In a case where Company A entered into the first credit guarantee agreement with the Korea Technology Finance Corporation and concluded the second credit guarantee agreement with the Korea Technology Finance Corporation, and concluded the second credit guarantee agreement with the Korea Technology Finance Corporation and met the first credit guarantee agreement with Company B, and the Korea Technology Finance Corporation, which made a payment by subrogation, filed a claim for reimbursement against Company A prior to the establishment of the second credit guarantee agreement with the Korea Technology Finance Corporation which made a payment by subrogation due to the delinquency in the second credit guarantee agreement with the Korea Technology Finance Corporation, the case holding that Company C is unable to exercise the right to indemnity against the Korea Technology Finance Corporation C, and the Korea Technology Finance Corporation cannot exercise the right to indemnity against the Korea Technology Finance Corporation C.

In a case where Company A entered into a first credit guarantee agreement with the Korea Technology Finance Corporation and concluded a second credit guarantee agreement with the Korea Technology Finance Corporation, and concluded a second credit guarantee agreement with the Korea Technology Finance Corporation and repaid the first credit loan as the loan; and Company B paid the second credit loan with the Korea Technology Finance Corporation; and the Korea Technology Finance Corporation, which made a payment by subrogation under the second credit guarantee agreement with Company B, filed a claim for the first credit guarantee agreement against Company B, which made a division of the first credit guarantee agreement with the Korea Technology Finance Corporation before it entered into a second credit guarantee agreement with the Korea Technology Finance Corporation; the first credit guarantee agreement with the Korea Technology Finance Corporation was extinguished on the ground that the first credit guarantee agreement with the Korea Technology Finance Corporation was not identical to the first credit guarantee agreement with the Korea Technology Finance Corporation; since the second credit guarantee agreement was concluded after the merger and merger became effective, Company B did not bear joint and several liability with regard to the second credit guarantee agreement with the Korea Technology Finance Corporation; and even if the Korea Technology Finance Corporation paid the first credit guarantee agreement as the guarantor of the second credit joint and several liability company A by subrogation, the joint and several joint liability.

Articles 232(2) and (3), 527-5(1) and (3), 530-6(1)7, 530-9, and 530-11(2) of the Commercial Act; Articles 447 and 605 of the Civil Act

Korea Technology Finance Corporation (Attorney Socop et al., Counsel for the defendant-appellant)

Masung Energy Co., Ltd. (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2012Da5116164 Decided September 25, 2013

July 15, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 25,963,350 won with 5% interest per annum from June 25, 2012 to the service date of a duplicate of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

(a) Loans extended by the plaintiff's credit guarantee;

1) On February 23, 2006, the Masung C&A Co., Ltd (hereinafter “Nonindicted Company”) and the Plaintiff entered into an agreement on the credit guarantee for individual transactions (hereinafter “instant credit guarantee”) with the following content.

○ Creditor: National Bank (hereinafter referred to as “National Bank”);

○ Credit Guarantee: Plaintiff

○ Principal: Nonparty Company

○ Loan subjects: Enterprise General Fund Loans

○ Amount of loan: 300,000,000 won

○ Method of Guarantee: Individual Guarantee

○ Guarantee Ratio: 85%

○ Principal Guarantee: 255,000,000 won

○ Period of guarantee: Until February 23, 2007

In the event that the plaintiff performed the guaranteed obligation, the non-party company bears the indemnity obligation against the plaintiff, and the non-party who is the representative director of the non-party company is jointly and severally guaranteed by the non-party company.

2) On February 23, 2006, the non-party company obtained a credit guarantee certificate (guarantee number: 10506019; hereinafter “the first credit guarantee certificate of this case”) based on the first credit guarantee agreement of this case from the Plaintiff and submitted it to the National Bank. On February 24, 2006, the non-party company obtained a loan of KRW 300,000,000 from the National Bank as a corporate ordinary loan (hereinafter “the first loan”). The guarantee clause attached to the first credit guarantee agreement of this case (hereinafter “the guarantee clause of this case”) contains the following contents.

