The Korea Technology Finance Corporation (former Name: the Korea Technology Finance Corporation) (Attorney Lee Chang-chul, Counsel for defendant-appellee)

Defendant (Law Firm Sung, Attorneys Jeon Soo-hee et al., Counsel for defendant-appellant)

November 29, 2018

Daejeon District Court Decision 2017Da220352 Decided May 16, 2018

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revocation

The defendant jointly and severally with the non-party 1 and the non-party 2 shall pay the plaintiff 44,570,43 won and 368,847,389 won with 18% interest per annum from December 30, 200 to the day of complete payment.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 5% is borne by the Plaintiff, and the remainder 95% is borne by the Defendant, respectively.

4. In the disposition of the first instance court, “the Defendant shall be corrected jointly and severally with Nonparty 1 and Nonparty 2 to KRW 444,570,433” in paragraph (1) of the judgment of the first instance to “the Defendant shall be jointly and severally with Nonparty 1 and Nonparty 2 to KRW 444,570,433 to the Plaintiff.”

1. Purport of claim

The defendant jointly and severally with the non-party 1 and the non-party 2 shall pay the plaintiff 44,570,43 won and 368,847,389 won with 18% interest per annum from December 30, 200 to October 18, 2002 and 25% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Conclusion of a credit guarantee contract between the plaintiff and the non-party 1 of the principal debtor, and joint and several sureties

1) On November 8, 199, the Plaintiff (hereinafter referred to as the “Plaintiff Fund”) entered into a credit guarantee agreement with Nonparty 1 on the credit guarantee principal of KRW 425,00,000, and the credit guarantee period from November 8, 199 to November 8, 200. Nonparty 1 guaranteed the performance of the principal and interest obligation of KRW 500,000,000, borrowed from a national bank on November 8, 1999 with the same seal (see, e.g., evidence 1).

2) According to a credit guarantee agreement included in the credit guarantee agreement dated November 8, 1999, where the Plaintiff Fund fulfills the credit guarantee obligation to the National Bank, the above non-party 1 and its joint guarantor shall pay the Plaintiff Fund the amount of subrogation paid by the Plaintiff Fund for the performance of the obligation and the damages for delay calculated at the rate determined by the Plaintiff Fund from the payment date to the full payment date, and the damages for delay calculated at the rate of the Plaintiff Fund from the payment date to the full payment date.

3) Upon entering into a credit guarantee agreement dated November 8, 199, the Defendant and Nonparty 2 jointly and severally guaranteed all obligations owed by Nonparty 1 to the Plaintiff Fund in relation to the said credit guarantee agreement.

B. The Plaintiff’s principal debtor’s subrogation for the non-party 1’s obligation and compensation for indemnity

1) On September 15, 200, Nonparty 1 lost the benefit of time due to the suspension of current account transactions on November 8, 1999. The Plaintiff Fund, as the credit guarantee agent of Nonparty 1 on December 30, 200, paid 432,170,972 out of the principal and interest of the loan related to the credit guarantee contract of Nonparty 1 on November 8, 1999 (=the guaranteed principal amount of KRW 425,00,000 + interest of KRW 7,170,972) on behalf of the National Bank on December 30, 200.

2) The Plaintiff Fund disbursed the legal procedural costs of KRW 748,589 in relation to the credit guarantee agreement dated November 8, 1999 with respect to the above non-party 1’s credit guarantee agreement. The interest rate for delay determined by the Plaintiff Fund is 18% per annum from December 30, 2000.

C. Filing a previous lawsuit and securing final and conclusive judgment against the Defendant, etc., a joint and several surety of the Plaintiff Fund

The Plaintiff Fund filed a lawsuit against the Defendant, the principal debtor, and the above non-party 1, who is a joint and several surety on September 22, 2001, including the amount of indemnity on August 16, 2002 (see, e.g., Cheongju District Court Decision 2001Da3037, Oct. 18, 2002); and on October 18, 2002, “the Defendant is jointly and severally and severally with the non-party 1, the principal debtor, and the non-party 2, a joint and several surety, and jointly with the Plaintiff Fund 432,919,561 (i.e., the sum of the amount of indemnity and legal procedural expenses related to the credit guarantee contract as of November 8, 199 (see, e.g., Supreme Court Decision 432,170,972 + legal procedural expenses 432,170,979) and damages for delay calculated on August 28, 2001.

D. Details of the Plaintiff’s non-refilled claim

1) The principal amount of the claim for reimbursement against the Plaintiff Fund is KRW 432,170,972 as the principal amount of the claim for reimbursement against the Plaintiff Fund until May 2, 2007, and the principal amount remains in KRW 368,847,389 due to partial repayment by the Defendant, the above Nonparty 2, and the above Nonparty 1 until May 2, 2007 (see evidence 4-

2) Of damages for delay calculated at the rate of 18% or 25% per annum on the principal of the above indemnity claim, the amount not paid until May 2, 2007 reaches KRW 75,533,194 in total (see evidence 5-3).

3) The legal procedural costs incurred by the Plaintiff Fund against the Defendant for the recovery of the above indemnity claim amount reaches KRW 189,850 by April 19, 2010 (see Evidence A No. 6 and the fifth page of the application for payment order).

