A. The case holding that the decision of the court below ordering the defendant to pay more money than the first instance court's judgment is in violation of the principle of prohibition of disadvantageous alteration, and that the difference portion is included in the judgment of the court of first instance that the plaintiff's remaining claims are dismissed, and the decision of the court below is ordered only to

B. Whether a creditor's exemption of debt against a joint and several surety has effect on the principal obligor (negative)

(c) Whether the effect of debt exemption granted to one of the joint and several suretiess by a creditor has on other joint and several sureties;

D. Whether Article 419 of the Civil Act is a voluntary provision (affirmative)

(e) The starting point of counting the right of advance reimbursement of the trustee guarantor and the extinctive prescription;

A. The case holding that the court below ordered the defendant to pay more money than the amount ordered by the court of first instance without filing an appeal against the judgment of the court of first instance, on the ground that the difference part is included in the judgment of the court of first instance that the plaintiff's remaining claims are dismissed, and the decision of the court below is dismissed and the decision of the court below is dismissed.

B. Even if a joint and several surety is a surety, the provision of Article 419 of the Civil Code, which provides for the absolute effect of the exemption for a joint and several obligation, does not apply between the principal obligor and the surety, and even if the obligee has fully or partially exempted the obligation to the joint and several surety, the effect of the exemption does not extend to the principal obligor.

(c) Where there are two or more joint and several sureties, unless otherwise stipulated in the joint and several sureties, the creditor is exempted from all or part of the debt to one joint and several sureties, but it shall not extend to other joint and several sureties.

D. The provision of Article 419 of the Civil Act is a voluntary provision. Thus, the obligee is entitled to be exempted from liability only for one of the obligors by avoiding the application of the above provision through expression of intent, etc.

E. The right to prior reimbursement and the right to follow-up reimbursement of the trustee guarantor have common nature that share the ultimate purpose and social utility. However, the right to follow-up reimbursement is arising from the fact that the guarantor extinguished his/her obligation with his/her contribution, such as reimbursement on behalf of the debtor, and the prior right to follow-up reimbursement is a separate independent right that differs from the cause of occurrence, such as occurrence of certain facts prescribed by Article 442(1) of the Civil Act, and differs from the legal nature. Therefore, the extinctive prescription is run separately, regardless of whether the prior right to follow-up reimbursement has occurred or not.

A. Articles 385 and 406(b) of the Civil Procedure Act. D. Article 419 of the Civil Act. Articles 441, 442, and 166 of the Civil Act

A. Supreme Court Decision 66Da2633 delivered on February 28, 1967 (No. 15 ① citizen204). 80Da2699 delivered on October 6, 1981 (Gong1981, 14432) 80Da2967 delivered on January 12, 1982

Attorney Lee Young-chul, Counsel for the defendant-appellant

Defendant 1 and one other

Seoul High Court Decision 91Na5558 delivered on September 3, 1991

Of the part of the judgment below against the defendants, the amount of KRW 3,475,00 for the plaintiff's subrogated amount of KRW 1,390,00 for the plaintiff's subrogated amount of KRW 3,475,00 for May 28, 198 and KRW 2,085,00 for KRW 2,00 for each year from June 26, 198, and from June 10, 1989 to the date of full payment, the amount of KRW 45,650 for the self-payment by subrogation of August 6, 1985 and the amount of KRW 19 percent for each year from August 6, 1985 to the date of full payment.

The defendants' remaining appeals are dismissed.

The costs of appeal shall be ten minutes, which are assessed against the plaintiff, and the remainder shall be assessed against the defendants.

The Defendants’ grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are as follows.

1. According to the judgment of the court of first instance, on May 28, 1985, the plaintiff paid 21,708,767 won by subrogation for the point of non-party 10,50 won for the point of non-party 10,50 won for the damages of non-party 2, 1985, 21,500 won for the damages of non-party 2, 198, 205 won for the amount of subrogated for the point of non-party 2, 196, 205 won for the amount of 24,136, 511 won for the point of non-party 10, 198, 305 won for the amount of subrogated for the point of non-party 2, 50 won for the amount of damages of non-party 2,50 won for the amount of subrogated for the point of non-party 10,500 won for the period of 18.5 won for the amount of subrogated for the above point of non-party 185 won

With respect to the above judgment of the court of first instance, the defendants (as well as Co-Defendant 3 of the court of first instance), filed an appeal against the part against which they lost, and the plaintiff did not file an appeal. However, with respect to the above amount of KRW 21,708,767 on the original branch of the Seoul Trust Bank, the court below recognized and deducted the payment of KRW 11,312,885 on June 21, 1991 after the date of the judgment of the court of first instance, and did not recognize the fact that the amount of KRW 1,390,00 on June 25, 198 as recognized by the court of first instance and the amount of KRW 2,085,00 on June 9, 198 and the amount of KRW 2,085,00 on June 9, 198 as well as the amount of KRW 3,475,000 on June 1, 198.

In addition, the court of first instance recognized that the amount of subrogation for the original point of the Plaintiff’s non-party citizen bank was KRW 24,136,511 (the Plaintiff did not recognize KRW 127,210 per bonds), the amount of KRW 20,608,071 on October 18, 1985 was repaid, and the amount of KRW 3,610,000 on June 25, 198 was repaid, and the amount of subrogated principal was fully repaid and the amount of KRW 81,560 remains, but the court below determined that the amount of subrogation was 24,263,721 on the aggregate of the above amount paid as principal, which was higher than the first instance court recognized, the amount was 20,608,071 won and the amount of KRW 3,610,000 on the principal after deducting the paid amount from KRW 3,650 on the principal,650 on the basis of the annual rate of KRW 15,581,0000.

