the bank at the time of the acquisition of the collateral shall be terminated by the highest ratio of each collateral for each collateral" if the guarantor has acquired the collateral for the facilities installed with the funds borrowed from the bank under the credit guarantee of the Korea Credit Guarantee Fund, the guarantor shall be exempted from the liability to obtain the collateral within the limit of the secured value of the collateral, while the bank shall be exempted from the liability to obtain the collateral, if the guarantor fails to obtain the collateral due to any cause attributable to the bank, and the obligation of the bank to acquire the collateral shall not be extinguished as a matter of course on the ground that the guarantor has suffered a credit guarantee accident such as the transaction suspension before the completion of the relevant facilities. Even if the guarantor has received the disposition of transaction suspension, it shall be exempted from the obligation to the extent of the collateral.

Articles 105 and 428 of the Civil Act

Supreme Court Decision 95Da18734 delivered on July 28, 1995 (Gong1995Ha, 2980), Supreme Court Decision 97Da46030 delivered on March 13, 1998 (Gong1998Sang, 1028), Supreme Court Decision 97Da37821 delivered on August 21, 1998 (Gong1998Ha, 2278)

Gwangju Bank (Attorney Yoon Il-young, Counsel for the defendant-appellant)

(Attorney Lee Jong-soo, Counsel for defendant-appellant)

Gwangju High Court Decision 97Na8747 delivered on August 27, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to the records and reasoning of the judgment of the court below, the defendant filed a credit guarantee statement on December 29, 1995 in order to secure the principal and interest of the company's general funds 70 million won loaned by the plaintiff 70 billion won or more, and the credit guarantee statement stated that "the plaintiff shall establish and terminate the first priority mortgage right pursuant to the Factory Mortgage Act immediately after the completion of the construction of the relevant facilities," and that "if the credit guarantee clause violates this special agreement, the guarantee above the amount calculated by multiplying the appraised value of the relevant facilities by the maximum loan rate of 10 billion won or more shall be terminated at the time of the acquisition of the collateral". The non-party company obtained a loan of 70 million won or more from the plaintiff on January 8, 1996, and completed a registration of preservation of ownership on the building of the company's general funds 】 200 billion won or more, 300 billion won or more for the construction of the company's general funds 】 19.3 billion won or more for the construction of the company.

The contents of the credit guarantee agreement and the exemption clause under the credit guarantee agreement issued by the defendant are as follows: if the non-party company acquires the right to collateral security within the scope of the secured value of the right to collateral security when it acquires the right to collateral security with the facility funds borrowed from the plaintiff under the credit guarantee of the defendant; if the non-party company becomes unable to acquire the right to collateral security due to the plaintiff's reasons attributable to the plaintiff, it is exempted from the defendant's liability to guarantee; and if the non-party company becomes unable to obtain the right to collateral security due to the plaintiff's reasons attributable to the plaintiff, it is not naturally extinguished because the non-party company suffered the credit guarantee accident such as being subjected to the disposition of transaction suspension. Thus, even if the non-party company received the disposition of transaction suspension, it is reasonable to view that the defendant is exempted from the liability to guarantee the facility within the scope of the secured value (see Supreme Court Decision 97Da

On the premise of this view, the court below determined that the defendant was exempted from liability on the ground that the secured value of factory buildings and machinery calculated by the above method exceeds the amount of claims against the non-party company. The plaintiff's acquisition of collateral is merely an act of preserving collateral to facilitate the defendant's right to indemnity, and rejected the plaintiff's assertion that the defendant did not discharge from liability. Furthermore, in light of the records, the court below rejected the plaintiff's assertion that the defendant agreed to discharge the guaranteed liability after the completion of the establishment registration of collateral, on the ground that there is no evidence. In light of the records, the court below's findings of fact and decision are just,

Therefore, the appeal is 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 In-hee (Presiding Justice)