In a case where Eul, the representative of Gap corporation, jointly and severally guaranteed the debt to Byung bank, extended the repayment date without Eul's consent, but Eul prepared and delivered a letter of promise to repay the loan thereafter, the case holding that the court below erred by misapprehending the legal principles as to the existence of an expression of intent, on the ground that it is reasonable to view that the expression of intent includes an expression of intent to agree ex post to extend the repayment date of the credit transaction agreement as a joint and several surety in the status of the principal debtor Gap corporation, the principal debtor, with knowledge that the repayment date of Eul's credit transaction agreement has been extended at the time of the preparation of a letter of commitment, and that such expression of intent includes an expression of intent to agree ex post

Article 105 of the Civil Act

[Plaintiff-Appellant] K&C Co., Ltd. (Seoul High Court Decision 2006Na14488 delivered on May 2, 2007)

Defendant (Attorney Kang Young-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2009Na35882 decided December 4, 2009

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

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the scope of application of the principle of interpreting terms and conditions among the first ground of appeal

The plaintiff alleged in this part of the grounds of appeal that the third party who is not at all related to the principal debtor becomes joint and several sureties with respect to the interpretation of a credit transaction agreement or household loan agreement and the case where the representative of the principal debtor becomes joint and several sureties as in this case shall vary in the application of the principle of disadvantage to the person who prepares a contract interpretation. However, this cannot be accepted merely

2. Of the grounds of appeal No. 1, as to the misapprehension of the legal principle as to implied consent at the time of extension of the repayment deadline

According to the reasoning of the lower judgment, the lower court determined that the Defendant’s joint and several liability was once extinguished, on June 30, 2006, on the ground that the Korea Venture Savings Bank did not obtain the Defendant’s consent at the time of extension on August 30, 2006 of the repayment date of the instant loan.

The Plaintiff’s allegation in this part of the grounds of appeal is based on the premise that the court below extended the effective repayment date for the loan of this case between the Daedong Mutual Savings Bank and the original co-defendant, Co-Defendant, Ltd. (hereinafter “the original mining foundation”). However, if there was an effective repayment date extension agreement, the Defendant was well aware of the extension of repayment date as the representative of the original mining foundation. Thus, the Defendant’s joint guarantor should be deemed to have agreed to the extension of repayment date at the time when the repayment date of the loan of this case was extended.

However, even if the defendant was well aware of the extension of the repayment date of the loan of this case at the time of extension of the repayment date of the loan of this case, it cannot be deemed that the defendant naturally consented to extension of the repayment date as a joint and several surety, by distinguishing the status of the defendant as a representative of the original mining foundation and the status of natural person as a joint and several surety. The judgment of the court below is just and it is not erroneous in the misapprehension of legal principles

The ground of appeal on this part is without merit.

3. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined on June 30, 2005 that, between the Hanwon and the Hanwon, the Hanwon Mutual Savings Bank entered into the credit transaction agreement of this case with 1.6 billion won per annum, 12% per annum, 23% per annum, 23% per annum, 23% per annum, and 30 June 30, 2006, and the Defendant, the representative of the Hanwonwon New Deposit Bank, as the principal of the loan transaction agreement of this case, jointly and severally guaranteed the obligation under the loan transaction agreement of this case, which is the terms and conditions of the financial institution, and the guarantee of the loan transaction agreement of this case (hereinafter "the terms and conditions of this case"), Article 9 (1) provides that "joint and several guarantors are jointly and severally liable for all obligations under this agreement to the debtor, and that, if the repayment date of the obligation under this agreement is extended with the consent of the guarantor under the agreement, the surety shall be deemed to have been extended to 30% or 6060% of the loan agreement."

Furthermore, according to the reasoning of the judgment below, when the plaintiff who acquired the claim for the loan of this case upon the decision of the Financial Supervisory Commission requested repayment of the loan of this case against the original loan and the defendant, the defendant, on December 28, 2007, prepared and submitted to the plaintiff a joint signature signed by the representative of the original mining foundation and the defendant, "No later than February 29, 2008, the loan of this case (the balance 1,679,470,03 won, June 30, 2005, the maturity date, August 30, 2006) which the plaintiff acquired from the original mutual savings bank, and no objection is raised against the plaintiff's civil and criminal measures after the lapse of 00 days from the date of loan of 1,679,470,03 won, June 30, 2005, and the defendant, on June 30, 2006, transferred the loan of this case to the plaintiff 200,000,00 won loan of this case.

According to the above facts established by the court below, at least at the time when the above letter of credit transaction was prepared, the defendant knew that the repayment date of the credit transaction agreement of this case was extended on August 30, 2006, and expressed his intent to repay the loan of this case in the status of the representative of the original oreging machine as the principal debtor and the joint guarantor, and it is reasonable to view that such declaration of intent includes an expression of intent to consent ex post to the extension of the repayment date of the credit transaction agreement of this case as the joint guarantor

Nevertheless, in light of the circumstances stated in its holding, the court below held that it cannot be interpreted that the defendant's obligation of the guaranteed debt already extinguished or impliedly consented to the extension of the repayment date on the ground that the defendant prepared and delivered the letter of undertaking or the interview. Thus, the court below erred by misapprehending the legal principles as to the existence of declaration of intention and thereby affecting the conclusion of the judgment.

Meanwhile, the court below held that, in addition to the above judgment, even if a family approval or consent is acknowledged as a family decision, in light of the circumstances leading up to the preparation of the above commitment, it is reasonable to view that the defendant obtained the defendant's assertion as to the defendant's joint and several liability without knowing that the obligation has already been extinguished, and that the mistake as to the existence of such obligation is an error as to the important part of a juristic act, and therefore, the court below held that the preparatory document dated July 10, 2009 containing the expression of intent of revocation on the ground of the above mistake was lawfully revoked upon delivery to the plaintiff. However, the defendant's failure to know that his joint and several liability had already been extinguished is an error in the motive of expression of intent, and the court below erred by misapprehending the legal principles as to the motive mistake.

The Plaintiff’s assertion in this part of the grounds of appeal is with merit (However, on the premise that there was a valid agreement on extension of the repayment date of the principal obligation, the court below should re-examine the Defendant’s consent on extension of the repayment date, on the other hand, by recognizing the fact that the repayment date of the instant loan was not notified to the Defendant, his representative, or that there was no consent to the extension of the repayment date of the instant loan, and therefore, it would be difficult to see that there was no agreement on extension of the repayment date between the Daejin Mutual Savings Bank and the Maneung Savings Bank, a principal debtor. Accordingly, the court below should re-examine the issue of whether the agreement on extension of the repayment date was valid or not after the remand Mutual Savings Bank and the Maneung Savings Savings Bank after remand

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 on the bench.

Justices Min Il-young (Presiding Justice)