Article 5 (Change in Terms and Conditions of Credit Guarantee)

(1) No creditor shall extend the term of guarantee-cum-loan, change the subjects and items of loan, change the debtor, etc. without receiving written notice of change in the terms and conditions of credit guarantee from the plaintiff.

(2) Changes in the terms and conditions of credit guarantee shall be established only where the plaintiff notifies in writing the creditor.

(3) The Plaintiff shall bear liability for guarantee only when the content of a guaranteed loan is modified to comply with the notification of the change in the conditions of credit guarantee.

(4) Where a guarantee method is an individual guarantor, the obligee shall not extend the term of a guarantee repayment in the form of a new loan which generates a new loan, while extinguishing the existing loan by notification of change of the terms and conditions of credit guarantee for the applicant who extends the term of guarantee.

Article 19 (Immunity)

(1) In any of the following cases, the Plaintiff shall not be held liable for all or part of the guaranteed liability:

3. When all or part of a guaranteed loan has been appropriated for the repayment of existing bonds of a creditor without the consent of the plaintiff;

5. Where he/she violates Article 5;

3) On February 21, 2007, the Plaintiff changed the term of guarantee of the first credit guarantee agreement of this case from February 23, 2007 to February 22, 2008; “The term of guarantee of the first credit guarantee agreement of this case shall be changed from February 23, 2007 to February 22, 2008; “The term of guarantee of the first credit guarantee agreement of this case shall be changed from February 22, 2008 to February 20, 2009; “The term of guarantee of the first credit guarantee of this case shall be changed from February 20, 2009 to February 19, 2009; “The term of guarantee of this case shall be changed from February 19, 2010 to February 19, 2010 to each of the above terms and conditions of credit guarantee shall be changed to the new form of guarantee lending.”

4) According to the notice of change in the terms and conditions of each credit guarantee, the maturity of the instant loan No. 1 was finally extended from February 23, 2007 to February 17, 201. In the case of a national bank’s ordinary loan loan, the maximum credit extension period is five years, and if February 25, 2011, the maximum credit extension period exceeds the maximum credit extension period, and the national bank takes measures to recover the instant loan No. 1 loan against the non-party company, the primary debtor, and the Plaintiff, the credit guarantee agent.

5) On February 17, 2011, the non-party company and the Plaintiff concluded an individual transaction credit guarantee agreement (hereinafter “non-party company’s 2 credit guarantee agreement”) with the following contents. On the same day, the Plaintiff terminated the first credit guarantee agreement to the president of the loan guarantee agreement of this case, and subsequently closed the loan guarantee agreement of this case as to the first credit guarantee of this case, and opened a separate loan guarantee ledger for the second credit guarantee of this case.

○ Creditor: National Bank;

○ Credit Guarantee: Plaintiff

○ Principal: Nonparty Company

○ Loan subject: A loan for corporate ordinary working capital.

○ Amount of loan: 300,000,000 won

○ Method of Guarantee: Individual Guarantee

○ Guarantee Ratio: 85%

○ Principal Guarantee: 255,000,000 won

○ Period of guarantee: Until February 17, 2012

In the event that the plaintiff performed the guaranteed obligation, the non-party company bears the indemnity obligation against the plaintiff, and the non-party who is the representative director of the non-party company is jointly and severally guaranteed by the non-party company.

○ Special Agreement: The second credit guarantee of this case is a condition to recover the first credit guarantee certificate of this case.

6) On February 17, 2011, the non-party company received a credit guarantee statement (guarantee No. 1010020,0020) based on the instant credit guarantee agreement from the Plaintiff, and submitted it to the National Bank. On February 18, 2011, the loan subject was made from the National Bank as a corporate ordinary driving loan, and the due date appears to be " February 17, 2011" as "2, 200,000,000 won as stated in evidence No. 7-2," and repaid the debt of the instant loan No. 1 as the second loan.

