Industrial Bank of Korea (Limited LLC, Attorneys Kang Jong-young et al., Counsel for the defendant-appellant)

Gyeonggi Credit Guarantee Foundation (Law Firm Rotex, Attorneys Kim Yoon-kin, Counsel for defendant-appellant)

March 8, 2016

1. The defendant shall pay to the plaintiff 180,00,000 won with 4% per annum from June 27, 2014 to July 24, 2014; 4.611% per annum from the next day to January 5, 2015; 20% per annum from the next day to September 30, 2015; and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 180,000,000 won with 4% interest per annum from June 27, 2014 to July 24, 2014, 4.61% interest per annum from the next day to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. In accordance with a credit guarantee agreement with the non-party corporation, the defendant issued a credit guarantee certificate as follows.

1) On July 30, 2010, the Defendant issued to the National Agricultural Cooperative Federation of Korea a letter of credit guarantee of KRW 50,000,00 of the guaranteed principal, KRW 50,00,00 of the guaranteed principal, KRW 100 of the guaranteed principal, KRW 100,00 of the guaranteed principal, KRW 2 of the guaranteed principal, KRW 150,000,00 of the guaranteed principal, KRW 150,000,00 of the guaranteed principal, until June 30, 2014, respectively, and the Defendant received the credit guarantee loan of KRW 50,000,000 from the National Agricultural Cooperative Federation of Korea on August 2, 2010, KRW 150,000 and KRW 150,000,00 of the guaranteed principal, and KRW 10,000 of the guarantee loan of each of the above case (hereinafter “the Defendant”).

2) On June 30, 201, the Defendant issued to the Plaintiff a credit guarantee statement with the amount of KRW 180,000,000, the guaranteed amount of KRW 180,000,000, Nonparty Co., Ltd., and the term of guarantee until June 29, 2012, the loan of small and medium enterprise in the subject of loan, and the credit guarantee statement with the rate of KRW 90,00. On June 30, 2011, Nonparty Co., Ltd. received the loan of KRW 200,000,000 from the Plaintiff (hereinafter “instant second loan”), and the Defendant provided a credit guarantee (hereinafter “instant two guarantee”). However, the said credit guarantee statement added the terms and conditions of repayment of the entire amount of the loan of this case to the instant special agreement (hereinafter “instant special agreement”).

3) On June 29, 2012, the maturity date of the instant guarantee, the Defendant issued to the Plaintiff a letter of credit guarantee at the rate of 90% until June 28, 2013, a letter of credit guarantee at the rate of 180,00,000 won guaranteed (credit No. 4 omitted), the guaranteed amount of which is 180,00,000,000 won (credit No. 4 omitted), the non-party guarantor company, and the guaranteed period of which are 180,000,000 won (hereinafter “instant three loans”) for the extension of the credit period from the Plaintiff on June 28, 2012, and the non-party company received a refund loan from the Plaintiff on June 29, 2013 (hereinafter “the instant credit guarantee”). The Defendant guaranteed the above debt of the non-party company within the scope of the said credit guarantee certificate (hereinafter “the instant credit guarantee”).

B. However, Nonparty Company paid only interest on the instant three loans until June 26, 2014, and lost the benefit of time due to the Plaintiff’s failure to repay the principal. On July 24, 2014, the Plaintiff notified the Defendant of a credit guarantee accident, and on August 12, 2014, filed a claim against the Defendant for payment of KRW 180,961,633, total amount of the principal guaranteed and interest based on the agreed interest rate.

C. Meanwhile, the main contents of the credit guarantee agreement attached to the instant guarantee agreement are as follows.

Article 3 Definitions of Terms

The definitions of terms used in this Clause shall be as follows:

2. The term “credit guarantee terms” means the creditors, guarantors, guaranteed amount, term of guarantee, method of guarantee, subject of loan, rate of guarantee and special agreement for guarantee specified in the credit guarantee agreement;

Article 5 Establishment of Credit Guarantee Relationship

1. The credit guarantee relationship under this letter shall be established only when all of the following subparagraphs are satisfied:

1. A loan shall be handled in compliance with the conditions of credit guarantee;

3. The loan shall be implemented in whole or in part within 60 days from the date of notification of the credit guarantee;

(2) It shall be established only if a creditor executes all or part of a loan in compliance with the credit guarantee conditions within 60 days from the date of issuance of a letter of guarantee stated on the front of this letter.

3. The Foundation shall assume the responsibility for guarantee only for the first loan implemented in compliance with the conditions of credit guarantee within 60 days from the date of issuance of this letter of guarantee.

Article 22 Exemption from Liability

(1) In any of the following cases, the Foundation shall not be held responsible for all or part of guaranteed liabilities:

1. Where he violates the conditions of a credit guarantee (including a special agreement for a guarantee);

4. Where he/she implements a loan, in violation of Article 5;

(2) The details and scope of immunity under paragraph (1) shall be determined by the Foundation and notified separately to creditors.

