[1] The method of notifying the decision on commencing auction to have an effect of interrupting prescription against the principal debtor

[2] Where a voluntary auction procedure is completed by a financial institution to which the former Act on Special Measures for Delayed Loans applies, whether the decision on commencing auction or the notice on auction date may be presumed to have been delivered to the principal debtor (negative)

[1] In order to recognize the validity of interruption of prescription by deeming that a seizure of the auction procedure has been notified to the principal debtor who is an interested party pursuant to Article 176 of the Civil Code, it shall be delivered to the principal debtor by means of delivery of the decision on commencing auction or the notice on the date of auction so that the principal debtor can be informed

[2] In the procedure of voluntary auction conducted by a financial institution to which the former Act on Special Measures for the Delayed Loans of Financial Institutions (repealed by Act No. 5693, Jan. 299) applies, a notice of decision on commencement of auction or of auction date shall be deemed to have been delivered to the address indicated in the registry at the time of application for auction pursuant to Article 3 of the same Act, and if the address of the pertinent real estate is not indicated in the registry at the time of application for auction or the address is not reported to the court, it may be delivered by public notice. Thus, just because the above voluntary auction procedure is completed, it cannot be presumed that the notice of decision on commencement of auction or auction date has been served to the principal debtor by means of delivery other

[1] Article 176 of the Civil Code, Article 165 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), Article 178 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Article 3 of the former Act on Special Measures for Delayed Loans of Financial Institutions ( repealed by Act No. 5693 of Jan. 29, 199), Article 165 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), Article 178 of the former Civil Procedure

[1] [2] Supreme Court Decision 89Da4946 delivered on January 12, 1990 (Gong1990, 462) Supreme Court Decision 94Da26097 delivered on November 25, 1994 (Gong1995Sang, 91) / [1] Supreme Court Decision 93Da21477 delivered on January 11, 1994 (Gong194Sang, 683)

Korea Deposit Insurance Corporation (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Nowyang et al. (Attorneys O Young-young et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2003Gahap244 Delivered on July 14, 2004

November 17, 2004

1. Revocation of the judgment of the first instance, and all of the plaintiff's claims are dismissed.

2. The total costs of the lawsuit shall be borne by the plaintiff.

1. The plaintiff's claim

Plaintiff

(a) The 43,408,050 won and the above 16,639,485 won with 20% interest per annum from March 17, 1999 to the date of full payment;

B. Defendant Kim Jong-mun, Kim Jong-sung, Kim Jong-soo, Kim Jong-jin, Kim Jong-jin, Kim Jong-soo, Kim Jong-soo, Kim Sang-hoon, and 11,092,90 won out of the above amounts and 20% interest per annum from March 17, 1999 to the day of full payment.

2. Purport of defendant's appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap evidence 1 through 7, Gap evidence 10, Gap evidence 11, 14-1, and 14-2 by integrating the whole purport of the pleadings:

A. On June 24, 1993, the non-party Lee Jong-soo borrowed KRW 200 million from the Chungcheong Mutual Savings and Finance Company (hereinafter referred to as the "Woo-dong Mutual Savings and Finance Company"). On the same day, on June 25, 1993, the Dong Kimnam-Myeon (hereinafter referred to as the "Simnam-Myeon") jointly and severally guaranteed the above loan obligations, and completed the registration of creation of a collateral security on the real estate listed in the separate sheet (hereinafter referred to as the "real estate in this case"), with the right to collateral security (hereinafter referred to as the "right to collateral security"), with the right to collateral security (hereinafter referred to as the "right to collateral security"), and the number of the co-defendants in the first instance trial (hereinafter referred to as the "right to collateral security") agreed on August 30, 1993 to acquire the above loan obligations of Lee Jong-dong with exemption and to change the period of loan to the debtor on August 31, 1993.

B. After that, the number of borrowed persons paid only the interest on the above loan over several occasions and paid the last payment of the interest and interest in arrears until December 20, 1994 on December 31, 1994, but did not pay the principal and the remainder interest in arrears.