7) Meanwhile, on February 10, 201, the Plaintiff concluded a credit guarantee agreement between the non-party company and issued the non-party company the second credit guarantee agreement of this case. Around February 10, 201, the Plaintiff: (a) obtained a business registration certificate, corporate register, list of shareholders, list of shareholders, value-added tax base certification, national tax payment certificate, local tax tax payment certificate, financial statement confirmation, statement of financial statement, manufacturing cost statement, statement of financial statements, manufacturing cost statement, statement of profits and losses, profits surplus statement, profits surplus statement, aggregate balance statement, statement of information submission statement, and written consent from the non-party company; and (b) as a result, the Plaintiff’s comprehensive opinion in charge of the non-party company stated that “the first loan of this case was submitted by the national bank to the non-party company for a guarantee collection guarantee for the shortage of the first loan of the loan of this case from the national bank to 25,000,000 won due to the arrival of the maturity of the loan of this case.”

8) On February 15, 2012, the Plaintiff sent to the National Bank a notice of change of the terms and conditions of credit guarantee to the effect that “the term of guarantee of the second credit guarantee agreement of this case is changed from February 17, 2012 to February 15, 2013.” Accordingly, the National Bank extended the term of repayment of the second credit guarantee obligation of this case to February 15, 2013.

9) Since then, the non-party company lost its interest on May 19, 2012 as the non-party company did not pay the debt of the second loan of this case, and on June 20, 2012, the Korean bank claimed against the plaintiff for the performance of the guaranteed obligation under the second credit guarantee agreement of this case.

10) On June 25, 2012, upon the request for the performance of the guaranteed obligation by the National Bank, the Plaintiff subrogated for KRW 258,590,190 to the National Bank (hereinafter “instant subrogated”). On the same day, the Plaintiff recovered KRW 2,626,840 out of the aforementioned KRW 258,590 in the method of offsetting the unpaid guarantee fee by offsetting it. Accordingly, on June 25, 2012, the amount of KRW 255,963,350 (hereinafter “the amount of the subrogated payment”) out of the amount of the subrogated payment as of June 25, 2012 is in the state of default.

B. Merger between the non-party company and the defendant

1) The non-party company was established on February 1, 1999 and operated an automatic control device manufacturing and sales construction business, and an information and communications construction business. The defendant was established on October 26, 1990 and operated an electrical construction business, telecommunications material sales business, etc., and the non-party company and the defendant drafted a merger agreement with the following contents (hereinafter “merger after division”).

○ The non-party company divides the part of the construction business for the construction of the non-party company (registration number No. 110878) into another business sector and merges with the defendant, but the non-party company continues to engage in the remaining business sector, such as automatic control device manufacturing and sales execution business, even after the merger by division.

Pursuant to Article 530-9(3) of the Commercial Act, the defendant comprehensively succeeds only to the obligations related to the information and communications construction sector of the non-party company, and is not jointly liable for the non-party company's other existing obligations.

○ The assets and liabilities to be transferred to the Defendant by a non-party company due to a division and merger shall be based on the “detailed statement of assets and liabilities succeeded by division” prepared on the basis of the balance sheet as of December 31, 2009 (122 equity shares of the non-party company's Information and Communications Mutual Aid Association, 29,000,000 equity shares of the non-party company's loans to the non-party company's Information and Communications Mutual Aid Association, and 9,371,684 won of the non-party company's purchasing obligations of the non-party company, and shall include the rights and obligations of the information and communications construction contract, the information and communications construction records, the information and communications construction work records, the technology development records, and the relationship with the subcontractor. The defendant shall succeed

2) On January 27, 2010, Nonparty Company held a temporary general meeting of shareholders and obtained approval of the agreement of this case by a special resolution of the general meeting of shareholders.

3) On January 29, 2010, the non-party company and the Defendant publicly announced the following matters in the Economic Examination:

On January 17, 2010, the non-party company and the defendant divided the information and communications construction sector of the non-party company into two separate shareholders' meetings, and the non-party company continues to exist, but all the rights and obligations of the non-party company regarding the division are succeeded by the defendant.

○ Object of division and merger: Information and Communication Construction division of the non-party company

The interested parties shall submit their opinions within one month from the date following the date of publication of this public announcement.

4) No creditor of the non-party company who has raised an objection to the instant merger after division within the period specified in the foregoing notice.

5) On March 3, 2010, the non-party company completed the registration of division and merger of this case on March 10, 2010.

