2018Da42231 Loans

Plaintiff:

Defendant

Attorney Kim Sang-hoon, Counsel for the plaintiff-appellant

Daegu District Court Decision 2018Na1986 Decided August 29, 2018

July 23, 2020

The appeal shall be dismissed.

The costs of appeal shall be borne by the defendant.

The grounds for appeal are determined.

1. The Special Act for the Protection of Surety (hereinafter referred to as the "Surety Protection Act") provides for exceptions to the Civil Act with respect to guarantee, thereby contributing to the settlement of a credit society by preventing any economic and mental damage of a guarantor, which takes place without compensation, and by establishing a reasonable practice of guarantee agreement for monetary obligations, (Article 1). When entering into a guarantee agreement, the maximum amount of the guaranteed obligation must be specified in writing (Articles 4 and 6). When entering into the guarantee agreement, if there is no agreement for the guarantee period, the period shall be three years, and if there is no agreement for the guarantee period, the guarantee period may be renewed (Article 7(1)), and if there is no agreement for the guarantee period, the guarantee period at the time of entering into the contract shall be deemed the period (Article 7(2)).

In light of the contents, structure, legislative purpose, etc. of these regulations, the purport of Article 7(1) of the Surety Protection Act is to protect the guarantor by specifying the scope of the guaranteed obligation. Therefore, the term "period of guarantee" prescribed in this provision is interpreted as the period of the principal obligation to which the guarantor is responsible for this guarantee unless there are special circumstances, and it cannot be viewed as the term of the guaranteed obligation.

2. The court below accepted the plaintiff's claim on the following grounds. On July 14, 2009, the non-party prepared and delivered to the plaintiff a letter of claim 120,000,000 won in total and the due date for repayment on August 31, 2009, respectively, and the defendant jointly and severally guaranteed the loan obligation. Accordingly, the defendant is liable to pay the plaintiff the loan amount of KRW 120,000,000 and the delay damages therefor.

The defendant asserts that the liability for joint and several liability has ceased because the period of guarantee period of three years under Article 7(1) of the Surety Protection Act has expired from the date of the defendant's filing of the suit in this case. However, it cannot be said that the guarantor's liability for guarantee has ceased to exist merely because the guarantee period of three years under Article 7(1) of the Surety Protection Act has expired.

3. The judgment of the court below is just based on the above legal principles. The judgment of the court below did not err by misapprehending the legal principles as to the interpretation of the guarantee period under Article 7(1) of the Surety Protection Act, contrary to the assertion in the grounds of appeal.

4. The appeal by the defendant is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok