[1] In a case where the surety performs the surety obligation or approves the surety obligation upon the expiration of the extinctive prescription of the principal obligation, whether the surety may claim the extinguishment of the surety obligation on the ground of the extinguishment of prescription of the principal obligation (affirmative in principle)

[2] The case holding that the judgment below which held otherwise erred in the misapprehension of legal principle in a case where Gap still asserted the completion of the extinctive prescription of the principal obligation according to the subsidiary nature of the guaranteed obligation, in a case where Eul jointly and severally guaranteed the principal obligor Eul's obligation to Byung Co., Ltd., and Eul Co., Ltd.'s principal obligation became extinct due to the expiration of the extinctive prescription and Byung did not raise any objection against Gap's claim for a compulsory auction on Eul's real estate based on the guaranteed obligation

[1] Even if the extinctive prescription of a surety obligation is not completed due to such reasons as suspending the extinctive prescription of the surety obligation, the primary obligation is naturally extinguished due to the completion of the extinctive prescription, and thus the surety obligation also becomes extinct depending on the nature of the surety obligation. Furthermore, even if the surety performed or approved the surety obligation upon the expiration of the extinctive prescription of the primary obligation, the waiver of the benefit of the surety obligation from the act of the surety other than the primary obligor does not become effective, and the surety may still claim the extinction of the surety obligation on the ground of the expiration of the extinctive prescription of the primary obligation, unless there are other special circumstances to deny the nature of the primary obligation, such as where the surety expressed his/her intent to

[2] The case holding that in a case where Gap filed a compulsory auction on Eul's real estate based on Eul's guaranteed obligation and received dividends in the auction procedure after Eul's principal obligation became extinct due to the expiration of the extinctive prescription, the court below erred in the misapprehension of legal principles as to the waiver of the extinctive prescription benefit on the principal obligation, or the waiver of the extinctive prescription benefit on the principal obligation, on the sole ground that the waiver of the extinctive prescription benefit on the principal obligation may occur, or as Gap expressed its intent to perform the guaranteed obligation despite the expiration of the extinctive prescription on the principal obligation, since there is no special circumstance to deny the subsidiary nature of the guaranteed obligation, Gap still can claim the extinction of the guaranteed obligation on the ground of the completion of the extinctive prescription on the ground of the principal obligation's subsidiary nature, on the other hand, although the principal obligation of Eul was extinguished due to the expiration of the extinctive prescription on the principal obligation.

[1] Articles 428 and 430 of the Civil Act / [2] Articles 168 subparag. 2, 428, and 430 of the Civil Act

[1] Supreme Court Decision 78Da2157 decided Feb. 13, 1979 (Gong1979, 11847) Supreme Court Decision 2011Da78606 decided Jan. 12, 2012 (Gong2012Sang, 264)

Plaintiff (Law Firm KEL, Attorneys Lee Jae-hwan et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Law Firm Sejong, Attorney Kim Jae-in, Counsel for the bankruptcy)

Daegu District Court Decision 2009Na2260 Decided June 10, 2010

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. While the preservation of execution by provisional seizure remains effective, the exercise of rights by the creditor of provisional seizure shall be deemed to continue. As such, the interruption of prescription by provisional seizure as stipulated under Article 168 of the Civil Act shall continue while the preservation of execution by provisional seizure remains effective (see, e.g., Supreme Court Decisions 2000Da1102, Apr. 25, 2000; 2010Da88019, Jan. 13, 201).

Meanwhile, even if the extinctive prescription of a surety obligation is not completed due to such reasons as suspending the extinctive prescription of the surety obligation, the primary obligation is naturally extinguished due to the completion of the extinctive prescription, and thus the surety obligation also extinguished due to the subsidiary nature of the surety obligation (see, e.g., Supreme Court Decisions 78Da2157, Feb. 13, 1979; 201Da78606, Jan. 12, 2012). Furthermore, even if a surety performed or approved the surety obligation upon expiration of the extinctive prescription of the primary obligation, the waiver of the extinctive prescription of the primary obligation cannot be deemed effective by the surety’s act, other than the primary obligor, even if the surety expressed his/her intent to discharge the surety obligation despite the lapse of the extinctive prescription of the primary obligation, barring any other special circumstances, such as where the surety expresses his/her intent to deny the subsidiary nature of the primary obligation.