6) On the other hand, the non-party company did not go through individual peremptory procedure against the obligee in relation to the instant merger by split.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 1 to 43 (including various numbers, if any) and the purport of the whole pleadings

2. The basic task for determining the cause of the Plaintiff’s claim;

In light of the foregoing, the repayment of the existing debt by providing a new loan only formally without receiving funds, constitutes a separate loan, except in extenuating circumstances, but merely an extension of the maturity of the existing debt, its legal nature should be deemed as a quasi-loan continuing to exist while maintaining its identity (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

On February 18, 201 with respect to the instant loan, the first and second loans are identical to each of the loans amounting to 300,000,000 won, and the loans amount to 300,000,000 corporate ordinary loan (the instant loan) and corporate ordinary loan loan (the instant loan). ② The instant second loan is substantially extended for the extension of the repayment period of the instant first loan, ③ the Nonparty Company received the instant second loan on February 18, 201, and repaid the instant first loan with the instant second loan with the instant second loan, barring any special circumstance, it should be deemed that the instant loan has been extended only to 10,00,000,00,000, and the repayment of the instant first loan with the instant loan by the Defendant Company with the instant second loan was made by a national bank. Thus, the instant loan has to be deemed to have been extended only to 20,000,000,0000 won with the instant loan, barring any special circumstance.

3. Determination on the first cause of the Plaintiff’s first claim (whether the Defendant bears an in personam joint and several liability with respect to the non-party company’s liability for indemnity against the Plaintiff following the subrogation in the instant case)

A. The premise of the judgment [the non-joint and several liability concerning the obligations of the stock company before the merger after division (the division of the company under the Commercial Act is recognized only for the stock company; hereinafter in this case, the "stock company") shall be indicated as the "company"]

In the case of division and merger, the Commercial Act provides that another existing company that merges with the divided company (Article 530-9(3) of the Commercial Act refers to the company that combines the divided property (Article 530-6 of the Commercial Act referred to as the “invested property”) (Article 530-6 of the Commercial Act refers to the company that is the other party to the division and merger; hereinafter referred to as the “Succession company”) shall be jointly and severally liable for the obligations of the company prior to the division and merger (Article 530-9(1) of the Commercial Act). This is a statutory liability imposed to protect creditors who are disadvantageously affected by the collection of claims due to the division of the company, not the original joint and several liability within the meaning of Articles 413 through 427 of the Civil Act (see Supreme Court Decision 209Da95769, Aug. 26, 2010).

Meanwhile, the debt of the company prior to the merger after division, which was liable for the repayment of the said debt, arising before the merger after division takes effect, but yet at the time of the merger after division, includes the debt which has not yet been due (see Supreme Court Decision 2007Da73321, Feb. 14, 2008). Furthermore, even though it had not yet occurred before the merger after division takes effect, it shall include the debt which has already been established with the legal relationship which forms the basis of its establishment (see Supreme Court Decision 2010Da71660, Dec. 23, 2010).

On March 10, 2010, when the first and second credit guarantee agreements of this case are deemed to have been renewed by extending the guarantee term of the first credit guarantee agreement of this case, and thus the first and second credit guarantee agreements of this case maintain its identity, the liability for indemnity against the plaintiff of the non-party company following the subrogation of this case arises when the merger of this case took effect pursuant to Articles 530-11 (1) and 234 of the Commercial Act (the effect of division and merger takes effect as of March 10, 2010), and the registration of division and merger of this case took place on June 25, 2012. However, although the first credit guarantee agreement of this case which is the basis of its establishment took place on February 23, 2006, which is the basis of the first credit guarantee agreement of this case, the defendant shall be held jointly and severally liable pursuant to Articles 530-9 and 530-130 of the Commercial Act as to the non-party company's liability for indemnity under Article 530-12 of the Commercial Act.

