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1. The Plaintiff:
A. Defendant C and D are jointly and severally liable for 40,000,000 won and their related amounts from July 1, 2018 to November 26, 2019.
Reasons
1. Facts of recognition;
A. On July 26, 2017, the Plaintiff entered into a construction contract with Defendant F Co., Ltd. (hereinafter “Defendant Company”) on the construction of neighborhood living facilities located in G and three lots of land (hereinafter “instant construction contract”) and paid KRW 115,00,000 as down payment and intermediate payment.
B. The Plaintiff paid KRW 40 million to Defendant C, and Defendant C prepared and delivered to the Plaintiff a letter of non-performance that he/she would repay the amount of KRW 40 million on December 19, 2017 by September 20, 2018, and Defendant D signed the said letter of non-performance as the guarantor.
C. The Plaintiff, while lending KRW 10,000 to Defendant D, paid the said amount to Defendant E’s account on March 2, 2018. On the same day, Defendant D prepared and delivered to the Plaintiff a letter of default that he/she would repay the said KRW 10,000 to March 31, 2018, and the said letter of default signed and sealed the Defendant Company and Defendant E as the guarantor.
[Ground of recognition] Defendant C and D: Judgment by public notice (Article 208(3)3 of the Civil Procedure Act) (Article 208(3)3 of the Civil Procedure Act)
2. Determination
A. As seen earlier, Defendant C lent KRW 40 million to the Plaintiff, Defendant D guaranteed by the Plaintiff, Defendant D lent KRW 10 million to the Plaintiff, and Defendant Company and E guaranteed by the Defendant Company. As such, Defendant C is the primary debtor, Defendant D is the primary debtor, even if it does not engage in commercial activities jointly with the Plaintiff, the company is deemed as a merchant even if it does not engage in commercial activities (Article 5(2) of the Commercial Act). The act of the merchant is presumed to be an act of the merchant, and the act of the merchant is presumed to be an act of commercial activities (Article 47 of the Commercial Act). In the event there is a guarantor, if the guarantee is a commercial activity or the primary obligation is a commercial activity, the primary debtor and the guarantor
(Article 37(2) of the Commercial Act. Defendant C is an auditor of the Defendant Company.