A. Whether there exists a separate profit among several joint and several sureties (negative)

(b) Requirements for exercising the right to indemnity among several joint and several sureties;

A. In principle, if there are several guarantors, each of them becomes a guarantor for a separate juristic act, and even if there was no joint and several surety agreement between them, even if they did not have any separate interest for the creditor, each of them must pay the full amount of the obligation to the guarantor, but if there is a special agreement between them as to the ratio of the share to be borne by each of the guarantors, they shall be subject to the equal ratio of each of them, and if there is no special agreement between them, each of them shall be subject to the equal ratio.

B. In the above case, if one of the guarantors has paid more than his share of expenses, the right of reimbursement may be exercised only for those who have not yet paid the share of expenses, except for those who have already repaid one of the other guarantors.

A. Article 439 of the Civil Act; Article 448(2) of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellant-appellee)

Attorney Lee Jae-chul, Counsel for the defendant-appellant

[Defendant-Appellee] Defendant 1 and 3 others

Seoul High Court Decision 89Na1188 delivered on June 12, 1989

The case shall be reversed and remanded to the Seoul High Court.

As to the Grounds of Appeal

The guarantor's performance of the guaranteed obligation based on the guarantee agreement with the obligee refers to the repayment of the obligation to another person actually means the repayment of the obligation to the principal obligor. In addition, the guarantor has the right to claim reimbursement against the principal obligor as a right to claim the return of his contribution, and in addition, according to Article 482 (1) of the Civil Act, the guarantor can exercise the right to claim against the principal obligor or the guarantee claim against the guarantor (joint and several surety) against the creditor extinguished by the performance as seen above in accordance with Article 482 (1) of the Civil Act within the scope of

In addition, if there are several guarantors, in principle, there is a separate benefit among them, but if there are several guarantors, each one becomes a guarantor for a separate juristic act, and even if there was no joint and several special agreement between the guarantors (guarantee Joint and Several sureties), each one must pay the whole amount of the obligation to each of the guarantors without having separate benefit to the creditor, but if there is a special agreement between them as to the ratio of the share to be borne by each of the guarantors, it is reasonable that each of the guarantors bears the burden at the equal ratio unless otherwise stipulated, but if one of the guarantors has paid the whole amount of the obligation or the part to be borne by himself, the other guarantor may claim for the reimbursement against the other guarantor, and as the other guarantor cannot claim for reimbursement against the person who has already discharged the part to be borne by himself, he shall exercise the right of reimbursement only for the person who has not yet paid the part to

In this case, the court below decided that the plaintiff provided credit guarantee to the non-party corporation, the principal debtor, from the non-party national bank, and the defendant provided joint and several surety for the loan debt with the non-party loans. Thus, the plaintiff's monetary claims against the principal debtor repaid by the plaintiff, which are equivalent to the third party's portion of the defendant's share of the monetary claims. However, the defendant submitted evidence (Evidence No. 7) by asserting that he paid not less than his share of the monetary claims at the fact-finding court, and thus, the defendant submitted evidence (Evidence No. 7). Thus, the defendant's above argument should be examined and judged as to the above argument. Thus, this is a ground for reversal of the original judgment under Article 12 (2) of the

Therefore, the original judgment shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)