Plaintiff (Attorney Song-chul et al., Counsel for plaintiff-appellant)

Defendant (Attorney Kim Sang-sung et al., Counsel for the defendant-appellant)

June 1, 2007

Seoul Central District Court Decision 2005Gahap113152 Decided October 20, 2006

1. In accordance with the Plaintiff’s appellate court’s expansion of the purport of the claim, the part against the Defendant of the judgment of the first instance is modified as follows.

A. The defendant shall pay to the plaintiff 131,104,238 won with 5% interest per annum from September 1, 2006 to August 24, 2007 and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff, and 20% is borne by the Defendant.

3. The portion of payment of the amount under paragraph (1) may be provisionally executed.

Of the judgment of the court of first instance, the part against the plaintiff in the judgment against the defendant shall be revoked, and the defendant shall pay to the plaintiff 693,389,954 won and 73,384,641 won among them, 142,857,142 won from October 22, 2005, 334,291,029 won from July 1, 2006, 334,291,029 with 5% interest per annum from October 20, 206 until October 20, 206, and 20% interest per annum from the next day to the date of full payment (the plaintiff extended its claim in the appellate court).

1. Basic facts

(a) Conclusion of factoring transaction agreements and joint and several sureties;

(1) On January 15, 1997, the non-party 2 Co., Ltd. (the non-party 2 Co., Ltd. was declared bankrupt on June 9, 199; hereinafter referred to as the "non-party 2 Co., Ltd.") entered into an factoring agreement with the non-party 3 Co., Ltd. to pay interest, discount fees, fees, etc. from January 15, 1997 to April 15, 197 to the non-party 3 Co., Ltd., with fixing the trading period of KRW 6 billion, and one year, with fixing the trading period of the non-party 2 Co., Ltd. to pay for the transfer, acquisition, management, and collection of the sales claims of the non-party 3 Co., Ltd., and the business incidental thereto. In return, the non-party 2 Co., Ltd. entered into an factoring agreement with the non-party 3 Co., Ltd. (hereinafter referred to as "the factoring loan of this case").

(2) At the time of the factoring transaction agreement, the principal debtor was Nonparty 3, and the joint guarantor was 12 persons, including the Plaintiff and the Defendant, Nonparty 1 (Non-Party 1 in the judgment of the Supreme Court), 4 (Co-Defendant 1 in the judgment of the court of first instance), 5 (Co-Defendant 2 in the judgment of the court of first instance), 6 (Co-Defendant 3 in the judgment of the court of first instance), 7 (Co-Defendant 4 in the judgment of the court of first instance), 8 (Representative Co-Defendant 4 in the judgment of the court of first instance), 9 (Representative Non-Party 4 in the judgment of the court of first instance), 10 Co., Ltd. (Defendant Non-party 5 in the representative), 1

(3) On March 11, 1997, Nonparty 2, 3, and 9 Co., Ltd., with the consent of all joint and several sureties including the Plaintiff and the Defendant, changed the debtor from Nonparty 3 to Nonparty 9 Co., Ltd., and entered into a contract with the assumption of obligation with the content that the Defendant, the Defendant, Nonparty 1, 4, 5, 6, 6, 7, 8, 10, 11, 12 Co., Ltd., a new joint and several surety, and the debt owed to Nonparty 9 Co., Ltd. to Nonparty 2, a new joint and several surety.

(b) Approval of composition or declaration of bankruptcy for some joint and several sureties;

(1) The non-party 8 corporation obtained on February 19, 199 the approval decision of composition (Seoul District Court 98Da211) and confirmed the above decision around that time.

(2) On November 4, 199, the non-party 12 corporation was declared bankrupt on February 11, 2004, and the non-party 10 corporation was declared bankrupt on October 28, 2002, and the non-party 11 corporation was declared bankrupt on March 10, 203. The non-party 9 corporation as the principal debtor was dissolved pursuant to Article 520-2(1) of the Commercial Act on December 3, 2002 and the registration of the completion of liquidation was completed on December 6, 2005.

(c) Partial repayment of factoring loans;

(1) From January 18, 1997 to May 21, 2003, Nonparty 2 was paid 4,102,587,008 won (principal 2,537,741,396 won, interest 1,564,845,612 won) out of the principal and interest of the factoring loans of this case from the debtor several times.

