Where the principal obligor has notified the principal obligor of the discharge of the principal obligation by repayment or other withdrawal without negligence after the principal obligor has become due and the principal obligor has become due, whether the principal obligor may set up against the principal obligor who exercises the right to indemnity after being notified of the extension of the due date between the obligee and the obligee (negative)

Articles 441(1) and 442(1)4 and (2) of the Civil Act

Plaintiff (Law Firm Tae, Attorneys Noh Jin-jin et al., Counsel for the plaintiff-appellant)

Suwon Electronic Co., Ltd. (Attorney Jeong-jin et al., Counsel for defendant-appellee)

Seoul High Court Decision 2005Na35099 decided March 3, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

A trustee may exercise a prior right to indemnity against a principal obligor pursuant to Article 442(1)4 of the Civil Act after the original due date has arrived at any time between the extension of the principal obligation and the extension of the due date, barring special circumstances. In this case, the guarantor cannot oppose against the principal obligor after the guarantee contract is concluded pursuant to Article 442(2) of the Civil Act, and if the trustee has notified the principal obligor of the principal obligation after the repayment or other discharge without negligence, the principal obligor cannot oppose the trustee who exercises a subsequent right to indemnity, as an agreement on extension of the due date between the obligee and the obligee after receipt of the above notification, under Article 445(1) of the Civil Act.

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and determined that the creditor financial institutions of this case including the creditor Seoul Guarantee Insurance Co., Ltd. and the defendant, the principal debtor, on December 21, 2004, on December 31, 2004 to December 31, 2005, which were the day before the plaintiff's discharge from liability, decided to defer the principal debt on December 31, 2006 again on December 20, 2005 to December 31, 2006, but at least on December 20, 205, the resolution of deferment of payment on December 20, 2005 was passed under the condition that the defendant received the notice of discharge valid on December 27, 2004 from the plaintiff, the joint guarantor, and thus, the defendant cannot set up against the plaintiff, the joint guarantor, for the delay of the period set forth in the resolution.

In light of the above legal principles and the records, since the plaintiff did not withdraw the exercise of the right of advance reimbursement as the cause of the claim in this case after the plaintiff asserted the exercise of the right of advance reimbursement, on the premise of such exercise of the plaintiff's right of advance reimbursement, the defendant shall be deemed not to have set up against the plaintiff, a joint guarantor, as determined by the court below, as a resolution of deferment of payment period for the defendant, who is the principal debtor of the Seoul Guarantee Insurance Co., Ltd., the creditor, and even if the plaintiff asserts the exercise of

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)