Seoul Guarantee Insurance Co., Ltd. (Law Firm New Name, Attorney Cheong-hwan, Counsel for plaintiff-appellant)

Republic of Korea (Jurisdiction: Air Force Headquarters)

Defendant 1 and three others (Law Firm LLC, Attorneys Cho Young-chul et al., Counsel for the defendant-appellant)

November 27, 2014

Suwon District Court Decision 2012Gadan52270 Decided February 13, 2014

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the Plaintiff.

The part against the Defendants in the judgment of the court of first instance is revoked. The Defendants jointly and severally with the Codefendant Co., Ltd., Ltd., Non-Party 1 and Non-Party 2, as to KRW 54,849,013 and KRW 54,840,00 among them, shall pay to the Plaintiff 15% per annum from June 1, 2012 to September 13, 2012, and 20% per annum from the next day to the date of full payment.

1. Quotation of the first instance judgment

The reasoning for this Court’s reasoning is as follows: ① Defendant 1 (B), Defendant 2, Defendant 3, and Defendant 4’s assertion on the termination of a joint and several several surety contract under the 8th sentence of the judgment of the court of first instance (B) is used as follows; ② The Plaintiff’s new argument in the trial is added with the reasoning of the judgment of the court of first instance, except for the addition of the following determination as to the new argument in the court of first instance, it is identical to the entry of the reasoning of the judgment of the court of first instance under the main sentence of

2. The parts used in the process (Judgment on the defendant's assertion on the termination of a joint and several guarantee contract)

A. Whether the Defendants expressed their intent to terminate the contract

If a person who has become a guarantor for a company's obligations arising from continuous transactions between the company and a third party inevitably leaves the position of director due to the occurrence of significant changes in the situation at the time of the formation of the guarantee agreement, the guarantee agreement can be terminated for this reason. Even if the guarantee limit and the guarantee period under the guarantee agreement are limited, the above termination right does not affect the occurrence of the guarantee right. Meanwhile, if the guarantor of the continuous guarantee agreement fulfills the guarantee obligation under the guarantee agreement, the guarantor of the continuous guarantee agreement must have the right to terminate the guarantee agreement just in light of the ground for recognizing the right to terminate the contract, which is, the person who has guaranteed the guaranteed the guaranteed obligation with uncertain indemnity obligation to be borne by the guarantor of the guarantee agreement. In this case, even in such a case, if the continuous transactions are terminated before the guarantee agreement is terminated or the principal obligation and the indemnity obligation are finalized due to other reasons, the guarantor may not terminate the guarantee agreement on account of changes in circumstances (see, e.g., Supreme Court Decisions 2002Da1673, May 31, 2002).

In light of the above legal principles, as seen earlier, the guarantee against the Plaintiff’s Intervenor (hereinafter “Supplementary Intervenor”) was guaranteed in the first instance trial where the Plaintiff did not perform the obligation under the supply contract of this case to the supplementary intervenor, and it constitutes a so-called continuing guarantee as it guarantees the payment of contract deposit. The guarantee against the Plaintiff also constitutes a guarantee for an uncertain indemnity claim which the Plaintiff would have obtained due to the Plaintiff’s continuous performance of the above guarantee contract. Meanwhile, in full view of the purport of the evidence No. 39-1 through 4, evidence No. 44, and evidence No. 45-1 through No. 4, the Defendants did not express their intent to the Plaintiff on the grounds that the Defendants sent to the Plaintiff the guarantee agreement of the Plaintiff’s joint and several surety No. 20-2 before the termination of the contract of this case, and that the Defendants were exempted from the Defendant’s indemnity insurance contract of this case for the reasons that the Defendants sent to the Plaintiff on December 21, 2012.

(b) The point at which the claim for reimbursement against the plaintiff of Blulue can be confirmed;

(1) The parties' assertion

The defendant asserts that, on April 20, 2012, the supplementary intervenor claimed the payment of the insurance money against the plaintiff on the ground of the occurrence of the insured events, the defendant's claim against the plaintiff was confirmed on the above day.