B. The plaintiff's assertion

The second credit guarantee agreement of this case is substantially corresponding to the renewal guarantee for which the term of guarantee of the first credit guarantee agreement of this case has been extended. Accordingly, the subrogation of this case has actually fulfilled the guaranteed obligation pursuant to the first credit guarantee agreement of this case. The defendant is liable for the non-party company's non-party company's non-joint and several liability as to the indemnity liability of the non-party company due to the plaintiff's subrogation of this case pursuant to Article 530-9 (1) of the Commercial Act by comprehensively succeeding to the information and communications construction division of the non-party company of this case by the division and merger of this case. Thus,

C. Determination

(4) In light of the above legal principles, it seems reasonable to view that the Plaintiff’s non-party 1 and 2’s credit guarantee agreement of this case is identical to the Plaintiff’s obligee, guaranteed amount, and its joint guarantor at the time of the performance of the guaranteed obligation, and the principal debt of this case is substantially identical. (2) National Bank appears to have disposed of the instant credit guarantee based on the non-party 2 credit guarantee agreement which was issued by itself under the circumstance that the Plaintiff would have been aware of the change of the terms and conditions of the credit guarantee of this case, and thus, it cannot be seen that the Plaintiff cannot be deemed to have arbitrarily handled the instant credit guarantee agreement of this case based on the non-party 1’s credit guarantee of this case’s non-party 2’s credit guarantee of this case’s non-party 1 and non-party 2’s credit guarantee of this case’s non-party 7 credit guarantee of this case’s non-party 1 and the non-party 2’s credit guarantee agreement of this case’s non-party 1 and the non-party 2’s credit guarantee agreement of this case’s credit guarantee.

Furthermore, the second credit guarantee agreement of this case, which is the basis of the payment by subrogation of this case, was concluded on February 17, 201, which was after March 10, 201, when the effect of the merger by division of this case took place, and thus, the defendant did not bear an incidental joint and several liability as to the liability for indemnity against the plaintiff of the non-party company following the payment by subrogation of this case.

Therefore, we cannot accept the plaintiff's above assertion on different premise as above.

4. The judgment on the ground of the second claim by the Plaintiff (whether the Defendant is liable to compensate for the portion of the liability owed by another vicarious debtor as a guarantor of the non-party joint and several liability, one of the quasi-joint and several liability joint and several liability parties to the second loan in this case to the National Bank)

A. The premise for judgment

In the case of a merger by split, the Commercial Act provides that the succeeding company is jointly and severally liable with the divided company for the obligations of the company prior to the merger by split (Article 530-9(1) of the Commercial Act), and provides that the succeeding company shall bear only the obligations with respect to the assets invested by the divided company among the obligations of the divided company by special resolution at the general meeting of shareholders. In this case, if the divided company survives after the merger by split, only the succeeding company shall bear obligations that are not borne by the division (Article 530-9(3) and (2) latter part). The divided company shall publicly announce that any objection is raised to the creditors within two weeks from the date approval by the general meeting of shareholders is approved to the merger by split (Articles 530-11(2) and 527-5(1) of the Commercial Act). If the creditors fail to raise an objection within the objection period, it shall be deemed that the divided company approves the merger by split (Article 530-11(2) and 527-5(3) of the Commercial Act), and Article 27(2) of the Commercial Act shall be excluded.

In light of the above purport of the provisions of the Commercial Act, even if the divided company determined that the succeeded company bears only the liability for the company's property invested among the company's obligations that are divided by a special resolution of the general meeting of shareholders, if the division company omitted the individual peremptory procedure concerning the division and merger with the known creditors, it is reasonable to deem that the divided company and the succeeding company are liable for joint and several liability for the company's obligations before the division and merger by omitting the individual peremptory procedure with respect to the division and merger by a resolution of the general meeting of shareholders. Here, the "creditor known to the company" in this context refers to a creditor who is a creditor, whose claim is known to the company, and whose claim is known to the company, and whether the company is known to the company should be determined by comprehensively taking into account all the circumstances in each case. It is reasonable to deem that the name and address of the company by the company's account book and other grounds include not only the person whose representative director is known to the company, but also the creditor who is known to the company's representative director (see Supreme Court Decision 2011Da38516

B. The plaintiff's assertion

Even if the Plaintiff, not the first credit guarantee agreement of this case, subrogated to the Plaintiff pursuant to the second credit guarantee agreement of this case separate from this case, as long as the first loan debt of this case and the second loan debt of this case are substantially identical, the Defendant is liable for the quasi-joint and several liability with the non-party company as to the second loan debt of this case against the national bank pursuant to Article 530-9 (1) of the Commercial Act.

