[1] Whether the court should take into account all the circumstances under Article 6 of the former Fidelity Guarantee Act in determining the responsibility and amount of the fidelity guarantor's damage compensation under the same Act (affirmative), and the amount to be the basis for the liability for fidelity guarantee

[2] The time when the liability for delay arises

[1] Article 6 of the former Act on the Guarantee of Personal Identity (wholly amended by Act No. 6592 of Jan. 14, 2002) provides that "the court shall take into account the existence of the employer's fault in supervising the employee in determining the liability and amount of the fidelity guarantor's damage compensation, the reason why the fidelity guarantor becomes liable for the fidelity guarantee and the degree of attention in determining the amount thereof, the duties or identity of the employee, and other circumstances." In light of the purport of the above Act is to mitigate the burden of the fidelity guarantor to the extent that it does not impair the social function of the system for the fidelity guarantee, the court shall determine the liability and amount of the fidelity guarantor's damage compensation in consideration of all the circumstances under the above provision as necessary pursuant to the above provision. Meanwhile, the liability of the fidelity guarantor must be determined by considering all the circumstances before and after the occurrence of the cause for the damage to which the guarantor is liable, and if the amount of the fidelity has already been repaid and payment of the balance has been claimed as to the fidelity guarantor, the circumstances of the debt guarantee shall be determined based on the balance.

[2] The guarantor's obligation is not itself a tort liability of the guarantor, but a debt arising out of a contract for fidelity guarantee, and the due date is not specified. Therefore, the guarantor's obligation does not arise without being claimed from the creditor.

[1] Article 6 of the former Fidelity Guarantee Act (wholly amended by Act No. 6592 of Jan. 14, 2002) (see current Article 6(3)) / [2] Article 387(2) of the Civil Act, Article 1(2) of the former Fidelity Guarantee Act (wholly amended by Act No. 6592 of Jan. 14, 2002) (see current Article 2)

[1] Supreme Court Decision 80Da3057 delivered on December 28, 1982 (Gong1983, 342) Supreme Court Decision 92Da23049 delivered on September 14, 1992 (Gong1992, 285)

[Judgment of the court below]

Defendant (Law Firm Republic of Korea, Attorneys Park Jong-kin et al., Counsel for defendant-appellant)

Busan High Court Decision 2008Na19911 Decided July 3, 2009

The judgment below is reversed, and the case is remanded to Busan High Court.

1. Determination on the grounds of appeal as to the calculation of liability for fidelity guarantee

Article 6 of the former Act on the Guarantee of Personal Identity (wholly amended by Act No. 6592 of Jan. 14, 2002) provides that "the court shall take into account the existence of the employer's fault in supervising the employee in determining the responsibility and amount of the fidelity guarantor's compensation, the reason why the fidelity guarantor has made the fidelity guarantor to make his/her fidelity guarantee, the extent of his/her attention in doing so, changes in the employee's duties or identity, and all other circumstances in determining the liability and amount of the fidelity guarantor's compensation." Thus, in light of the purport of the enactment of the above Act aims to mitigate the burden of the fidelity guarantor to the extent that it does not harm the social function of the fidelity guarantee system, the court shall determine the responsibility and amount of the fidelity guarantor's

On the other hand, the guarantor's liability should be determined in consideration of all the circumstances before and after the occurrence of the cause for which the guarantor is liable on the basis of the amount of damages to be compensated by the guarantor. If part of the amount of the guarantor's liability is already repaid and the payment of the balance is requested with respect to the guarantor, the existence and limit of the guarantor's liability should be determined based on the balance (see Supreme Court Decisions 80Da3057, Dec. 28, 1982; 92Da23049, Sept. 14, 1992, etc.).

According to the records, in Busan District Court 99Gahap17596, Busan District Court 99Gahap17596, the non-party's compensation liability amount against the non-party was decided in lieu of mediation, which became final and conclusive on February 17, 2001; however, the non-party's compensation amount was partially repaid through the auction procedure on the non-party's real property; the plaintiff sought 100,000,000 won out of the above balance to the defendant who is the non-party's fidelity guarantor; the plaintiff's negligence on the supervision of the non-party; the existence of the plaintiff's negligence on the supervision of the non-party; the defendant's compensation amount was paid to the non-party; whether the non-party's compensation amount was partially repaid; and the defendant's economic circumstances, etc. are likely to be considered in accordance with Article 6 of the former Guarantee of Personal Identity Act.

Therefore, the lower court should have deliberated and determined whether the amount exceeds KRW 100,000,00 that the Plaintiff seeks, taking into account all the circumstances stipulated in Article 6 of the former Act on the Guarantee of Personal Identity based on the balance of the Nonparty’s liability.

Nevertheless, the court below erred in the misapprehension of legal principles as to Article 6 of the former Act on the Guarantee of Personal Identity and incomplete deliberation, without considering all the circumstances under Article 6 of the former Act, by misunderstanding the legal principles as to limitation of liability of a general guarantor and the legal principles as to limitation of liability of a fidelity guarantor. In light of the above legal principles, the court below erred in the misapprehension of legal principles as to

2. Judgment on the grounds of appeal on damages for delay

The guarantor's obligation is not itself a tort liability of the guarantor, but a liability arising out of a contract for fidelity guarantee, and the due date is not determined. Therefore, the guarantor's obligation is not due and shall not be liable for delay unless requested by the creditor.

However, the court below held that the defendant should pay damages for delay caused by delay of the non-party's obligation to compensate for damages without examining whether the plaintiff claimed for the performance of the credit guarantee obligation to the defendant. In so doing, the court below erred by misapprehending the legal principles as to delay of the obligation to compensate for damages and by failing to exhaust all necessary deliberations.

3. Determination on the remaining grounds of appeal

In light of the relevant laws and records, there is no illegality such as misapprehension of legal principles, violation of the rules of evidence, and incomplete hearing, as alleged in the remaining grounds of appeal.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)