Plaintiff (Attorney Lee Jong-young et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Jae-tae et al., Counsel for the defendant-appellant)

November 8, 2012

Changwon District Court Decision 2010Kadan10203 Decided September 22, 2011

1.The judgment of the first instance shall be modified as follows:

A. The defendant shall pay to the plaintiff 7,211,983 won with 30% interest per annum from March 28, 2009 to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. The part of paragraph (1) above may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 10 million won with 30% interest per annum from December 25, 2008 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Case summary

(a) Basic facts;

(1) From the Plaintiff, Nonparty 2 borrowed KRW 300 million in total as the funds necessary for the construction of the building located in the Gyeong-dong Hospital located in the Gyeong-dong Hospital located in the Gyeong-dong, Gyeong-dong, Seoul, as set out in the following table 1 and 2; Nonparty 2 borrowed KRW 200 million in total as No. 3 and 4; and Nonparty 1 borrowed KRW 200 million in total as No. 1 and 200 million as 5, respectively (hereinafter referred to as “the borrowed money” according to the loan purpose; Nonparty 3, 4, and 5 collectively borrowed money; and hereinafter referred to as “the borrowed money”). Meanwhile, on December 24, 2008, the Defendant jointly guaranteed the debt of the borrowed money in this case against the Plaintiff.

Non-party 2 on January 25, 2008, 100 million won on August 25, 2008, which is a joint and several surety for the debtor to pay the borrowed amount, 3% on September 25, 2009 x non-party 3% on February 24, 2009, 200 million won on September 24, 2008, 200 million won on December 24, 2008, 4% on January 23, 2009 * Non-party 2, 40% on January 23, 2009 * Non-party 2, 200 million on January 23, 2009, KRW 100 million on February 22, 2009.

[* There is no dispute between the parties that the actual interest rate on the loan of this case is 4% per month different from the description in the certificate of loan of this case (Evidence A(1)];

(2) Meanwhile, the Plaintiff, while lending each of the above loans to Nonparty 2 and Nonparty 1, deducted interest exceeding the Interest Limitation Act as interest. According to the Interest Limitation Act, interest exceeding 30% per annum under the Interest Limitation Act is null and void (Article 2(3)), even where the obligor voluntarily pays the interest exceeding the maximum interest rate, the amount equivalent to the interest paid in excess shall be appropriated for the principal (Article 2(4)), and where the amount of the deduction is made in advance by the obligor as the principal and exceeds the amount calculated according to the highest interest rate under the Interest Limitation Act by using the amount actually received by the obligor as the principal and as the principal, the excess portion shall be deemed appropriated for the principal (Article 3). Accordingly, where the amount equivalent to the interest paid in excess exceeds the amount calculated according to the highest interest rate under the Interest Limitation Act, the loan amount and the interest rate applied between the parties are as follows.

Non-party 2 annually on January 25, 2009, 195,625,000 won on August 25, 2008, which is a joint and several debtor's joint and several surety, 30% per annum on January 25, 2009 x (30% per annum on September 24, 2008, 189,77,054 won, 20% per annum on February 24, 2009, non-party 2, non-party 13 on December 24, 2008, 30% per annum on January 23, 2009, 30% per annum on January 23, 2009, non-party 2, non-party 4, 2, 250, 250 won per annum on January 23, 2009, non-party 30% per annum on February 30, 2009.

(3) On March 27, 2009, Nonparty 2 paid KRW 300 million (hereinafter “instant KRW 300 million”) to Nonparty 6, who was designated by the Plaintiff as the receiving authority, for the repayment of the obligation.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence No. 1 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

B. The assertion

With respect to the loan debt of this case, the plaintiff sought the performance of the guaranteed obligation against the defendant, and the defendant asserted that the loan debt of this case was repaid to the plaintiff by paying the loan of 300 million won to the plaintiff, and the plaintiff asserts that the 300 million won in this case is appropriated to the hospital loan debt of this case.

2. Determination

The following shall be examined in sequence on the occurrence and extinguishment of the guaranteed obligation:

A. Determination on occurrence of guaranteed liability

The Defendant’s joint and several guarantee of the instant loan obligation to the Plaintiff is as seen earlier. Barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the interest or delay damages calculated at the rate of 30% per annum under the Interest Limitation Act, as it is within the agreed interest rate from March 28, 2009 to the date of full repayment, which is the day following the date when the Plaintiff was the person who received full repayment of the interest.

B. Determination on appropriation of reimbursement

(1) The method of appropriation of performance and related legal principles

If a debtor bears several obligations for the same kind of obligation and the offer of performance does not extinguish all of his obligations to the same creditor, the designation of the person to be performed in accordance with Article 476 of the Civil Act is made by designation of the person to be performed in advance and by designation of the next person to be performed in accordance with Article 476 of the Civil Act. In this case, the designation of the person to be performed must be made at the time of performance, and any appropriation after performance may harm the interests of the other person, so it is possible to obtain his consent, and the person to be performed in the event of the exercise of the right to designate shall exercise the right at the time of performance. If the appropriation is not applied by the person to be performed or to the above person to be performed, the appropriation of performance is made in the order stipulated in Article 477 of the Civil Act. On the other hand,

However, since the provisions of Articles 476 through 479 of the Civil Act concerning the appropriation of performance are voluntary provisions, if there is an agreement between the person who is to be repaid and the person who is to be repaid, the effect of the appropriation of performance arises pursuant to the agreement (Supreme Court Decision 84Meu1324 delivered on March 24, 1987, etc.), and the agreement on the appropriation of performance does not necessarily have to be explicitly and explicitly stated, and it is possible