【The whole purport of each entry and pleading of evidence Nos. 1, 4, 5, and 6 (if there are more than one number, the number shall be included; hereinafter the same shall apply) in the ground for recognition

2. Judgment on the interest in the lawsuit

This part of the judgment of the court of first instance is identical to the statement in the “interest of 1-B” claim No. 2 and 3 of the judgment of the court of first instance. Thus, this part of the judgment is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act. The lawsuit of this case brought when the statute of limitations for joint and several surety claim against the Defendant of the Plaintiff Fund is imminent (see Supreme Court en banc Decision 2018Da22008, Jul. 19, 2018).

3. Determination on the cause of the claim

According to the above basic facts, the defendant, a joint and several surety, is jointly and severally and severally liable with the above non-party 1 and the above non-party 2, a joint and several surety, to the plaintiff's Fund which is the creditor on November 8, 1999, plus 44,570,433 won (=368,847,389 won + 75,389 won + 189,194 won + 360% of the total amount of the principal amount of the indemnity obligation as above, and damages for delay 75,53,194, and legal procedure costs 189,850 won (see Supreme Court Decision 205Da1660, Dec. 30, 200). Thus, it is difficult to accept the remaining amount of the principal amount of the indemnity obligation as 368,847,389 won and damages for delay calculated at the rate of 15% of the previous final and conclusive judgment (see Supreme Court Decision 2015%).5% of the plaintiff's damages for delay

4. Judgment on the defendant's assertion

A. As to this part of the judgment of the court of first instance, this court’s reasoning is identical to that of “the judgment of the defendant’s assertion 2.” under the main sentence of Article 420 of the Civil Procedure Act. Therefore, this court’s reasoning is acceptable.

B. In addition, considering the following points, it is reasonable to view that the extinctive prescription of the above judgment claim against the defendant against the non-party 1 should run anew from Apr. 13, 2007 (see Supreme Court Decision 2008Da89880, Mar. 26, 2009) again, the extinctive prescription of the claim against the non-party 1 should be interrupted by demanding a distribution from the plaintiff's Fund prior to Apr. 13, 2007. The extinctive prescription of the claim for indemnity against the non-party 1 was suspended by reason of the claim for the above judgment against the defendant who is a joint guarantor, and the interruption of prescription was suspended by reason of the fact that the distribution table (Evidence A No. 2) distributed the successful bid price to the plaintiff's funds became final and conclusive (see Supreme Court Decision 2008Da8980, Mar. 26, 2009). Where the non-party 1 and the defendant who is a joint and several surety are subject to interruption of prescription against the defendant 1 cannot be accepted separately against the defendant 1.

① Article 165(1) of the Civil Act provides that “The period of extinctive prescription of a claim established by a judgment shall be ten years, even if the claim falls under the short-term extinctive prescription.” This is, once a final judgment became final and conclusive, there is no risk that evidence for repayment would become unclear, so it is unnecessary to take short-term extinctive prescription. In addition, even in such a case, there is no inconvenience that a short-term extinctive prescription would take more than once if it takes place, and thus, the provision to legislatively resolve it.

(2) There are no concerns over the uncertainty of evidence of discharge of the surety obligation with respect to the surety obligation by a final and conclusive judgment, and there is no need to maintain the purport of the commercial prescription system, such as prompt resolution of commercial transactions, once a final and conclusive judgment becomes final and conclusive with respect to commercial claims.

[In relation to this, as seen earlier, the Defendant asserts that the Plaintiff Fund’s claim for reimbursement under the credit guarantee contract dated November 8, 199 is a commercial claim. In this regard, the credit guarantee contract dated November 8, 1999 was derived from the national bank’s loan claims on the same day, and the above loan claims can be regarded as commercial claims, and there is room to regard the Plaintiff Fund’s claim for reimbursement as five years with a claim for commercial activities under Article 64 of the Commercial Act. However, as in the case of the Korea Credit Guarantee Fund, it is difficult to regard the Plaintiff Fund as a merchant (see Supreme Court Decision 88Meu16812, Jun. 27, 1989). If it appears that the primary debtor participated in the operation of “○○○○,” it is difficult to conclude that the Defendant’s claim for reimbursement was not directly affected by the extinctive prescription agreement and its credit guarantee agreement, even if it appears that the Defendant did not explicitly affect the Defendant’s individual’s claim for payment.

③ A guaranteed liability is a system that guarantees the discharge of the principal obligation. Article 440 of the Civil Act provides that the interruption of prescription against the principal obligor shall be effective against the surety. This is a policy provision that seeks to secure the security of the obligation by ensuring that the guaranteed obligation shall not be extinguished before the extinctive prescription expires. Thus, if the guaranteed obligation obtains the effect of interrupting prescription against the principal obligation and is not affected by any subsequent act for continuing or confirming the effect after the interruption of prescription, the guaranteed obligation becomes extinguished before the extinctive prescription expires, and ultimately, the purport of Article 440 of the Civil Act is practically contradictory to the purport of Article 440 of the Civil Act.

(4) The primary obligation and the guaranteed obligation are the same form or form as the obligee’s ordinary intent. The primary obligor and the surety are expected to have the result of maintaining the same form. It can be deemed that they conform to the intent of the parties.

5. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair, the part against the defendant ordering payment exceeding the above recognition scope shall be revoked, the defendant's remaining appeal shall be dismissed, and it is clear that there is error in part of the judgment of the court of first instance, and it shall be corrected as per Disposition.

Judges Kim Yong-deok (Presiding Judge)