Plaintiff

Defendant (Attorney Kim Sang-hoon, Counsel for defendant-appellant)

July 18, 2018

Daegu District Court Decision 2017Gadan3393 Decided February 13, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall jointly and severally pay to the non-party and the plaintiff 120,000,000 won with 15% interest per annum from December 19, 2017 to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against the defendant is dismissed.

1. Determination as to the cause of claim

According to the statement in Gap evidence No. 1, the defendant, on July 14, 2009, delivered to the plaintiff on August 31, 2009, 120,000,000 won in total, and 120,000,000 won in the non-party to the debtor's non-party as joint and several surety. Therefore, the defendant is liable to pay to the plaintiff 120,000,000 won jointly and severally guaranteed by the defendant and damages for delay calculated at the rate of 15% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from December 19, 2017 to the date of full payment.

2. Judgment on the defendant's assertion

A. Summary of the assertion

The Defendant’s joint and several sureties (hereinafter “instant joint and several sureties”) did not set the guarantee period. Since the period of guarantee under Article 7(1) of the Special Act on the Protection of the Surety has elapsed three years since July 14, 2009, each of the instant agreements was concluded, the Defendant’s joint and several sureties liability owed to the Plaintiff was extinguished.

B. Determination

Article 7(1) of the Surety Protection Act provides that “the term of guarantee shall be deemed three years if there is no agreement on the term of guarantee.” However, the term of guarantee under the said provision refers to the specific term “period during which a guaranteed obligation may be incurred”. In the case of a guarantee for a guarantee for a guarantee for a continuing transaction or a continuous transaction, the term of guarantee shall be deemed to be a provision to prevent an unlimited extension of the guarantor’s liability by limiting the term to three years if there is no agreement on the guarantee for a guarantee for a guarantee for a continuing transaction or a continuous transaction. The said provision does not purport to prevent an unlimited extension of the guarantor’s liability by limiting the term to three

However, since the defendant's joint and several guarantee of this case does not fall under the guarantee of the obligation for the probation or the continuous transaction relationship, the defendant cannot assert the extinguishment of the guarantee obligation in accordance with Article 7 (1) of the Surety Protection Act. Therefore, the defendant's above assertion is rejected.

3. Conclusion

The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.

Judges Lee Young-chul (Presiding Judge)