Where a third party concludes a monetary loan contract with a financial institution as a principal debtor or a joint guarantor in order to avoid the provisions of credit limit, etc. on the actual borrower, whether the above loan contract for consumption is null and void as a joint signature (negative in principle) and the requirements to regard the above loan for consumption as a joint signature

Article 108 of the Civil Act

Supreme Court Decision 2008Da7772, 7789 Decided June 12, 2008

ABK Savings Bank (Law Firm Tae, Attorneys Kim Jong-ju, Counsel for the plaintiff-appellant)

Defendant (Attorney Yoon-sik et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2013Na48677 Decided February 13, 2014

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

In order for a false agreement to be established, there should be an agreement with the other party as to the difference without any difference between the truth and indication of the expression of intent and the other party. If a third party signing and sealing directly as a principal debtor or joint guarantor in loan-related documents, such as a letter of loan for consumption agreement, the third party itself indicates that it is the debtor of the loan-related documents, and even if a third party has the intention to obtain a loan under the name of a third party and to use it, or to repay principal and interest at another party's expense, barring any special circumstance, it is merely an intention to vest economic effects under the loan for consumption contract in the name of a third party and cannot be deemed as an intention to vest economic effects on the other party, and it is difficult to deem that there is a disagreement between the third party's truth and indication. In a specific case, in order to recognize the existence of special circumstance as above, it should be proved that the financial institution vests the borrower in the legal effect of the loan as well as the agreement and understanding that the name lender will not bear the debt (see, e.g., Supreme Court Decision 2727008Da7278.

The court below accepted the defendant's loan contract of the non-party 1 and the non-party 2 to the non-party 1's non-party 7 non-party 1's non-party 7 non-party 2's non-party 1's non-party 2's non-party 1's non-party 7 non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 1's non-party 7 non-party 2's non-party 9's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1' defendant company's non-party 1's non-party company's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1'.

However, we cannot accept the above determination by the court below for the following reasons.

According to the records, in applying for the loan of this case on April 19, 2007, the defendant entered directly the credit limit amount and personal information in the credit transaction agreement and signed and sealed it. The defendant also prepared an application form for the transaction of opening a deposit account in the name of the defendant at the time of the preparation of the credit transaction agreement, and accordingly deposited the loan of this case into the defendant's deposit account established. The non-party 5, who is the employee of the Busan M&N Capital in charge of the practice of borrowed loan, was sent to the non-party 4 after hearing that the non-party 4 was responsible for the repayment of the loan of this case from the Busan Savings Bank Group, and the defendant and the non-party 5 did not directly bear any responsibility for the loan of this case from the Busan Savings Bank related person. The defendant does not know the fact that the non-party 84,18,710 won and the non-party 5 received the loan of this case from the non-party company from January 20, 2006 to January 2011.

In light of the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Busan Savings Bank as the obligor of the instant loan contract, as indicated in the loan transaction agreement of this case, was the Defendant. Therefore, the party to the instant loan contract is the Defendant under the law.

Of the circumstances indicated by the court below in determining that the loan contract of this case is a false conspiracy, the confirmation document, such as non-party 2, etc.'s non-party 2, etc.'s non-party 2, etc.'s non-party 2, etc.'s non-party 1's illegal act such as the Busan Savings Bank's circulation loan, etc. was revealed, and thus, it is inappropriate to consider the defendant's debt as the ground for denying the defendant's debt. The circumstance where the non-party company's establishment and the defendant listed in the non-party company's shares payment, the circumstance where the loan of this case was paid as the non-party company's stock payment, and the circumstance that the defendant did not pay interest on the loan of this case with his own funds is insufficient to consider the defendant's debt under the loan contract of this case which is clearly admitted to the debtor's status as the ground for denying the defendant's debt by directly signing

Nevertheless, on the grounds indicated in its reasoning, the court below deemed the loan contract of this case null and void because it constitutes a false declaration of conspiracy. In so doing, the court below erred by misapprehending the elements of consideration in determining whether a loan contract concluded in the name of a third party constitutes a false declaration of conspiracy and the legal principles on

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Yong-deok (Presiding Justice)