Meanwhile, in cases where a debtor bears several obligations for the same kind of obligation to the same creditor, if the parties do not designate the obligation to be appropriated for the repayment, the payment shall be made legally in accordance with Article 477 of the Civil Act, and in particular, according to Article 477 subparagraph 4 of the Civil Act, in cases where the order of statutory appropriation of obligation is identical under Article 4777 subparagraph 4 of the Civil Act, the obligation shall be appropriated for the repayment of each obligation in proportion to the amount of the obligation. Thus, unlike the legal effect that is given by the foregoing proportional appropriation of obligation according to the above proportional appropriation of obligation, the person who claims that the obligation is appropriated for the full amount of the obligation shall be liable to assert and prove the fact (see Supreme Court Decision 2007Da77712, Feb. 12, 2009).

(2) Determination

In light of the following circumstances: (a) No. 3, No. 4, and No. 8 of the loan No. 4 and the loan No. 4, and No. 7, and No. 2 of the loan No. 1 were 500 million won for the loan; (b) the Plaintiff did not expressly agree with Nonparty 1 or 2 before the loan No. 300 million won was paid; and (c) the Plaintiff was 60 million won for the loan No. 1’s repayment of the loan No. 300,000,000 won for the loan No. 30,000,000 won for the loan No. 4 and the loan No. 30,000,000 won for the loan No. 5; (d) the loan No. 300,000 won for the loan No. 6,000,000 won for the loan No. 70,000 won for the loan No. 30,000 won.

C. Sub-committee

(1) Meanwhile, it is reasonable to deem that the Plaintiff was paid all interest or delay damages on each of the above loans at the agreed interest rate until March 27, 2009, and that there was an agreement among the Defendant’s intent to appropriate the above loans for the interest or delay damages on each of the above loans paid by the Defendant up to that point. Accordingly, the Plaintiff calculated the originals of the loans Nos. 1, 2, and 30 million won as of March 27, 2009, and thereafter, calculated the above loans at the order of appropriation.

(2) The Plaintiff is a person who was paid 6,197,260 won as damages for delay according to the agreed interest rate from January 26, 2009 to March 27, 2009, which is the date following the original loan amount of KRW 100 million. Thus, the Plaintiff shall first appropriate the loan amount of KRW 95,625,00 as revised pursuant to the Interest Limitation Act for damages for delay pursuant to the Interest Limitation Act, and shall appropriate the remainder to the above principal first, and then appropriate the remainder to the above principal: 94,22,089 won [=95,625,000 won - 1,402,40 won - 4,794,794,394,95,65,636,65,6365,65,6365,65,6365) x 636,505].

(3) The Plaintiff is a person who received 6,591,780 won from February 25, 2009 to March 27, 2009, the due date for the original loan of 200 million won from February 25, 2009 to March 27, 2009, for delay damages under the agreed interest rate of 6,591,780 won from the Defendant’s side. Accordingly, this shall be applied first to delay damages under the Interest Limitation Act for 189,77,054 won as amended pursuant to the Interest Limitation Act, and the remainder is appropriated for the above principal. The remainder is appropriated for 188,020,689 won [=189,77,054 won} - 1,756,365 won [the above 6,591,780 won - 4,835,415 won] - 187,365 won x 365]

(4) The Plaintiff was paid 8,526,027 won from January 24, 2009 to March 27, 2009, which is the day following the due date for repayment for the original loan of 100 million won, from January 24, 2009 to March 27, 2009. Thus, this shall be applied first to delay damages under the Interest Limitation Act for 98,400,00 won as amended pursuant to the Interest Limitation Act, and the remainder is appropriated for the above principal: 94,969,205 won [=98,40,000 won - 3,430,00 won - 5,027 won - 5,2329,2329,400 won x 98,400,000 won as of March 27, 2009]

(5) According to the order of appropriation as above, 30 million won in this case should be first appropriated to the remaining principal of the loan 1 as of March 27, 2009, and the remainder should be appropriated for the remainder of the loan 2, and if the remainder is appropriated to the remainder of the loan 2, the principal of the loan 7,211,983 won [=9,205 - 17,757,222 won - 300 million won - 94,222,09 - 188,000 interest - 1820,0209 - 68,020,000 interest - 620,000 won - interest 60% of the loan 2,000 won cannot be acknowledged as evidence of the agreement or late payment damages from the non-party 28,000 won to the non-party 36,000 won as of the following day.

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. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

Judges Hwang Jin (Presiding Judge)

(1) Where an obligor has assumed several obligations to the same obligee as the subject matter of the Civil Act concerning the satisfaction of performance, and the offer of performance does not extinguish the entire obligation, the person effecting performance may designate one of the obligations as at the time of performance and apply it to the performance. (2) If the person effecting performance does not designate an obligation as referred to in the preceding paragraph, the person effecting performance may designate one of the obligations as at the time of performance and apply it to the performance: Provided, That this shall not apply where the person effecting performance has immediately made an objection to such appropriation. (3) If the parties to an application for performance under the preceding two have not designated an obligation to be appropriated, the application for performance of obligation shall be governed by the provisions of the following subparagraphs. (1) If the parties to an application for performance have not designated an obligation to be appropriated within the due date, the application shall be made; (2) If the obligor has not yet arrived or all of the obligations are not due, the payment of the obligation shall be made within the order of Article 74; and (1) if the obligor has become aware of the entire obligation and several of the performance.