2. According to the reasoning of the judgment below and the evidence duly admitted by the court below, the defendant's joint and several liability obligations of this case against the defendant of Dong Housing Construction Co., Ltd. (hereinafter "main debtor company"), which is the main debtor jointly and severally guaranteed by the plaintiff, was registered as provisional attachment on August 7, 2001 after the expiration of the extinctive prescription period from August 13, 1997, when five years have elapsed since the expiration of the extinctive prescription period from August 13, 1997. Thus, the extinctive prescription of the above loans against the main debtor company and the plaintiff was completed at least at least after the expiration of the extinctive prescription period of the commercial joint and several liability obligations of this case against the plaintiff (hereinafter "joint and several liability obligations of this case"), and the provisional attachment registration of this case was completed on August 7, 2001 by the date when the defendant obtained a decision of provisional attachment on August 21, 2001, and each of the above provisional attachment registration of 201.

In light of the above legal principles, since the extinctive prescription of the debt of this case is interrupted by the above provisional attachment on August 7, 2001 and its effect continues to exist at least on November 11, 2004, the court below erred in holding that the extinctive prescription of the debt of this case was expired around August 13, 2004. However, even if the prescription prescription of the debt of this case was suspended by the above provisional attachment or compulsory execution, in addition to the above judgment, the court below held that the debt of this case against the principal debtor company was extinguished separately and the debt of this case was extinguished by the completion of the extinctive prescription, and thus, it cannot be said that the error of the judgment itself affected the conclusion of the judgment.

3. Meanwhile, the court below rejected the Plaintiff’s claim of this case on the ground that, based on the fact that the Defendant applied for a compulsory auction of real estate on the instant joint and several surety obligation on January 28, 2004, based on the real estate owned by the Plaintiff and applied for a compulsory auction on the instant joint and several surety obligation, and the Plaintiff did not raise any objection to the appropriation of dividends for the payment of part of the claim for the instant loan, the Plaintiff was deemed to waive the benefit of extinctive prescription as to the instant joint and several surety obligation

However, according to the above legal principles, solely on the grounds that the effect of giving up the benefit of extinctive prescription on the guaranteed debt of this case may arise, the waiver of the benefit of extinctive prescription on the principal debtor company's loan of this case cannot be deemed to accrue. Moreover, the circumstance alone is insufficient to deem that the Plaintiff expressed his intent to discharge the guaranteed debt of this case regardless of the expiration of the prescription period on the loan of this case, and there is no special circumstance to deny the non-performance of the guaranteed debt according to the reasoning of the judgment below. Thus, it is reasonable to deem that the Plaintiff still can assert the extinction of the guaranteed debt of this case on the ground that the extinctive prescription period on

Nevertheless, as seen earlier, the lower court affirmed that the obligation of the instant joint and several sureties may be extinguished by the extinction of the prescription period of the principal obligation of the instant loan based on the subsidiary nature of the guaranteed obligation, but on the ground that the said joint and several sureties obligation of the instant case was renounced by the appropriation for repayment after the extinction of the prescription period, the lower court rejected the Plaintiff’s claim seeking confirmation of non-existence of the joint and several sureties obligation of the instant case with the purport that the Plaintiff cannot claim the extinguishment of the said joint and several sureties obligation due to the extinguishment of prescription period of the principal obligation of the instant loan. Accordingly, the lower court erred by misapprehending the legal doctrine on the non-existence of the joint and several sureties obligation of the instant case and the grounds for appeal

4. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)