[1] In a case where a person who has become a guarantor for one of the vicarious debtors jointly and severally liable has repaid his/her obligation on behalf of the guarantor, whether the other vicarious debtors jointly and severally liable may exercise the right of recourse only to the portion of the obligation

[2] In a case where one of the joint tortfeasors has extinguished by prescription the liability for damages, and the other joint tortfeasor has paid damages exceeding the part of his/her liability to the victim, whether the other joint tortfeasor who has paid damages can exercise the right to indemnity against the other joint tortfeasor whose liability for damages has been extinguished by prescription (affirmative)

[1] Articles 447, 481, and 482 of the Civil Act / [2] Articles 162(1), 421, 425(1), 760(1), and 766 of the Civil Act

[1] Supreme Court Decision 95Da47176 Decided February 9, 1996 (Gong1996Sang, 919), Supreme Court Decision 2007Da37530 Decided July 24, 2008 (Gong2008Ha, 1227), Supreme Court Decision 2009Da85861 Decided May 27, 2010 (Gong2010Ha, 1246) / [2] Supreme Court Decision 97Da42830 Decided December 23, 1997 (Gong198Sang, 380), Supreme Court Decision 2005Da19378 Decided January 27, 2006 (Gong206Sang, 329)

Hando Construction Co., Ltd. and one other

Administrator of Green Industry Co., Ltd. (Law Firm Shin & Kim, Attorneys Yellow-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na88544 decided June 9, 2010

The part of the judgment below against the defendant is reversed, and this part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. Determination on grounds of appeal Nos. 2 and 3

Where a person who has become surety for one of the joint and several obligors jointly and severally liable has repaid his/her obligation on behalf of the surety, the surety may exercise his/her right to reimbursement against the other vicarious and several obligors who are not the surety (see, e.g., Supreme Court Decisions 95Da47176, Feb. 9, 1996; 2009Da85861, May 27, 2010). In cases where one of the joint and several obligors compensates the victim for damages exceeding the portion of his/her obligation after the prescription period has expired, the other joint and several obligors may exercise their right to reimbursement against the other joint and several obligors (see, e.g., Supreme Court Decisions 97Da42830, Dec. 23, 1997; 2005Da19378, Jan. 27, 2006).

In the same purport, the plaintiffs are entitled to exercise their right to reimbursement against the non-party company and quasi-joint and several liability relationship with the non-party company by paying damages incurred by the construction of this case to the non-party company as joint and several liability joint and several liability joint and several liability relationship with the non-party company. After receiving the plaintiffs' claim as to the cause of the claim, the plaintiff's claim is justified in rejecting the defendant's claim that the liability against the non-party company's non-joint and several liability is already extinguished by prescription at the time of the plaintiff's repayment. There is no error in the misapprehension of legal principles as to the quasi-joint and several liability, Article 240

2. Judgment on the fourth ground for appeal

This part of the grounds of appeal is that the court below acknowledged the exemption of interest, etc. after the commencement of rehabilitation procedures, according to the rehabilitation plan against the defendant approved before the date of the closing of argument in the court below. However, it is clear in the record that the defendant's new facts that the defendant asserted only before the closing of argument in the court of final appeal, which were alleged by the court of final appeal, are not subject to ex officio investigation, and thus, it cannot be a legitimate ground of appeal. The claim in this case is seeking confirmation of rehabilitation claims against the rehabilitation company, and since the plaintiff's rehabilitation claim in this case becomes final and conclusive, all or part of the confirmed claims are subject to alteration as prescribed in the rehabilitation plan. Therefore, this part of the grounds of appeal cannot be accepted.

3. Judgment on ground of appeal No. 1

As a guarantor of a non-party company, the court below acknowledged the Plaintiff’s claim in this case seeking reimbursement after paying the cost of repairing defects that include the construction portion of the rehabilitation company, as a guarantor of the non-party company, as it is, KRW 168,361,560.

However, according to the records, the defendant stated the preparatory brief (record 162 pages) dated July 17, 2008 at the first instance court's first hearing date, and the non-party union received guarantee of KRW 805,738,00 from the Construction Mutual Aid Association in accordance with the contract with the non-party company, and the non-party union received KRW 966,885,600, including interest from the Construction Mutual Aid Association as a result of the claim lawsuit, and the plaintiffs asserted that the construction mutual Aid Association was paid KRW 966,885,60, including the interest. The plaintiffs did not respond to the claim. Thus, the court below found the part concerning the above facts of the defendant's assertion as the plaintiffs' confession and examined the part to be deducted according to the repayment of the Construction Mutual Aid Association, which is alleged by the plaintiffs, and it is obvious that the judgment of the court below was unlawful and that the judgment of the court below affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)