(영문) 대법원 2015.8.27.선고 2013다88058 판결

1. Article 4 of the Special Act on the Protection of Surety (amended by Act No. 8918 of Mar. 21, 2008 and enforced as of Sep. 22, 2008; hereinafter referred to as the "Guarantee of Surety Protection Act") provides that the maximum amount of a guaranteed obligation must be specified in writing when a guarantee contract is concluded and the guarantee period is renewed. Article 6 provides that a guarantee may be made for a specific continuous contract between a creditor and a principal debtor or for a obligation arising continuously from a specific type of transaction or from a specific cause. In this case, the maximum amount of the guaranteed obligation shall be specified in writing (Paragraph 1), and in this case, a guarantee contract that does not specify in writing the maximum amount of the obligation shall not be effective (Paragraph 2), and Article 11 provides that a guarantee contract that violates this Act and is disadvantageous to a guarantor. In addition, Articles 3 through 8 and 11 of the Addenda of this Act provide that "the first contract or renewal period after the enforcement of this Act shall apply."

2. Based on its stated reasoning, the lower court determined that each renewal contract of this case between the Plaintiff and the Defendant was null and void in accordance with Articles 4, 6(2), and 11 of the Surety Protection Act on November 6, 2008, and November 4, 2009 and November 5, 2010, respectively, on the grounds that the instant renewal contract was renewed on November 6, 2008 and November 4, 2009 and November 5, 2010.

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. A. The collateral guarantee is not only a specific contract between the creditor and the principal debtor, but also a debt arising from other transactions of a certain kind or a debt arising from a specific cause. Moreover, the principal obligation subject to collateral guarantee does not need to be either already or specifically specified at the time of entering into a collateral guarantee contract, but also a specific standard exists to specify the principal obligation as well as an unspecified and unspecified obligation for which an increase, decrease, or a change in the future is anticipated. As such, the collateral guarantee reserves the confirmation of the principal obligation subject to the collateral guarantee at the time of termination of the future collateral guarantee relationship, and thus, the guaranteed obligation to be borne by the guarantor is specifically determined at the time of the completion of the collateral guarantee relationship.

Meanwhile, rather than guaranteeing only the obligation arising from a specific basic transaction contract, in cases where the so-called "limited guarantee contract" is to determine only the kind of basic transaction and guarantee the obligation arising prior to the period for the settlement of accounts under the specific basic transaction contract within the scope of guarantee limit, it does not affect the conclusion or validity of the basic transaction contract, even though the basic transaction contract, which is the cause of the principal obligation, is not concluded prior to the limited guarantee contract, even though the basic transaction contract, which is the cause of the principal obligation, is not concluded prior to the limited guarantee contract. Furthermore, the above limited guarantee contract is planned to separately enter into the basic transaction contract, which falls under the type of the basic transaction. Thus, even if the creditor and the principal agent entered into a new basic transaction contract after the limited guarantee contract or renewed the existing basic transaction contract and increases the amount of the transaction limit within the scope of guarantee limit, it falls under the category of the first basic transaction and becomes beyond the guarantee limit prior to the period for the settlement of accounts due to the occurrence of the basic transaction, and is not within the guarantee limit of 2191.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On November 7, 2007, the Plaintiff and the Defendant entered into the instant contract of collateral guarantee that the Defendant provided a loan to the Plaintiff of A Co., Ltd. (hereinafter referred to as “A”) with the scope of the body of collateral, referring to the limited period of collateral guarantee, referring to 60 million won, and referring to the settlement term of collateral guarantee by written notification (at the expiration of 3 years from the date of the guarantee agreement, the guarantor may designate the settlement term of collateral guarantee by written notification; however, the settlement term of collateral guarantee shall be 14 days after the date of arrival of notice; if short, the settlement term shall be 14 days after the date of arrival of notice; and if short, the settlement term shall be 14 days after the date of arrival of notice).

(2) On the same day, the Plaintiff entered into a loan agreement with A on November 7, 2008 for retail financing general loan (hereinafter “instant loan agreement”). After the maturity of the instant loan agreement, the Plaintiff and A changed the loan amount into the loan agreement on November 6, 2008 as “40 million won,” “the maturity of the loan,” “the date of November 6, 2009,” “the date of the loan,” “the date of November 4, 2009,” “the date of the loan,” “the date of November 5, 2010, 30 million won,” “the amount of the loan,” “the loan agreement,” “the loan agreement,” “the date of November 5, 2010, 2000 won,” “the loan agreement,” and “the loan renewal or renewal date,” “the loan agreement, each of which shall be 100 million won.”

(3) On March 16, 201, the Plaintiff sent to the Defendant a certificate of intent to perform the guaranteed obligation on the ground that the primary debtor of the instant loan contract has defaulted the loan and has lost the benefit of time, and the above certificate of content was served to the Defendant around that time. In light of the legal principles as seen earlier, the instant contract was determined as “the first type of designation that the guarantor may designate by written notification after the lapse of three years from the date of the guarantee agreement, as the instant contract was to guarantee the obligation under the loan contract to the Plaintiff, and the instant contract was for guaranteeing the obligation under the loan contract to the Plaintiff.” Thus, the Defendant may designate the settlement term through written notification at the expiration of three years from November 7, 2007, which is the date of the instant contract. However, there is no evidence to deem that the Defendant designated the settlement term from November 8, 2010 to the time when the instant lawsuit was filed.

In addition, the loan contract of this case between the plaintiff and the principal debtor Gap was renewed on November 6, 2008 and November 4, 2009 and November 5, 2010, respectively, and the plaintiff was signed by the defendant on each column of joint and several sureties of "Additional Terms and Conditions of Alteration of Terms and Conditions of Terms and Conditions of Terms and Conditions of Terms and Conditions of Terms and Conditions of Terms and Conditions of Terms and Conditions of Loan" each time when the loan contract of this case is renewed, and on November 5, 2010, the plaintiff was signed on the application for joint and several sureties, even if it was signed on November 5, 2010, it shall be deemed that the plaintiff confirmed the defendant's intent to guarantee the loan contract of this case, and it shall not be deemed that

Therefore, Article 4, Article 6, and Article 11 of the Surety Protection Act shall not apply to the contract of this case, since the contract of this case was concluded on November 7, 2007, which was prior to the enforcement of the Surety Protection Act, and it may be deemed that it was renewed thereafter.

D. Nevertheless, the court below held that the reorganization of the contract in this case was null and void under Articles 4, 6, and 11 of the Surety Protection Act on the premise that the renewal of the contract in this case was made after the enforcement of the Surety Protection Act, solely based on the grounds stated in its reasoning. The court below erred by misapprehending the legal principles on the renewal of the contract in this case and the application of the Surety Protection Act, thereby affecting the conclusion of the judgment. The ground

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.