existence of liability for the obligations of the guarantor incurred after the guarantee period of the guarantor in continuous guarantee whose guarantee period has been fixed;

In the event of continuous guarantee, unless there are special circumstances, a guarantee liability is imposed only on the principal obligation incurred within the guarantee period. Thus, the guarantor who guaranteed the non-party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party Party

Article 428 of the Civil Act

Attorney Lee Jae-chul, Counsel for the defendant-appellant

Defendant 1 and four defendants et al., Counsel for the defendant-appellant

Seoul High Court Decision 87Na672 delivered on January 18, 1988

The part of the judgment below against the Defendants shall be reversed, and that part of the case shall be remanded to Seoul High Court.

The plaintiff's appeal is dismissed, and the costs of appeal on this appeal are assessed against the plaintiff.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

The court below held on April 13, 1976 that, based on its macroficial evidence, the Defendants, as the Defendants, agreed to stand a joint and several surety within the limit of KRW 50,000,00 of the original amount for the present or future obligation to be borne by Nonparty 2, Nonparty 3, and Nonparty 4, etc. (hereinafter the “Nonindicted Company”) with a continuous loan until April 30, 1979 with Nonparty 2, Nonparty 3, and Nonparty 4, etc., and the Defendant agreed to stand a guarantee liability only for the principal obligation incurred within the guarantee period, barring special circumstances, if the guarantee period is set for continuous guarantee.

However, the lawsuit payment guarantee refers to the non-party bank opening a local letter of credit for the purchase of raw materials at the request of the non-party company and paying the amount of the credit to the collector. Thus, the non-party bank is acknowledged as having received the above amount of credit from the non-party company to execute the loan by export support financing and paid the above amount of the credit to the non-party company. In such a case, the non-party company cannot be deemed to have suffered specific obligations such as the loan obligations against the non-party bank that requested the non-party bank to establish the credit, and the non-party bank shall be deemed to have incurred specific obligations against the non-party bank as non-party bank when it paid the amount of credit to the non-party company by proxy.

Therefore, the deceased, who guaranteed the debt to the non-party bank of the non-party company by setting the guarantee period, is liable for the guarantee only when the loan under the above export support loan was executed within the guarantee period and the credit amount was paid by subrogation, and the debt incurred by the loan to the non-party company after the guarantee period expires, shall not be deemed liable for the guarantee.

In the above purport, the decision of the court below denying the guarantee liability on the ground that the loan obligation under the loan guarantee was incurred after the guarantee period of the deceased is just and there is no error of law like the theory of lawsuit.

2. We examine the Defendants’ attorney’s grounds of appeal.

(1) Ground of appeal No. 1

According to the reasoning of the judgment of the court below, the above deceased is justified in the measures that recognized that the non-party company agreed to provide a joint and several surety within the limit of KRW 50,000,000 for the present or future debt to be borne by the non-party company with a continuous loan from the above bank on April 13, 1976, or for the non-party bank until April 30, 1979, and even after examining the evidence cooking process conducted in such fact-finding, it cannot be said that there was an error of law by misconceptioning the facts against the rules of evidence as evidence in violation

(2) Ground of appeal No. 2

Joint guarantee refers to that several persons are guaranteed by one separate contract or separate contract for the same principal obligation. Upon examining the evidence established by the court below in this case, it is reasonable to determine that the plaintiff and the deceased were in a joint guarantee relationship between the non-party bank from February 13, 1979 to April 30 of that year, and that the plaintiff and the above deceased were in a joint guarantee relationship between the non-party bank, and that the effect of joint immunity has occurred as a result of the plaintiff's subrogation in this case, and that the plaintiff's guarantee and the above deceased's guarantee differ respectively from the principal obligation, such as the theory of lawsuit, and therefore, the judgment of the court below is without merit.

(3) Ground of appeal No. 3

According to the reasoning of the judgment of the court below, the court below rejected the defendants' assertion that the defendants' share of the defendants who can subrogate the non-party bank within the scope of the right to indemnity should be reduced to 1/8 as to the principal debt of this case against the non-party bank jointly and severally guaranteed by the above deceased, the non-party 6, the non-party 5, and the non-party 7 together with the non-party 2, the non-party 3, and the non-party 4, because the non-party 5, the non-party 6 were also jointly and severally guaranteed by the non-party 6, the non-party 6, and the non-party 7, and the non-party 14 through 16, and the non-party 13 should be reduced to the non-party joint and several sureties 1979.4.16.

However, according to the evidence Nos. 14 and 16 (Joint Guarantee Certificate) as employed by the court below, it is acknowledged that on April 17, 1979, the non-party 6, the non-party 5, and the non-party 7 entered into a guarantee contract with the non-party company, the primary debtor of which is the non-party bank, within the limit of 250,000,000 won, for all obligations currently and in the future, to be borne by the non-party bank. Accordingly, the above non-party's guarantee is a collateral guarantee that determines the guarantee limit amount. Thus, even if the non-party borrowed the above company 250,00,000 won to the above company on the date of concluding the guarantee contract, the above non-party's guarantee obligation is limited to only the above loan No. 250,000,000 won, and it cannot be viewed that the guarantee obligation and the secured obligation are different from the above deceased's guarantee obligation.

As a result, the judgment of the court below committed the violation of the rules of evidence and thereby affected the conclusion of the judgment, which constitutes the ground for reversal under Article 12 (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

3. Therefore, the part of the judgment below against the defendants is reversed and remanded, and the costs of appeal against the plaintiff are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)