Ultimately, the lower court erred by misapprehending the legal doctrine under Article 385 of the Civil Procedure Act regarding the scope of the appellate trial, thereby adversely recognizing the Defendants to be more unfavorable than that recognized by the first instance court. The grounds for arguments are with merit.

2. The court below rejected the Defendants’ assertion on the ground that the non-party national bank received the amount equivalent to the maximum debt amount, including the loan amount of the non-party 1, in the voluntary auction procedure for the real estate owned by the defendant 2, as well as there is no evidence to deem that the non-party 2 was acting as an institution entrusted with the Plaintiff’s business, and there is no other evidence to prove that the plaintiff received the duplicate credit. This is just and it cannot be deemed that there was an error in violation of the rules of evidence, such as the theory of lawsuit, and it is also justified

3. The court below found, based on its evidence, that the plaintiff received 12,572,890 won as the principal and interest of the claim for indemnity on June 21, 191 from the co-defendant 3 of the court of first instance (the designated parties in the original trial) and exempted the remainder of the non-party's guarantee obligation. The court below held that even if the plaintiff exempted part of the guarantee obligation against the guarantor, it does not affect the principal obligor. Article 419 of the Civil Code is a voluntary provision and Article 419 of the Civil Code provides that the plaintiff's intent shall take precedence over the above provision. However, the plaintiff's claim against the co-defendant 3 of the court of first instance is only limited to the debtor individually exempted, and the plaintiff received only the repayment under the agreement and its delay damages and exempted the remainder of the guarantee obligation, and the effect of the exemption shall not extend to

Even if a joint and several surety is a guarantor, the provisions of Article 419 of the Civil Act, which provides for the absolute effect of exemption of joint and several liability, shall not apply between the principal obligor and the guarantor. Thus, even if the creditor has fully or partially exempted the obligation to the joint and several surety, the effect of exemption shall not extend to the principal obligor, and if there are several joint and several guarantors, the effect of exemption shall not extend to the other joint and several surety even if the creditor has exempted the whole or part of the obligation to the one of the joint and several surety unless there is a special agreement between them.

Therefore, the effect of partial exemption of the Plaintiff’s guaranteed obligation to Co-Defendant 3 of the first instance trial shall not extend to Defendant 2, the guarantor of the instant case, even though the Plaintiff was exempted from the obligation without any special declaration of intention that the exemption is limited to the above Nonparty. In addition, Article 419 of the Civil Act provides that the effect of partial exemption of the obligation shall not extend to Defendant 2, the guarantor of the instant case. Since Article 419 of the Civil Act is a voluntary provision, the obligee may be exempted from the obligation to one of the obligors by excluding the above provision from the application of the above provision due to his declaration of intention, etc. Accordingly, according to the records acknowledged by the lower court, it can be known that the Plaintiff, as recognized by the lower court, clearly exempted the obligation to be exempted from the guaranteed obligation only in the case where the joint Defendant 3 of the first instance trial

Since the above judgment of the court below is acceptable, there is no violation of the rules of evidence or misapprehension of the legal principle, such as the theory of lawsuit.

4. The right to prior reimbursement and the right to follow-up reimbursement of a trustee guarantor have common nature that share the ultimate purpose and social utility. However, the right to follow-up reimbursement is arising from the fact that the guarantor extinguished his/her obligation with his/her contribution, such as reimbursement on behalf of the debtor, and the prior right to follow-up reimbursement is a separate independent right that differs from the cause of occurrence and differs from the legal nature of the cause. Therefore, the extinctive prescription of the right to follow-up reimbursement is separate. Therefore, regardless of whether the prior right to follow-up reimbursement occurred or not, the extinctive prescription of the right to follow-up reimbursement is run from the time when the right to follow-up reimbursement itself occurs and it can be exercised (see Supreme Court Decision 80Da2699, Oct. 6, 1981; 80Da2967, Jan. 12, 1982).

In the same purport, the court below rejected the Defendants’ assertion on the ground that the period of prescription of the Plaintiff’s claim for indemnity of this case was expired from May 28, 1985 and August 6 of the same year, which was subrogated by the Plaintiff, and that the lawsuit of this case was filed on May 18, 190 before five years have passed since the period of prescription was five years, which was just and not erroneous in the misapprehension of legal principles, such as the theory of lawsuit.

There is no reason to discuss this issue.

5. As above, the part of the judgment of the court below against the defendants of 3,475,00 won and 1,390,000 won for the plaintiff's subrogation payment of 3,475,00 won and 1,390,000 won for the plaintiff's subrogation payment of 1,39,000 won from June 26, 198, and 2,085,000 won shall be subject to the ratio of 19% per annum from June 10, 1989 to the date of full payment, and 45,650 won for the self-payment of 19% per annum from August 6, 1985 to the date of full payment of 19% per annum (this part of the judgment below is dismissed because it is included in the part of the judgment of the court of first instance as to the remainder of the plaintiff's appeal, and it is so dismissed as per Disposition by the assent of all Justices who reviewed the appeal by Article 92 of the Civil Procedure Act.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho