[1] Criteria for determining whether a person constitutes "third party" under Article 108 (2) of the Civil Code

[2] The case holding that in case where the guarantor, who believed that the principal obligation exists through the deception of the principal obligor, entered into a guarantee agreement with the principal obligor and thereafter fulfilled the obligation as the surety, the guarantor constitutes "third party" under Article 108 (2) of the Civil Code, on the ground that he had a legal interest in the acquisition of the right to indemnity based on the false indication that the act of bearing the obligation to the creditor of the principal obligor was committed, and

[1] In principle, a false declaration of intent made in collusion with the other party is null and void and any person may assert its invalidity. However, with respect to a third party in good faith who has established a new legal interest based on the legal relationship formed externally by a false indication as a person other than the party of a false indication and the general successor, not only the party of the false indication but also any person who has established a new legal interest can not oppose the invalidation of the false indication. The purport that the false indication cannot be asserted against a third party in good faith is to protect a person who enters into a legal relationship with a legal interest in a separate legal cause. Thus, the third party's scope is not to be determined only formally based on the legal relationship, but also based on whether a new legal interest was made

[2] The case holding that in case where the guarantor believed that the principal obligation exists through the deception of the principal obligor and entered into a guarantee agreement with the principal obligor and thereafter fulfilled the obligation as the surety, the guarantor has legal interest in acquiring the right to indemnity against the principal obligor, and the acquisition of the right to indemnity requires that the principal obligation be effective due to the subsidiary nature of the guarantee, the guarantor ultimately constitutes "third party" under Article 108 (2) of the Civil Code, on the ground that the guarantor has legal interest in acquiring the right to indemnity based on the false indication that the act of bearing the obligation against the creditor of the principal obligor has a legal interest in acquiring the right to indemnity

[1] Article 108 (2) of the Civil Act / [2] Articles 108 (2), 428, and 441 of the Civil Act

[1] Supreme Court Decision 80Da1403 delivered on May 25, 1982 (Gong1982, 594) Supreme Court Decision 82Da594 delivered on January 18, 1983 (Gong1983, 422) Supreme Court Decision 94Da12074 delivered on April 26, 1996 (Gong196Sang, 1656)

Korea Facilities and Equipment Construction Financial Cooperative (Law Firm Han, Attorney Noh Jeong-soo, Counsel for defendant-appellant)

Specialized Construction Financial Cooperative (Attorney Kim Chang-soo, Counsel for defendant-appellee)

Seoul High Court Decision 99Na21624 delivered on August 12, 1999

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

We examine the grounds of appeal.

1. We examine the first ground for appeal.

A. The court below held that the defendant union guaranteed the obligation to return advance payment to the non-party to the non-party to the non-party to the non-party to the new global engineering corporation (hereinafter referred to as the "new global engineering") on the premise that the principal obligation is established on the premise that the principal obligation exists and the principal obligation does not occur, and that the non-party to the new global engineering corporation and the Young-ro plant corporation (hereinafter referred to as the "three companies") jointly and severally guaranteed the liability for indemnity that the new global engineering will bear to the defendant union upon the performance of the guaranteed obligation of the defendant union, but as long as the obligation to return advance payment to the non-party to the non-party to the new global engineering corporation, which is the principal obligation, is null and void as the non-party to the defendant union's liability is not established on the ground that the defendant union paid 660,000,000 won to the non-party to the non-party to the defendant union, even if the defendant union paid it without the guaranteed obligation.

B. However, it is difficult to accept the judgment of the court below for the following reasons.

(1) In principle, a false declaration of intent made in collusion with the other party is null and void, and any person may assert the invalidity thereof. However, with respect to a third party in good faith who has been in good faith and has established a new legal interest on the basis of the legal relationship formed externally by a false declaration as a person other than the party of the false declaration and the general successor, not only the party of the false declaration but also any person may oppose the invalidation of the false declaration (see Supreme Court Decision 94Da12074, Apr. 26, 1996). The purport that the false declaration cannot be asserted against a third party in good faith is to protect a person who has entered a legal relationship with a legal interest that is unique to a separate legal cause, and therefore, the scope of the third party should be grasped not only formally based on the legal relationship, but also whether the third party has a new legal interest

(2) According to the facts established by the court below, the defendant union believed that there was a debt to return advance payment to the non-party to the new world engineering by deception of the new world engineering, and concluded a guarantee agreement with the new world engineering and performed the debt as the guaranteed debt accordingly. Accordingly, the defendant union has a legal interest in the acquisition of the right to indemnity against the new world engineering. Such acquisition of the right to indemnity requires the validity of the obligation to return advance payment to the non-party to the new world engineering, which corresponds to the principal obligation due to the subsidiary nature of the guarantee. Accordingly, the defendant union has a legal interest in the acquisition of the right to indemnity based on the false indication that the obligation to return advance payment to the non-party to the new world engineering was due to the non-party to the new world engineering. Therefore, it is reasonable to deem that the defendant union constitutes a third party under Article 108 (2

(3) Therefore, the decision of the court below that held that the right of indemnity was not created as a matter of course due to the nature of the guaranteed debt at the time of the payment of the deposit of this case, and that the court below erred in the misunderstanding of legal principles as to the third party in a false agreement with the defendant association, which affected the conclusion of the judgment, and thus, the judgment of the court below cannot be maintained any further, on the ground that the judgment below is erroneous in the misunderstanding of legal principles as to the third party in a false agreement with the defendant association.

2. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)