However, since the Plaintiff, who became a guarantor under the second credit guarantee agreement of this case on behalf of a quasi-joint and several debtor with respect to the second loan obligation of this case, repaid the second loan obligation of this case on behalf of the non-party company that is the guarantor, the Plaintiff may exercise the right of reimbursement against the Plaintiff, who is another quasi-joint and several debtor with respect to the second loan obligation of this case, as to the portion of the liability.

Therefore, the defendant is obligated to pay the balance of the subrogated payment of this case and damages for delay thereof to the plaintiff.

C. Determination

1) Non-party company and Defendant’s secondary loan liabilities of this case

On the other hand, although the written agreement of this case stipulates that the defendant succeeds only to the obligation related to the information and communications construction sector among the debt of the non-party company, and the non-party company opened a temporary general meeting of shareholders and approved the written agreement of this case, it is reasonable to view the non-party company as a creditor of the first loan of this case at the time of the merger after division as a creditor of the non-party company's knowledge. Since the non-party company did not implement the individual peremptory procedure as to the merger after division of this case until the completion of the registration of the merger after division of this case, it shall be deemed that the non-party company and the defendant are jointly and severally liable for the non-joint and several liability with respect to the first loan of this case.

However, as seen earlier, since the debt of the instant second loan is a debt that maintains the identity with the debt of the instant second loan, it is reasonable to deem that the non-party company and the Defendant are liable for non-joint and several liability with respect to the debt of the instant second loan, and accordingly, insofar as the Plaintiff repaid the debt of the instant second loan to the non-party company and the Defendant, which are the joint and several liability for the instant second loan, as the guarantor of the non-party company, among the non-party company and the Defendant, the non-party company and the Defendant, who are the joint and several liability for the instant second loan, can exercise the right to indemnity against the Defendant for the said debt (see Supreme Court Decision 2009Da85861, May 27, 2010).

2) Whether the defendant has a share of expenses

In light of the following: (a) a divided company and a succeeding company are liable for non-joint and several liability before division; (b) a divided company and a succeeding company are liable for a non-joint and several liability before division; (c) a divided company and a succeeding company shall prepare a written agreement for a division and a special resolution of the general meeting of shareholders pursuant to Articles 530-3(1) and (2) and 434 of the Commercial Act and obtain approval from the special resolution of the general meeting of shareholders; and (b) when Article 530-9(3) of the Commercial Act provides that the succeeding company shall only bear the liabilities with respect to the invested property among the liabilities of the divided company, i.e., when the succeeding company determines that it should enter it in the written agreement pursuant to Article 530-6(1)7 of the Commercial Act, the internal share of the divided company and the succeeding company are determined according to its internal share of liability; and (d) it accords with the creditor’s intent to raise an objection against the shareholders exercising voting rights based on the written agreement

Meanwhile, according to Articles 530-9(1), (3) and (2) (latter part), 530-11(2), and 527-5 of the Commercial Act, a divided company and a succeeding company shall, in principle, be jointly and severally liable for the obligations of the company before the division and merger. However, under certain conditions, an succeeding company may be jointly and severally liable for the obligations of the divided company among the obligations of the divided company. In such a case, the divided company shall bear only the obligations of the divided company, which are not borne by the succeeding company, and the relationship between the divided company and the divided company shall be changed into the divided obligation relationship. Thus, an agreement that the succeeding company does not wholly succeed to the obligations of the company before the division and merger is in violation of Article 530-9 of the Commercial Act. Thus, it is reasonable to view that the agreement that the succeeding company shall not entirely succeed to the obligations of the divided company prior to the division and merger is in violation of Article 527-5 of the Commercial Act, and it shall be deemed that there is no effect in relation to the creditors (see Supreme Court Decision 20006Da2639, supra.

