[1] The case holding that where a joint and several surety obligor who was rendered a final and conclusive judgment against the previous suit filed a lawsuit of objection against the obligee on the grounds that the principal obligation became extinct after the closing of argument in the previous suit, the claim may be asserted for the extinction of the final and conclusive joint and several surety obligation by referring to the legal doctrine as to the subsidiary nature

[2] Whether a special contract for loss of term interest is presumed to be a special contract for loss of term interest (affirmative)

[3] The starting point of counting the statute of limitations in case of an installment obligation under a special contract for loss of the benefit of formation right

[1] The case holding that where a joint and several liability obligor who was rendered a final and conclusive judgment against the previous suit filed a lawsuit of objection against the obligee on the grounds that the principal obligation became extinct after the closing of argument in the previous suit, the claim may be asserted for the extinction of the established joint and several liability by using the legal doctrine as to the appendability of the principal obligation

[2] A special contract for the loss of time-limit may be classified into two parts: (a) the special contract for the loss of time-limit under a condition precedent, which naturally causes the loss of time-limit and the arrival of time-period due to the occurrence of a certain cause, and (b) the special contract for the loss of time-limit maturity, which provides that the occurrence of time-period shall take place only through the obligee’s act, such as the obligee’s notice or claim after certain cause occurs; and (c) the special contract for the loss of time-limit may fall under any one of the two. However, in general, it is reasonable to presume the special contract for the loss of time-limit maturity as a special contract for the loss of time-limit under a condition precedent, unless there are special circumstances to see that it is a special

[3] Where there is a special contract for loss of right of formation, the special contract is for the benefit of creditor, and even if the cause for loss of right of time has occurred, the creditor may freely choose whether to claim the remainder of the whole amount in lump sum or to claim the installment payment in previous terms. As such, even if there is a special contract for loss of right of time has not been performed once for the installment payment, the extinctive prescription shall run in sequence from each installment at the arrival of the due date for each payment, and it shall run from that time only when the creditor has expressed his/her intention to claim the repayment of the whole remainder

[1] Articles 165, 433, and 440 of the Civil Act / [2] Articles 166(1) and 388 of the Civil Act / [3] Articles 166(1) and 388 of the Civil Act

[1] Supreme Court Decision 89Meu114 delivered on January 29, 1991 (Gong1991, 852), Supreme Court Decision 2000Da62476 delivered on May 14, 2002 (Gong2002Ha, 1389) / [2] Supreme Court Decision 97Da1290 delivered on August 29, 1997 (Gong197Ha, 2867), Supreme Court Decision 2002Da28340 delivered on September 4, 2002 (Gong2002Ha, 2334)

Kim Jina Kim

Daewoo Capital Co., Ltd.

Busan District Court Decision 2003Da51893 delivered on August 22, 2003

May 21, 2004

1. The confirmation board with the executory power of loans claim No. 99Da13320 against the defendant's plaintiff;

Compulsory execution based on the text of decision shall be made in 187,905 won each month from April 20, 1998 to May 20, 1999.

An order to pay 24% interest per annum for each debt and each such debt from the following day to the full payment;

only one part shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The total cost of a lawsuit shall be three minutes, which shall be borne by the plaintiff and the remainder by the defendant.

The defendant's compulsory execution based on the executory exemplification of a final and conclusive judgment claiming a loan claim against the plaintiff by Busan District Court 9Da13320 (the plaintiff sought confirmation of non-existence of joint and several surety obligation by the above final and conclusive judgment, and changed in exchange for the plaintiff at the trial).

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in light of the purport of the whole pleadings in each entry of Gap evidence 1-1-3, Gap evidence 2-4, and Gap evidence 5-1-3.

A. On August 7, 1997, Kimsan Co., Ltd. (hereinafter referred to as "non-party company")'s director Kim Jong-san, a director of the non-party company (hereinafter referred to as "non-party company") paid 2,640,000 won for the purchase of 12,180,00 won for 3,00,000 won for 12,180,000 won under the name of the non-party company, and the remaining 9,540,000 won for 9,540,000 won for 3,00,000,000 won for 24 times each month from September 20, 1997 to August 20, 199, the non-party company concluded a joint and several surety agreement with the non-party company to pay 187,905 won for 20,000 won for 20,000 won for 6,000 won for 9.

B. Around April 1, 1998, the non-party company paid the principal and interest of the seven-time installment (7-time installment) late April 1, 1998, and the non-party company did not repay the principal and interest of the installment after eight-minutes on April 20, 199. The defendant filed a lawsuit against the plaintiff on February 24, 1999 against the plaintiff for the performance of joint and several liability obligations for the above installment loans. On August 18, 200, Busan District Court 9Da13320 on August 18, 200, the non-party company lost the benefit of April 20, 198 due to the non-party company's failure to pay the principal and interest after eight times, and the non-party company's non-party company's non-party company lost the benefit of April 20, 198 and paid the principal until that time. The judgment dismissed the plaintiff's appeal order and its delay damages.

2. The parties' assertion and judgment

A. The plaintiff asserted that the obligation to return the installment of this case to the defendant of the non-party company, the principal debtor, is a commercial bond and the extinctive prescription has expired, and thus, the plaintiff's joint and several liability pursuant to the above final judgment also expired, while the defendant asserts that the plaintiff's lawsuit of this case is against the res judicata effect of the above final and conclusive judgment No. 99Da13320

B. First of all, the defendant's argument that the interruption of prescription against the principal obligor is effective against the guarantor (Article 440 of the Civil Act), but even if the interruption of prescription due to a judicial claim against the guarantor is recognized only as relative effect, it is not recognized as an extension of the extinctive prescription period under Article 165 of the Civil Act as well as an interruption of prescription as to the principal obligor, and Article 165 of the Civil Act provides that the period of extinctive prescription shall be 10 years, even if the principal obligor's claim established by the judgment falls under the short-term extinctive prescription period, but it is no more meaningful purpose of the short-term system, which provides prompt confirmation of legal relations, and thus, it shall be returned to the ten-year prescription period, and since the judgment in favor of the principal obligor becomes final and conclusive, it shall not be deemed that the guaranteed obligation is separated from the principal obligation and its existence or extinguishment of the principal obligation after the final and conclusive judgment became final and conclusive, and thus, the plaintiff's assertion that the extinctive prescription has not been established at the time of oral argument in the fact-finding.

C. Next, we examine the scope of the obligations of the non-party company extinguished by prescription.

(1) According to the facts acknowledged in paragraph (1) above, the defendant is a corporation engaged in the business of lending goods, etc., and the loan of this case to the non-party company constitutes a basic commercial activity under Article 46 of the Commercial Act. Thus, since the defendant's claim for the installment of this case against the non-party company constitutes a commercial activity, the extinctive prescription shall expire if it is not exercised for five years from the time it can exercise its right pursuant to Article 64 of the Commercial Act. In case where the principal obligation becomes extinct by prescription pursuant to Article 433 (1) of the Civil Act, the guarantor may invoke the extinction of prescription (see Supreme Court Decision 89Meu114 delivered on January 29, 191).

(2) However, if a special contract for the loss of interest occurred by the above contents, the company should automatically lose its interest during the period of 10 days, and thus the obligee's act of losing its interest upon the occurrence of 19 years ago, and two different special agreements for the loss of obligee's interest upon the occurrence of 19 days later. The company can, as a matter of course, calculate the remainder of the period of 19 days later than 10 days later than 10 days later than 20 days later than 3 days later than 9 days later than 9 days later, for the total amount of 9 days later than 9 days later than 9 days later. It is reasonable to presume that the special agreement for the loss of obligee's interest was for 19 days later than 2 days later than 9 days later than 9 days later than 9 days later. It is reasonable to conclude that the obligor had a special agreement for the loss of obligee's interest upon the completion of 19 days later than 9 days later than 2 days later than 9 days later.

(3) As to whether there was the defendant's act of losing the benefit of time against the non-party company, there is no evidence to prove that the defendant had expressed his/her intention to seek the full repayment of the remaining debt to the non-party company, separate from claiming the loss of the benefit of time against the plaintiff, and the plaintiff voluntarily stated that there was no fact that the defendant filed a claim for the full payment of the remaining debt by asserting the loss of the benefit of time against the non-party company, which is the principal debtor, and it is difficult to conclude that there was an intention to claim the full payment of the remaining debt to the non-party company, which is the principal debtor, solely because the defendant asserted the loss of the benefit of time against the non-party company, which is the joint guarantor, and demanded the full repayment of the remaining debt, it is difficult to conclude that there was an intention to claim the full payment of the remaining debt against the non-party company,

(4) Conclusion

Ultimately, from April 20, 198 to May 20, 1999, the debt of 187,905 won for each of the installment payments to the defendant of the non-party company from April 20, 1998 to May 20, 199, and damages for delay at the rate of 24% per annum from the next day to the date of full payment, shall be retroactively from the date of the closing of the argument in this case, and it is apparent that the five-year period, the commercial prescription period, has been expired. However, the part of each installment payment of the non-party company, the payment period of which comes after June 20, 199, has not yet expired. Accordingly, since the plaintiff's joint and several surety debt of the non-party company for which the extinctive prescription has been completed in accordance with the legal principles as to the principal debt of the guaranteed obligation, the compulsory execution of the above part under the premise that the plaintiff's joint and several surety obligation of the non-party company shall continue to exist shall be dismissed.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-ho (Presiding Judge)