(영문) 대법원 2016.4.29.선고 2015다76011 판결

Examining the reasoning of the first instance judgment cited by the lower court in light of the relevant legal principles, the lower court’s rejection of the Defendant’s ground of appeal that the lawsuit seeking revocation of the fraudulent act of this case was instituted after the lapse of the limitation period of one year under Article 406(2) of the Civil Act, on the grounds as indicated in its reasoning. In so doing, it did not err by misapprehending the legal doctrine

2. As to the ground of appeal on the preserved claim

A. citing the reasoning of the judgment of the court of first instance, the lower court determined that the Plaintiff’s joint and several several liability claim against C constitutes a preserved claim of this case, on August 28, 2009, on the ground that: (a) the Plaintiff lent KRW 30 million to D on November 28, 2009, set the due date for repayment; and (b) C had joint and several liability therefor.

B. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

1) Even if there was an awareness of the purpose of use of a promissory note as to securing certain specific person’s obligations, such fact may be one of the active factors in deeming that the issuer of a promissory note has an intent to bear a civil guarantee liability under the civil law. However, such fact cannot be inferred from such fact that a civil guarantee agreement is established between the issuer of a promissory note and the obligee. Furthermore, even if the issuer of a promissory note bears a civil guarantee liability for the obligations arising from the issuance of a promissory note from the obligee’s standpoint, the issuer of a promissory note had the intent to demand the issuer of the promissory note, and accordingly, the issuer of the promissory note has issued a promissory note in response to the intent of the obligee and the obligee’s awareness of the contents of such intent and obligations. In other words, it is deemed that the issuer of a promissory note was not merely granted credit to the obligee, but also granted credit in the form of a civil guarantee under the civil law, between the obligee and the issuer of a promissory note, the motive leading up to the issuance of a promissory note and the same shall be established only between the issuer and the issuer.

2) According to the records, in the process of borrowing KRW 30 million from the Plaintiff on August 28, 2009, C issued and delivered the Promissory Notes in this case to the Plaintiff as joint issuers with D, etc., with a face value of KRW 30 million, and at the sight of the due date, as joint issuers with D, etc., and the Plaintiff directly obtained a power of attorney attached with a certificate of personal seal impression from C and entrusted C with the preparation of the Promissory Notes as a proxy of C. However, in the process, C cannot be seen as having any objective data to verify the existence of a guarantee contract under the civil law between the Plaintiff and C, in light of the overall circumstances before and after the issuance of the Promissory Notes in this case, including the Plaintiff and D and C’s relation, the motive and negotiation process of the issuance of the Promissory Notes in this case, and the actual profits accrued from the issuance of the Promissory Notes in this case.

3) Examining these circumstances in light of the legal principles as seen earlier, even if C knew of the fact that the Promissory Notes was issued in order to secure the Plaintiff’s obligation to borrow money, such circumstance alone is difficult to deem that C had an intention to bear a civil liability even from the fact that C had an intent to assume a debt on the Promissory Notes as the issuer of the Promissory Notes.

4) Nevertheless, the lower court: (a) deemed that C provided joint and several sureties’s debt owed to D with respect to the Plaintiff; and (b) concluded that the Plaintiff’s joint and several sureties’s debt constitutes a preserved claim for the obligee’s right of revocation. Therefore, the lower court erred by misapprehending the legal doctrine on the establishment of a civil guarantee agreement with respect to the issuance of promissory notes, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Conclusion

Therefore, 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.