As to this case, the non-party company and the defendant decided to succeed only to the obligations related to the information and communications construction sector among the obligations of the non-party company in this case. It is reasonable to view that the loan subjects of the first and second loans of this case are loans related to the non-party company's specific business, not the loans related to the non-party company's specific business, but the loans related to the whole business. In light of the fact that the defendant's succession to the obligations related to the whole business of the non-party company does not coincide with the purport that the non-party company should succeed only to the obligations related to the information and communications construction sector of the non-party company, if it is interpreted that the non-party company succeeded to the obligations related to the non-party company's whole business, the non-party company's second loans of this case is not wholly responsible for the non-party company's internal relations between the non-party company and the defendant, and therefore, it is reasonable to view that the defendant has no part of liability. Thus, even if

Therefore, we cannot accept the plaintiff's above assertion.

5. The plaintiff's judgment on other grounds of claim

A. Whether subrogation can be made against the defendant under Articles 480 through 482 of the Civil Act by virtue of the repayment by the plaintiff of the second loan obligation of this case

1) The plaintiff's assertion

Even if the Plaintiff, not the first credit guarantee agreement of this case, subrogated to the Plaintiff pursuant to the second credit guarantee agreement of this case separate from this case, as long as the first loan debt of this case and the second loan debt of this case are substantially identical, the Defendant is liable for the quasi-joint and several liability with the non-party company as to the second loan debt of this case against the national bank pursuant to Article 530-9 (1) of the Commercial Act.

However, since the Plaintiff, on behalf of the non-party joint and several debtor with respect to the second loans of this case, has repaid the second loans of this case on behalf of the non-party company, which is the guarantor under the second credit guarantee agreement of this case, the Plaintiff may exercise the second loans of this case on behalf of the non-party company, within the extent of the balance of the subrogated payment under Articles 480 through 482 of the Civil Act.

Therefore, the defendant is obligated to pay the balance of the subrogated payment of this case and damages for delay thereof to the plaintiff.

2) Determination

On the other hand, subrogation is for the purpose of securing the realization of the right to indemnity against the debtor or other co-debtor. Thus, subrogation is not established unless there is a right to indemnity (see Supreme Court Decision 94Da38106, Dec. 9, 1994). As seen earlier, as regards the second loans of this case, the defendant's portion of liability is nonexistent in the internal relationship between the non-party company and the defendant, so long as the plaintiff cannot exercise his right to indemnity against the defendant based on the repayment of the second loans of this case, the plaintiff cannot exercise his right to indemnity against the defendant, as long as it is impossible for the plaintiff to exercise his right to indemnity against the defendant based on the repayment of the second loans of this case, according to the subrogation under Articles 480 through 482 of the Civil Act.

Therefore, we cannot accept the plaintiff's above assertion on different premise as above.

B. Whether the Plaintiff may claim restitution of unjust enrichment against the Defendant on the ground that the Plaintiff repaid the debt of the second loan in this case

1) The plaintiff's assertion

Even if the Plaintiff, not the first credit guarantee agreement of this case, subrogated to the Plaintiff pursuant to the second credit guarantee agreement of this case separate from this case, as long as the first loan debt of this case and the second loan debt of this case are substantially identical, the Defendant is liable for the quasi-joint and several liability with the non-party company as to the second loan debt of this case against the national bank pursuant to Article 530-9 (1) of the Commercial Act.

However, on behalf of the non-party joint and several liability joint and several liability with respect to the second loans of this case, the plaintiff, who became surety under the second credit guarantee agreement of this case on behalf of the non-party joint and several liability with respect to the second loans of this case, extinguished the defendant's joint and several liability with respect to the second loans of this case. Thus, the defendant is liable to pay the amount of subrogated payment of this case and damages for delay to the plaintiff.

2) Determination

However, as seen earlier, insofar as there is no part of the defendant's liability with respect to the debt of the second loan in this case between the non-party company and the defendant, the plaintiff is the guarantor of the non-party company, one of the quasi-joint and several debtor's debt of the second loan in this case, and the defendant's joint and several liability with respect to the debt of the second loan in this case was extinguished as a result, it cannot be deemed that the defendant obtained profits without any legal ground as to the amount equivalent to the amount of the subrogated payment in this case and thereby caused damage equivalent to the amount to the plaintiff (the Supreme Court Decision 95Da47176 delivered on February 9, 196 is deemed to exist on this premise). Thus, the plaintiff's above assertion based on a different premise cannot be accepted.

6. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.

Judges Park Jong-dae (Presiding Judge)