[Ground of recognition] Facts without dispute, Gap 1 through Gap 6, Eul 1-1 through Eul 2-3, Eul 5, the purport of the whole pleadings

2. Judgment on the party's assertion

A. Determination on the cause of the claim

Under the basic facts, the Defendant is obligated to pay the instant three loans to the Plaintiff under the guarantee contract of this case as a result of the occurrence of an accident under the guarantee contract of this case. The above loans amounting to 180 million won per annum from June 27, 2014 to July 24, 2014; and the agreement on such loans amounting to 4,611% per annum from the following day to the date of July 24, 2014; or there is no dispute between the parties; and the Defendant is able to recognize the amount of KRW 180,00,000 as well as the amount of KRW 15% per annum from the date of June 27, 2014 to July 24, 2014 to the date of 15.5% per annum from the following day to the date of delivery of a copy of the complaint of this case; and the annual interest rate of KRW 180,500 per annum from the day of 25.15% per annum from the date of this case.

B. Determination on the Defendant’s assertion

1) The Defendant asserts that the instant 3 guarantee agreement was not a separate agreement from the instant 2 guarantee agreement, but merely an extension agreement for the term of the instant 2 guarantee agreement. The Defendant asserted that the instant 2 guarantee agreement was not concluded on the ground of the violation of the terms and conditions of the credit guarantee agreement or that the Defendant was exempted from the Defendant’s liability to guarantee because the Plaintiff did not perform the instant 1 loan obligation even until July 2014, despite the Plaintiff decided to repay the entire amount of the instant 1 loan pursuant to the instant agreement

In light of the following circumstances, the instant 2 guarantee and the instant 3 guarantee are identical to all the conditions except for the term of guarantee (amount of guarantee, surety, loan holder, loan lender, loan subject, and guarantee ratio, etc.). In particular, the instant 3 guarantee are subject to the collection of the entire amount of the instant 2 loan obligations subject to the instant 2 guarantee, and the instant 3 loan was made for the purpose of replacing the instant 2 loan for the substitute purpose under the instant 3 guarantee agreement, etc., the instant 3 guarantee contract is an extension of the term of the instant 2 guarantee agreement, which is identical to the said 2 guarantee agreement (see Supreme Court Decision 97Da16077, Feb. 27, 1998, etc.).

Furthermore, as seen earlier, Article 3 subparag. 2 of the Credit Guarantee Terms and Conditions (including a special contract for guarantee within the scope of the terms and conditions of a credit guarantee), the purport of the "credit guarantee relationship to be treated in conformity with the terms and conditions of a credit guarantee" under Article 5(1) of the Credit Guarantee Terms and Conditions, and the purport of the "credit guarantee relationship to be carried out in whole or in part within 60 days from the date of the notification of the credit guarantee," and Article 22(1)4 of the Credit Guarantee Terms and Conditions (hereinafter referred to as the "the defendant shall not be liable for the guarantee when he carried out a loan in violation of the above terms and conditions of the credit guarantee"), and the two guarantees in this case include the "requirements for the full repayment of the loan obligation" as the special agreement in this case.

However, if it is unclear that the purpose of the Regional Credit Guarantee Foundation's terms and conditions should be interpreted favorably to customers, in light of the principle of interpreting the terms and conditions of credit guarantee (Article 5 (2) of the Regulation of Terms and Conditions Act), the contents of the special credit guarantee agreement which limits liability should be clear, and if it is unclear, it shall be strictly interpreted in accordance with the terms and conditions of credit guarantee as stated in Article 22 of the Credit Guarantee Terms and Conditions so that it can be favorable for customers. Article 22 of the Credit Guarantee Terms and Conditions provides that "if it violates the terms and conditions of credit guarantee," and the standard of credit guarantee is also defined as "if it is in contravention of the terms and conditions of credit guarantee" as the condition of the suspension of the credit guarantee agreement, it is difficult to find the Plaintiff to be exempted from the liability of the Plaintiff for the non-performance of the terms and conditions of the credit guarantee agreement, as well as the terms and conditions of the credit guarantee agreement, which are set forth in Article 22 of the Special Agreement.

2) The defendant asserts that the contract of this case was revoked through the delivery of the reply of this case, because he was aware that the debt of this case was fully repaid according to the contract of this case, and that the contract of this case was concluded three guarantee contracts of this case.

In light of the fact that there was an error in the contents of a juristic act and that there was a critical impact on the declaration of intent, that is, the person who revokes the declaration of intent on the ground of mistake must prove that the mistake would not have made the declaration of intent without the mistake (see, e.g., Supreme Court Decision 2007Da74188, Jan. 17, 2008). However, as seen earlier, the special agreement of this case is not a condition for the suspension of the guarantee contract, but rather a condition for the suspension of the guarantee contract, and is interpreted as being able to exercise the right under the guarantee contract when the plaintiff subsequently performed the said special agreement, and Article 9 subparagraph 1 of the credit guarantee agreement provides that the creditor shall immediately notify the defendant of the fact where the whole or part of the guarantee repayment loan was extinguished, but the defendant did not confirm whether the special agreement of this case was fulfilled without such notification and concluded the guarantee contract of this case 3rd, the defendant did not have any reason to acknowledge that there was any error in the contents of the guarantee contract of this case.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judge Han-dae