(2) Nonparty 2 filed a lawsuit (Seoul Central District Court 2002Gahap25186, Jul. 23, 2003) against Nonparty 9 Co., Ltd., a new principal debtor under the factoring agreement of this case, and the above joint and several sureties including the Plaintiff and the Defendant (other than Nonparty 11 Co., Ltd.) seeking the payment of accrued principal and interest from among the factoring loans of this case (Seoul Central District Court 2002Gahap25186). On November 19, 204, the above judgment of the court of first instance became final and conclusive on March 25, 2005 (Seoul High Court 2003Na60343, Nov. 19, 2004).

- - Future -

0 The plaintiff, defendant, non-party 1, 4, 5, 6, 7, and 9 shall jointly and severally pay to the non-party 2 corporation 3,462,258,604 won and 2,758,344,350 won from November 11, 1997; 375,962,00 won from February 5, 1998; 327,952,254 won from May 22, 2003 to the day of full payment.

The lawsuit against the non-party 8 and the 12 corporation is dismissed (the lawsuit against the non-party 8 and the non-party 12 corporation was dismissed on the ground that the period of maturity under the composition conditions has yet to elapse).

7,669,816,471 won for general bankruptcy claims against non-party 10 corporation of non-party 2, and junior bankruptcy claims of non-party 3,673,450,515 won for junior bankruptcy claims of non-party 3,673,450,515 won until May 21, 2003, for 3,462,258,604 won from October 28, 2002 to May 21, 2003, it shall be confirmed that the amount is 24% per annum from May 22, 2003 to full payment.

D. The plaintiff's partial repayment of judgment amount

(1) On October 13, 2005, the Plaintiff received a claim for the prohibition of judgment from Nonparty 2 Co., Ltd. after the said judgment became final and conclusive, the Plaintiff agreed to pay the remainder of the debt by October 31, 2006, within the scope of the said judgment, within the scope of the said judgment ① KRW 513,692,490, ② 1,000,000,000 until March 31, 2006; ③ 1,000,000,000, and ④ 4,000,000, and by August 31, 2006.

(2) In accordance with the above agreement, the Plaintiff repaid KRW 4,853,729,688 on October 21, 2005 to Nonparty 2, KRW 513,692,490 on October 21, 2005, ② KRW 1,000,000 on March 31, 2006, ③ KRW 1,000,000 on June 30, 2006, ④ KRW 2,340,037,198 on August 31, 2006, and KRW 4,853,729,68 on the aggregate of KRW 3,88 (hereinafter “additional repayment”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 11, Eul evidence 1, Eul evidence 1 (including a tentative number)

2. The assertion and judgment

A. From October 21, 2005 to August 31, 2006, the Plaintiff paid 4,853,729,688 won at one’s own expense to Nonparty 2, a sum of four times from August 21, 2005 to August 31, 2006, thereby jointly discharging the Defendant and other joint and several sureties. As such, the Defendant asserts that the Defendant is liable to pay the same amount as the written claim in response to the Plaintiff’s exercise of the right of reimbursement. Accordingly, the Defendant asserted that on May 21, 2003, the Defendant cannot comply with the Plaintiff’s exercise of the right of reimbursement because it has contributed to Nonparty 2, a portion of 656,00,000 of the joint and several surety debt under the factoring agreement.

B. The occurrence and apportionment of the defendant's liability for reimbursement

(1) In the case where there are several joint and several sureties, each obligee has to pay the full amount of the obligation without having separate profits, but there are certain portions of the obligation among the joint and several sureties, and unless there is any special agreement as to the ratio of the share of the obligation, it shall be considered that there is an equal proportion among the joint and several sureties. Therefore, when one of the joint and several sureties has repaid more than the share of the obligation, the other surety may claim reimbursement against the other surety, but it shall not be allowed to claim reimbursement against the person who has already discharged the part of his own obligation among the other guarantors (see Article 425 of the Civil Act, Article 93Da4656, May 27, 1993)

(2) The defendant's duty of indemnity

As seen earlier, the Plaintiff paid 4,853,729,68 won at his own expense to Nonparty 2 Co., Ltd. and jointly released the Defendant and other co-sureties, and there is no evidence to prove that there is a special agreement on the internal share ratio among the joint and several guarantors under the factoring agreement of this case including the Plaintiff and the Defendant. Therefore, the portion of the Plaintiff’s own share out of the instant repayment amount is 441,248,153 won (i.e., KRW 4,853,729,688 won/joint and several suretys, KRW 11), and the Plaintiff may claim reimbursement amount of KRW 4,412,481,535 won (= KRW 4,853,729, KRW 688, KRW 41,248,153 won).

Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the share of the Plaintiff’s reimbursement (as the share of the Plaintiff is equally borne, the share of the Plaintiff’s reimbursement is equal) KRW 441,248,153 (i.e., KRW 4,412,481,535) (i.e., KRW 10, less than KRW 10, and less than KRW 1

(3) Shares in the apportionment of the insolvent; and

(A) Of the joint and several suretys under the factoring agreement of this case, Nonparty 10, 11, and 12, who were declared bankrupt, constitute a person with no financial capacity to repay.

(B) Furthermore, we examine whether the non-party 8 corporation, for which the decision of approval of composition became final and conclusive, is included in the redemption insolvency.

In full view of the purport of evidence No. 2-1, the part related to this case among the conditions for the authorization of composition against the non-party 8 corporation shall be exempted in full, and the principal shall be preferentially repaid from the non-party 9 corporation which is the principal debtor. However, where the cause for the payment of guaranteed liability occurs due to non-party 9 corporation's loss of ability to repay due to bankruptcy, liquidation, etc., the amount finalized before December 31, 2008 shall be repaid equally on December 31, 2009 through December 31, 2018, and the amount finalized after January 1, 209 to be repaid equally on December 31, 2018, respectively.

Therefore, it is reasonable to deem that the cause for the payment of the guaranteed obligation of the non-party 8 corporation occurred in accordance with the above conditions for the authorization of composition, and the plaintiff who paid the repayment of this case to the non-party 2 corporation also can be paid the reimbursement amount from the non-party 8 corporation through recourse or subrogation. However, the "non-party 8 corporation" under Article 427 (Article 448 (2) of the Civil Act refers to the case of insolvency at the time when the claim for reimbursement is at issue. Even according to the conditions for the authorization of composition above, the non-party 8 corporation bears its responsibility after 209 and the non-party 8 corporation, who is performing the payment with the decision of approval, has the ability to pay other claims than the composition credit. Thus, it is reasonable to deem that the plaintiff's claim is at the time of the conclusion of the pleading of this case, which is at the time of the issue of the plaintiff's claim for reimbursement.

(C) Therefore, barring any special circumstance, 72,141,801 won (=1,764,92,92,612 won per share of the debtor jointly and severally liable x 441,248,153 won x 4) that the non-party 8, 10, 11, 12, and 12, who is the insolvent debtor, out of the reimbursement liability with respect to the instant reimbursement amount (i.e., the share of the debtor jointly and severally liable x 441,248,153 x 4) are jointly and severally liable for the remainder of the joint and several obligors, and the defendant is liable for additional payment to the plaintiff in proportion to their respective share of the reimbursement amount. Thus, barring any special circumstance, the defendant is liable to additionally pay to the plaintiff the share of the debtor's reimbursement liability (i.e., 1,764, 92, 612 won

C. Scope of the defendant's repayment and reimbursement obligation

(1) Amount of indemnity against the plaintiff

In full view of the purport of the arguments in Eul evidence 2 and 4, it is recognized that the defendant paid KRW 656,00,000 out of the joint and several several several surety obligations under the factoring agreement in this case, which were pending on May 21, 2003, which were brought by the non-party 2 corporation, under the whole purport of the pleadings. Among them, the part of the defendant's apportionment is 59,636,363 (65,00,000/11), and the part of the plaintiff's reimbursement in this case is less than KRW 441,248,153, the defendant's apportionment is 50,884,516 (41,248,153 + 59,636,636,636) to the non-party 2 corporation, and the amount of the plaintiff's reimbursement in this case is 500,615,508,1505,156,15084,1500.