C. Accordingly, the mutual savings and finance company in the Chungcheong day shall apply for voluntary auction (the requested amount: the principal amount: the interest at the rate of 20 million won from December 21, 1994 to the date of full payment) with the Daejeon District Court Decision 97 others (the interest at the rate of 20% per annum from December 21, 1994 to the date of full payment) on the real estate, and the registration was completed on March 10, 197 upon the decision to commence the sale of real estate on March 16, 1997. The mutual savings and finance company in the Chungcheong day was distributed KRW 96,654,171 to the dividend procedure implemented on March 16, 199, but still, the principal amount of the loan was paid at KRW 105,383,408 and KRW 169,534,246 from December 21, 194 to March 16, 199.

D. On December 14, 2001, the mutual savings and finance company in Chungcheong Day was declared bankrupt by the Daejeon District Court (No. 2001Had43), and the Plaintiff was appointed as the bankruptcy trustee of the mutual savings and finance company in Chungcheong Day on the same day.

E. On July 30, 2002, Kimnam-Myeon died, and the defendant Kim Jong-sung, Kim Jong-sung, Kim Jong-sung, Kim Jong-soo, Kim Jong-jin, Kim Jong-jin, Kim Jong-jin, Kim Jong-soo, Kim Sang-hoon, and Kim Jong-Myeon (the portion of inheritance 2/19), their wife, and their children, jointly inherited the property of Kim Nam-Myeon.

2. Determination:

A. Judgment on the ground of the plaintiff's claim

According to the above facts, the defendants, as the inheritors of Kimnam-Myeon, are obligated to pay the plaintiff the amount of the loans of this case and the principal amount of KRW 105,383,408 among them according to their statutory shares in inheritance, at the rate of 20% per annum from March 17, 1999 to the date of full payment.

B. Determination as to the defendants' defense of extinctive prescription

(1) The defendants filed the lawsuit of this case against the borrower on January 9, 2003 against the plaintiff's borrowed loan number and the defendant's claim for the loan of this case against the defendant, which is subject to the five-year extinctive prescription. However, the loan obligation of this case against the borrowed loan number, which is the principal obligation, was expired on December 20, 1994, five years after the payment date of the last overdue interest, and the extinctive prescription has already expired on December 21, 1999 after the expiration of five years from December 20, 199, which is the date of the payment of the last overdue interest, and therefore, the defendant's joint and several surety obligation of the defendant, the guarantor Kimnam-Myeon and his heir, the debtor's heir, was extinguished due to the subsidiary nature of the guaranteed obligation.

(2) When the principal obligation has expired due to the expiration of the extinctive prescription, the principal obligation shall be naturally extinguished according to the nature of the principal obligation, notwithstanding the interruption of prescription itself (see Supreme Court Decision 2000Da62476, May 14, 2002, etc.). The name of the principal obligation shall be paid only once out of the loans of the Chungcheong Mutual Savings and Finance Company, and the interest and interest in arrears until December 20, 1994 shall be paid only after the last repayment of the principal obligation and interest in arrears until December 20, 1994, and the last payment of the interest and interest in arrears has not been made after the expiration of the extinctive prescription period of 10 years after the expiration of the period of 10 years prior to the expiration of the period of 10 years prior to the expiration of the period of 10 years prior to the expiration of the period of 7 years prior to the expiration of the period of 10 years prior to the expiration of the period of 10 years prior to the expiration of the period of the period of the loans.

(3) In regard to this, the Plaintiff: (a) the part of the judgment of the first instance that recognized the existence of the obligation to lend the instant loan, which is the principal debtor, has already been established; (b) the Defendants cannot assert the subsidiary nature of the guaranteed obligation on the premise that the said principal obligation has expired; and (c) the Defendants, the joint and several sureties who were joint and several sureties who were joint and several sureties who became the principal debtor and the co-defendant in a single litigation procedure were held liable to enforce joint and several liability, asserting that the extinctive prescription period for the principal obligation that had been expired late in the appellate trial, and asserting that the said obligation

The Plaintiff filed the instant lawsuit against the Defendants, seeking the payment of the loan of this case, and received the judgment of the first instance court in favor of the Defendants. In the first instance trial proceeding, the number of borrowed money was deemed to have been led to the confession, and the Defendants also did not raise any defense as to the extinctive prescription. The judgment of the first instance is obvious that the part concerning the number of borrowed money among the judgment of the first instance became final and conclusive because only the Defendants appealed against the judgment of the first instance, and the number of borrowed money was not appealed.

