Dae Young-gu Co., Ltd. (Law Firm Jungwon, Attorneys Jeon-ju et al., Counsel for defendant-appellant)

Yongnam ethyl Co., Ltd. (Attorney Cho Ho-ho, Counsel for defendant-appellant)

August 17, 2018

Changwon District Court Decision 2017Kadan1389 decided November 29, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 7,419,200 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

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

1. Quotation of the first instance judgment

The reasons for this court’s reasoning are as follows, except for the following “the second order” and “3. additional determination,” and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

A. Article 6(1) and (2) of the Special Act on the Protection of Surety (hereinafter “Surety Protection”) of the first instance judgment provides that “any obligation arising from a continuous transaction contract or other specific transaction between a creditor and a principal debtor” (Article 428-3(1) and (2) of the Civil Act shall be deemed “a large number of obligations with uncertain number of obligations” (Article 428-3(1) and (2)).

B. On the fourth part of the judgment of the first instance, Article 5(1) and (4) of the Surety Protection Act of 14 are as follows: “Article 436-2(2)1 and 2, and Article 436-2(4) of the Civil Act”; “In the event of a violation of this, the guarantor shall be exempted from his/her obligation to the extent that he/she has suffered damages to the guarantor due to such violation,” and Article 46-2(2)16 through 17 of the Civil Act shall be as follows: “In the event of a violation of this, the court may reduce or exempt the guaranteed obligation in consideration

3. Additional determination

(a) Whether a joint and several guarantee contract is non-exclusive;

Even if the non-party 1 prepared the instant contract on behalf of the defendant, the defendant asserts that the contract of this case prepared by the non-party 1 has no effect on the defendant, since the non-party 1 does not have the right to conclude the joint and several guarantee contract on behalf of the defendant.

In full view of the statements in Gap evidence No. 1, and the testimony of non-party 1 and non-party 3 of the first instance trial witness, the non-party 1 is in charge of the defendant's management director, finance-related affairs, and in relation to the construction of the construction of the case, as a field agent, the field agent and the construction work-related field agent and the preparation of documents necessary for the construction of the case. The non-party 2 affixed the defendant's name and seal to the joint guarantor column of the contract of this case. The non-party 3, who is the plaintiff's employee, visited the construction of this case on October 8, 2017, the non-party 2 and non-party 1 were in charge of the defendant's management director, the non-party 3 was in charge of the construction of this case's contract of this case, and the non-party 1 was in charge of the non-party 3's settlement of the defendant's debt of this case, and the defendant's assertion that the non-party 1 had no authority to conclude the above contract of this case.

(b) whether the scope of the joint and several sureties contract is limited to the supply price of ready-mixed which is “standard 25-24-15, quantity 1”;

The Defendant asserts that the scope of joint and several suretiess supplied to the instant construction should be limited to the obligation to pay for ready-mixeds listed in the instant contract “Standard 25-24-15, quantity 1, unit price 61,00 won” among ready-mixeds supplied to the instant construction, and therefore, among the amount claimed by the Plaintiff, the amount of the guaranteed obligation, the quantity and specification for ready-mixeds exceeding the above coverage, and the price for ready-mixed supplied by ○○ Construction for other than the instant construction should be excluded respectively.

먼저, 연대보증계약의 범위에 관하여 보건대, 갑 제1, 2, 7호증의 각 기재, 당심 증인 소외 3의 증언에 변론 전체의 취지를 종합하여 인정되는 다음의 사정들, 즉 이 사건 계약서에 기재된 “규격 25-24-15”는 굵은 골재 최대치수는 25㎜, 강도는 24㎫, 슬럼프는 150㎜인 레미콘을 가리키는 것인데, 건설 공사에 사용되는 레미콘의 굵은 골재 최대치수, 강도, 슬럼프는 필요에 따라 조절될 수 있는 것이므로, 원고가 ○○종합건설에 대하여 레미콘 공급계약을 체결하면서 위 규격의 레미콘만을 공급하기로 하였다고 보기 어려운 점, 이 사건 계약서에 계약기간 및 현장작업기간이 “2016. 9. 27. ~”으로 기재되어 있어 원고와 ○○종합건설이 이 사건 공사에 필요한 레미콘 중 단 1㎥만을 공급하기로 하는 계약을 체결했다고 볼 수는 없고, 이 사건 공사에 필요한 레미콘 전부를 공급하여 주기로 하는 계약이라고 보이는 점 등에 비추어 보면, 원고와 피고 사이의 연대보증의 범위는 이 사건 공사에 필요한 전체 레미콘에 대한 ○○건설의 대금지급채무액이라고 봄이 상당하다. 피고의 이 부분 주장은 이유 없다.

Next, there is no evidence to acknowledge that the large amount of ○ Construction supplied to a separate construction other than the instant construction is included in the amount of the guaranteed obligation requested by the Plaintiff. Therefore, this part of the Defendant’s assertion is without merit.

C. Whether the Plaintiff violated the duty to notify under Article 436-2(1) of the Civil Act

Although ○○ Construction had been in arrears with the Plaintiff at the time of concluding a joint and several surety contract with the Plaintiff, the Defendant asserted that the Defendant’s guaranteed liability should be mitigated or exempted pursuant to Article 436-2(1) and (4) of the Civil Act, since ○○ Construction had not been notified when concluding the joint and several surety contract with the Plaintiff, the Defendant breached the duty of notification, thereby causing damage to the Defendant’s joint and several liability.

In light of the following circumstances, Gap evidence No. 4 (including provisional number), and non-party 3's testimony made by the witness at the trial, i.e.,, the supply contract between the plaintiff and ○○ Construction several times, but ○○ Construction only has failed to pay the amount of 7 months in connection with the construction of the ○○ Hospital Hospital, which was not held in around 2012, and all other things have performed the obligation to pay the amount in arrears. ② The supply company of ready-mixed generally receives a joint and several guarantee from the owner while supplying ready-mixed to the construction company. The plaintiff also received a joint and several guarantee from the owner at the time of supplying the ○○ Construction. ③ In light of the above circumstances, it is difficult to view that the defendant did not have any other obligation to pay the amount in arrears, even if the defendant submitted the obligation to pay the amount in arrears on October 5, 2016 to the construction of the ○○ Construction Contract, the evidence suggesting that the defendant did not have any other obligation to pay the amount in arrears.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal is dismissed on the grounds of its merit

Judges Park Jong-il (Presiding Judge)

1) If the Defendant, a corporation operating a business, guarantees a debt related to the construction of a factory, this cannot be deemed a guarantee contract that is subject to the Special Act on the Protection of guarantors (see Supreme Court Decision 2013Da64663, Nov. 14, 2013). As such, Article 428-3(1) and (2) of the Civil Act, which is not Article 6(1) and (2) of the Surety Protection Act, shall apply. (b) For the same reason, Article 436-2(2) and (4) of the Civil Act, which is not Article 5(1) and (4) of the Surety Protection Act, is applicable.