As to this, the Plaintiff received a request from the Board of Audit and Inspection to recover unjust enrichment equivalent to KRW 2,600,00,000 for blue, and on January 27, 2012, upon the said request, the Plaintiff asserted that, at the same time, the Plaintiff’s liability for reimbursement against the Plaintiff for reimbursement for each of the instant supply contracts was withheld at the same time, at the same time the Plaintiff made a notification of withholding of payment for each of the instant supply contracts, such as advance payment, unpaid repair goods, equipment for repair, and control of the use of government-funded materials, and that, on February 6, 2012, the Plaintiff requested on six services contracts concluded at the Air Force Headquarters on February 6, 2011, including each of the instant supply contracts. As such, the Plaintiff’s liability for reimbursement against the Plaintiff for reimbursement for the amount of 0,000,000,000 for the remaining items, excluding two items under K-16,000,000.

(2) Determination

(A) According to the evidence No. 24-1 of 24, the Air Force Headquarters's statement of Jan. 27, 2012 that "the notice of payment for the need to take measures to preserve claims during the audit process of the Board of Audit and Inspection" can be acknowledged as the fact that the Board of Audit and Inspection notified the Plaintiff that the payment for all services contracted with Blue will be deferred at the request of the Board of Audit and Inspection for the preservation of claims, including each supply contract of this case. However, the notice of the deferment of payment cannot be deemed as the confirmation of the obligation to the Plaintiff of Blue's indemnity against the Plaintiff, and it does not constitute the requirements for the prior indemnity of Article 9 (1) of the Guarantee Insurance Contract No. 24.20, each of the guaranteed insurance coverage agreements of this case, and thus, the Defendants cannot be seen as being exempted from the Defendants' obligation to compensate for damages as 20,000,0000,000,0000,000 won.

3. Determination on additional charges

A. The plaintiff's assertion

The Plaintiff: (1) According to the notice of withholding the above payment, the contract deposit was to be confiscated due to the failure to perform the obligation; (2) the Plaintiff was highly probable as to the fact that the Plaintiff was liable for reimbursement instead of the damages suffered by the Intervenor who is the insured pursuant to each performance guarantee insurance contract of this case; and (3) the Plaintiff’s joint and several liability claim against the Defendants was maintained the identity according to subrogation; and (4) on the other hand, the Defendants’ joint and several liability claim against the Defendants was already established on January 27, 2012, and was already established on January 27, 2012 in accordance with the legal principles of subrogation by the insurer; and (2) the Defendants were liable for reimbursement to the Plaintiff; and (3) even if the aforementioned notification was not finalized at the time of notice of withholding the payment, it is highly probable that the Defendants were not obligated to pay the above amount to the Intervenor, and thus, the Defendants’ joint and several liability claim against the Defendants was not established at the time of termination of the payment contract, and thus, it is not reasonable.

B. Determination

First of all, as to the first argument, the guarantee against the Plaintiff by the Defendants is not a liability for damages to the Intervenor, but a liability for indemnity against the Plaintiff by Bluman, and the above liability for indemnity was finalized on April 20, 2012. Therefore, it is without merit to examine the remainder of the claim by the Plaintiff on a different premise.

Next, as to the second argument, unless the defendants' joint and several liability for indemnity against the plaintiff is terminated continuously before the termination of the joint and several liability contract, or for other reasons, the defendants can terminate the joint and several liability contract, and thereafter the defendants are not responsible for the joint and several liability, as seen earlier. The first plaintiff's assertion on a different premise is without merit.

Finally, as to the third argument, it is insufficient to recognize that there is no reasonable ground for the termination of the joint and several guarantee contract by the Defendants, or there is no other evidence to acknowledge it contrary to the good faith principle. Rather, if a company's officer or employee becomes a guarantor for the company's obligations arising from continuous transactions between the company and a third party inevitably leaves the position of director due to the company's retirement from the position of its officer or employee, the guarantee contract can be terminated on the ground that the situation as at the time of the establishment of the guarantee contract occurs. The Defendants also provided a joint and several guarantee for the claim against the Plaintiff of Blue as a director, auditor, or employee of Blue. The Defendants also provided a joint and several guarantee for the claim against Blue as to Blue's obligation in the position of director, auditor, or employee, as seen earlier, and thus, the facts that the joint and several guarantee contract was terminated as of January 31, 2012.

4. Conclusion

Therefore, all of the plaintiff's claims against the defendants are dismissed as they are without merit, and the judgment of the court of first instance is just in its conclusion, and each appeal against the defendants is dismissed. It is so decided as per Disposition.

Judges Lee Sung-chul (Presiding Judge)