However, according to Article 433 of the Civil Code, when the principal obligation has become extinct, the surety may invoke the extinction of the prescription, and even if the principal obligor waives the benefit of prescription, the surety shall have no effect on the surety (see Supreme Court Decision 89Da1114, Jan. 29, 1991). Thus, even if the extinctive prescription has already been completed in the lawsuit of the first instance court of this case, which was brought after the expiration of the extinctive prescription of the borrowed name as the principal obligor, and its obligation has become final and conclusive because the borrowed name of the principal obligor did not claim the extinctive prescription, the effect of waiver of the extinctive prescription benefit does not extend to the surety Kimnam-Myeon and his heir, which are the surety, and there is no reason to dispute this, and in addition, in full view of these circumstances, the appellate court may use the extinctive prescription of the principal obligation in the lawsuit of this case, which is the appellate court, in principle, as well as the new arguments and evidence that the Defendants had not submitted at the first instance court.

(4) In addition, the plaintiff filed an application for voluntary auction against the instant real estate owned by Chungcheong Mutual Savings and Finance Company and Kim Nam-nam, a joint surety and a surety to secure another's property, and served a decision on voluntary auction. ② The above decision on the commencement of auction has the effect of seizure pursuant to Article 603 (1) and (4) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002; hereinafter the same) and the above decision on the commencement of auction has the effect of seizure even in accordance with Articles 603 (4) and 611 of the former Civil Procedure Act, since the above decision on the commencement of auction has been registered with respect to the instant real estate, the plaintiff's claim for loans against the number of borrowed persons who are the principal debtor has been suspended by the delivery of the above decision on commencement of auction and the registration on the above decision on the commencement of auction.

(A) The right to collateral security has been established for the instant real estate owned by the joint and several surety and the surety Kim Nam-nam, with the loan of this case as the secured obligation, and the Chungcheong Mutual Saving and Finance Company applied for voluntary auction as the Daejeon District Court 97 Hu650 decided March 8, 1997 upon receipt of the decision to commence the sale of real estate on March 10, 1997, and the registration has been completed on March 10, 1997, and all of the dividends procedures have been completed thereafter.

(B) When a decision to commence voluntary auction is delivered to the real estate owner who is a joint and several surety and a surety who has pledged his/her property to secure another's property or a registration on the decision to commence voluntary auction has been made, the effect of seizure under Article 603 (4) of the former Civil Procedure Act shall be effective, but the interruption of prescription due to such seizure shall, in principle, be effective against the owner of the real estate, and the interruption of prescription shall not extend to the principal debtor who is not the owner unless he/she notifies the seizure (Article 176 of the Civil Act), and even if there is a reason for the interruption of prescription against the principal debtor who is not the

(C) In addition, in order to recognize the validity of interruption of prescription by deeming that a seizure of the auction procedure has been notified to the principal debtor who is an interested party pursuant to Article 176 of the Civil Act, it shall be served on the principal debtor by means of delivery of the decision on commencing auction or the notice on the date of auction so that the principal debtor can be informed of such seizure (see Supreme Court Decision 93Da21477 delivered on January 11, 1994).

The above Daejeon District Court's decision on commencement of auction or auction date notice pursuant to Article 3 of the Act on Special Measures for Overdue Loans at Financial Institutions (repealed by Act No. 5693 of Jan. 29, 199) can be delivered to the address indicated in the registry book at the time of request for auction, unless the above decision on commencement of auction or auction date notice is indicated in the registry book at the time of request for auction or the above decision on auction date can be delivered to the court by public notice. Thus, just because the above decision on commencement of auction or auction date notice on auction was completed, it cannot be presumed that the above decision on commencement of auction was sent to the number of borrowed persons who are the principal debtor through delivery by mail (delivery) or delivery by public notice rather than by public notice. However, considering that the above decision on commencement of auction or auction date notice on auction date was not recorded in the registry book at the time of request for auction, it cannot be assumed that the above decision on commencement of auction or auction date was delivered to the number of borrowed persons who are the principal debtor at the above time of delivery by public notice (see Supreme Court Decision 2020Da1414, Dong-24, supra.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is decided to accept the appeal by the defendants and revoke the judgment of the court of first instance, and it is so decided as per Disposition. [Attachment] The real estate list is omitted.

Judges Kim Yong-deok (Presiding Judge)