(2) Determination as to the share of an insolvent person

On the other hand, as seen earlier, Nonparty 8, 10, 11, and 12 among the joint and several suretys under the factoring agreement of this case were insolvent. In principle, as to the reimbursement obligation of the said insolvent, the Defendant has to share in proportion to his portion of the reimbursement obligation of the said insolvent. However, in a case where the Defendant has repaid the said insolvent in excess of his share of the reimbursement obligation of the said insolvent, the Defendant cannot claim reimbursement against the said insolvent. Therefore, in light of the purport of the mutual reimbursement system between the joint and several suretys and the litigation economy, it is reasonable to deem that the Plaintiff cannot claim for the payment of the reimbursement obligation of the said insolvent against the Defendant. However, as seen earlier, the Defendant’s share of the reimbursement obligation of the said insolvent against the Plaintiff is 252,141,801, and 235,542,542,59,5369,3636,45, 375, 375, 47, and 254 of the reimbursement obligation of the said insolvent.

(3) Sub-decisions

Ultimately, the Defendant’s share of the reimbursement obligation of the insolvent person is KRW 286,219,72 ( KRW 34,077,921 + KRW 252,141,80). Since the Defendant’s repayment amount is KRW 155,115,484 ( KRW 656,00,000 - KRW 50,884,516), the difference is 131,104,238 ( KRW 286,219,72 - KRW 15,115,484). Accordingly, the Defendant is obligated to pay the Plaintiff the difference as the share of the reimbursement obligation of the insolvent person.

D. Determination on other arguments by the parties

(1) The plaintiff's assertion

(A) The plaintiff asserts that since the non-party 2 corporation paid 656,00,000 won on May 21, 2003 to the non-party 2 corporation was not paid by the defendant to the defendant, the non-party 12 corporation who served as representative director was discharged by the defendant, the defendant's letter of payment cannot be accepted.

However, comprehensively taking account of the overall purport of the arguments in the statements Nos. 2 and 4 of Emama Nos. 2 and 4, the Defendant may recognize the fact that the Defendant repaid KRW 656,00,000 to Non-Party 2 Co., Ltd. on May 21, 2003, and the statement of Evidence Nos. 8 and 13 alone is insufficient to reverse it and there is no other counter-proof. The Plaintiff’s above assertion

(B) If it is acknowledged that the Defendant personally paid KRW 656,00,000 to the Defendant, the Plaintiff’s portion of the Plaintiff’s reimbursement is 59,636,363 won (65,000,000 ± 11). The Plaintiff asserts that the portion of the Plaintiff’s reimbursement is 38,545,452 won (59,636,363 x 463), which is 34,07,922 won (238,545,452 ± 7) which is 93,714,285 won (5,636,363 + 364,47,9757,997,597, which is the Defendant’s reimbursement obligation for the Defendant, and accordingly, the Defendant’s reimbursement obligation is 96,5965 won (259,597,9750,9750,9750,597,500 won) which is the Plaintiff’s reimbursement obligation for the Defendant.

In the event that one of the joint and several sureties has repaid in excess of his share of expenses and the other one exercises the right to indemnity by paying in excess of his share of expenses, in light of the purpose of the mutual indemnity between the joint and several sureties and the litigation economy such as the prevention of circular lawsuits, it shall be deemed that the right to indemnity can be set up against the person who has exercised the right to indemnity in full in excess of his share of expenses.

(C) The Plaintiff asserts that the claim for reimbursement of this case was filed against the non-party 2 corporation, including the plaintiff and the defendant, and that the Seoul Central District Court Decision 2002Gahap25186 (Seoul High Court 2003Na60343) (Seoul High Court 2003Na60343) exercised the right to reimbursement after the plaintiff discharged the claim. The 656,000,000, which the Defendant asserted that the payment was made before the closing of argument in the case, was already settled and reflected in the above judgment amount, and thus, it

However, the right to indemnity is exercised against the part of the other joint and several liability when one of the joint and several liability is repaid or otherwise jointly discharged at one’s own expense. Therefore, in the case where the joint and several liability is repaid in connection with the factoring loan in this case, the joint and several liability may be claimed regardless of the time for repayment. In the middle of the act of repayment, there is no ground for different treatment of the act of repayment before and after the filing of the lawsuit by Nonparty 2, the creditor, and the judgment accordingly. The plaintiff’s assertion is without merit.

