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(영문) 서울고등법원 2015.07.07 2015나2017836
보증채무금
Text

1. The plaintiff's remaining part of the judgment of the court of first instance excluding the part against the plaintiff which became final and conclusive by the judgment of remand.

Reasons

1. Of the Plaintiff’s instant claim, the remainder, excluding the portion of KRW 453,017,750 among the Plaintiff’s instant claim, and the portion of KRW 5% per annum from August 4, 2012 to January 10, 2014, and KRW 20% per annum from the next day to the date of full payment, was determined by the judgment of remand, and thus excluded from the scope of judgment of the party after remand.

2. The reasoning of the court's explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments to the 7th judgment of the court of first instance, No. 7, 13, and therefore, it shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. As to the matters of additional determination, the plaintiff, the trustee in bankruptcy, asserts that even if the second amendment contract of this case was invalid as a false representation, it constitutes a bona fide third person who cannot be asserted by the defendant.

On the other hand, the defendant's guarantee of subcontract consideration is a mutual insurance conducted for the mutual interest of the members of the association in its nature and similar to the guarantee insurance (see, e.g., Supreme Court Decision 2008Da88221, Jul. 9, 2009). Therefore, the legal doctrine of insurance applies to this case (see, e.g., Supreme Court Decision 2008Da88221, Jul. 9, 2009). Meanwhile, pursuant to Article 644 of the Commercial Act

Since a guarantee insurance contract has the essence of an insurance contract as an insurance contract, at least, the existence of an insurance accident at the time of the contract must not be determined in order to effectively establish the contract. If the principal contract of a guarantee insurance contract is null and void as a false declaration of agreement, such guarantee insurance contract is null and void since it constitutes a case where an insurance accident cannot occur.

The reason why a guarantee insurance contract is invalid is that it satisfies the unique requirements as an insurance contract.

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