(2) Judgment on the defendant's assertion

(A) The defendant asserts that, around September 10, 1997, the joint and several guarantors under the factoring agreement of this case including the plaintiff and the defendant and the defendant concluded a special agreement to exempt the liability of each individual joint and several sureties including the defendants from the liability of the plaintiff, the non-party 8 corporation, the 10 corporation, the 111 corporation, and the 12 corporation, or to exempt the joint and several sureties or from the future indemnity, instead of paying in installments each of 1.2 billion won, with respect to the fact-finding loan 6 billion won against the non-party 2 corporation, including the plaintiff, the non-party 8 corporation, the non-party 10 corporation, the 11 corporation, and the 12 corporation, etc., and therefore, they cannot respond to the plaintiff's claim, and that the plaintiff consistently argued that there was no such agreement to exercise the right of reimbursement only

However, it is difficult to believe that the above installment plan was written out. According to the evidence Nos. 2-1, 8, and Eul evidence No. 1, 1997, the non-party 8, 10, 12-1, 12-2, and 6-2, the defendant's assertion that the non-party 6-1, 6-1, 6-2, and 6-2, the non-party 6-1, 6-2, and the non-party 1, 6-2, and 5-3, and the non-party 1, 6-1, 6-1, 391, 480, 537, and the non-party 6-1, the non-party 6-1, 5-2, and the non-party 3-1, 197, and the non-party 6-1, 197, and the non-party 5-1, 197, and 5-1, 19788.

(B) The defendant, even though the non-party 1 prepared a written confirmation (No. 3 in E) without indicating that he is the representative director of the plaintiff, this act was committed as the representative director of the plaintiff, and the counter-party 1 knew or could have known that the non-party 1's act was an act representing the plaintiff company, and the non-party 1's act was also effective against the plaintiff company pursuant to Article 48 of the Commercial Act, even if the non-party 1's act constitutes a commercial agent, and did not indicate that it is for the plaintiff company, and thus, the plaintiff exempted the defendant from the defendant'

Comprehensively taking account of the aforementioned evidence, it is acknowledged that the non-party 1 prepared a confirmation document stating that the lawsuit claiming the unpaid factoring loan of the non-party 2 was in progress at the appellate court on March 26, 2004, and that the non-party 1 was registered as the representative director of the plaintiff at the time of the corporate register. However, the above confirmation document was prepared in the name of the non-party 1, and the non-party 3 was jointly and severally guaranteed by the non-party 1 and the defendant in the fact that the non-party 1 and the defendant jointly and severally guaranteed the obligation under the factoring contract against the non-party 2 in the non-party 3's personal status (which is separate and jointly guaranteed by the non-party 1's representative director), and it is difficult to conclude that the above act of preparing the confirmation document constitutes a commercial activity. In addition, there is no evidence to support that the defendant knew or could have known that the non-party 1's preparation of confirmation document was for the plaintiff.

(C) The defendant asserts to the effect that, even if the non-party 9 corporation became the principal debtor, it continues to hold the status of joint and several sureties under the initial contract, the non-party 9 corporation should also be included in the indemnity debtor.

However, as seen earlier, at the time of the assumption of obligation agreement, the non-party 9 corporation, as the issuer, ordered the promissory notes issued by the non-party 3 corporation as the payee to the non-party 2 corporation. However, upon the consent of all of the non-party 2 corporation and the joint and several sureties, the non-party 9 corporation succeeded to the status of the factoring applicant, namely, the status of the main debtor, under the consent of all of the non-party 2 corporation and the non-party 3 corporation. In succession to the status of the debtor as above, the non-party 3 corporation was merely taken over the total amount of the debt to the non-party 2 corporation according to the initial contract. Unlike the other joint and several sureties under the initial contract, the new joint and several sureties did not enter into a joint and several sureties agreement, and did not withhold the obligation to continue to be borne by the non-party 9 corporation. On the other hand, inasmuch as the first 11 joint and several sureties except the non-party 9 corporation and the new joint and several sureties were jointly and severally guaranteed.

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay at the rate of 131,104,238 won in total and 20% per annum under the Civil Act from September 1, 2006 to August 24, 2007, which is the day following the date of the fourth additional repayment (the plaintiff's claim against the defendant after the date of the fourth additional repayment exceeds the defendant's repayment amount and the defendant's claim for reimbursement is created by adding the defendant's repayment amount), as the plaintiff's claim is sought by the plaintiff. Thus, the plaintiff's claim of this case is justified within the above recognition scope, and the remainder is dismissed as it is so decided as per Disposition by changing the part of the judgment of the first instance as to the defendant from September 1, 206 to August 24, 2007, which is the date of the decision of this Court.

Judges Kim Byung-chul (Presiding Judge)