[1] In a case where the Korea Credit Guarantee Fund re-issues a guarantee agreement by extending the time limit for the guarantee and issues a new guarantee agreement, whether the said guarantee is a security for the existing debt (affirmative)

[2] In the case of so-called renewal guarantee, whether the provision of a standardized contract that limits the term of establishment of the principal obligation pursuant to Article 28 of the Credit Guarantee Fund Act applies (negative)

[3] In a case where a new guarantee is issued by means of a renewed guarantee and a new guarantee is added to the new guarantee requirement that "if the guarantee limit is not sufficient due to the use of the guarantee remaining after deducting the guarantee balance of the certificate of the Gu newsletter, and the loan is implemented after the lapse of 60 days from the date of issuance of the letter of guarantee, the validity of the additional exemption (

[1] In a way that the Korea Credit Guarantee Fund issues a new guarantee term in the past by extending the guarantee term, the former term "the guarantee limit under this letter shall be in operation including the balance of the guarantee under the Gu newsletter." This method of new guarantee is merely a so-called renewal guarantee extending the term of guarantee under the Gu newsletter, and the purport of the phrase written in the column for the special terms of the new guarantee shall be interpreted to mean that the limit of the guarantee obligation of the Korea Credit Guarantee Fund is reduced to the remaining amount of the principal obligation under the existing guarantee, as well as the existing obligation is guaranteed by a new guarantee.

[2] As long as a new guarantee under a new guarantee is deemed to be a renewed guarantee for the extension of the term of guarantee under the existing guarantee form, there is no room to apply the provisions of a standardized contract that limits the term of establishment of a principal obligation under Article 28 of the Credit Guarantee Fund Act to a new guarantee form.

[3] Of the terms and conditions of a credit guarantee agreement which provides for the case where the Credit Guarantee Fund is exempted, Article 17 of the new guarantee agreement provides for the authority to determine the specific scope of exemption to be applied to the matters of exemption stipulated in Article 16 of the terms and conditions, and it does not delegate the authority to newly determine the scope of exemption not stipulated in the terms and conditions to the Credit Guarantee Fund. Thus, the new exemption clause added to the standard of exemption that "if the Credit Guarantee Fund operates the guarantee limit after the lapse of 60 days from the date of issuance of the letter of guarantee that "the guarantee limit is not sufficient due to the reduction of the balance of the certificate of guarantee in the Gu newsletter" that "if the loan is carried out after

[1] Article 28 of the Credit Guarantee Fund Act, Article 105 of the Civil Act / [2] Article 28 of the Credit Guarantee Fund Act, Article 105 of the Civil Act / [3] Article 28 of the Credit Guarantee Fund Act, Article 105 of the Civil

[1] Supreme Court Decision 97Da52121 decided Feb. 11, 2000 (Gong2000Sang, 677)/ [2] Supreme Court Decision 2001Da75431 decided Jun. 28, 2002/ [3] Supreme Court Decision 99Da52121 decided Feb. 11, 2002 (Gong2000Sang, 677)

Industrial Bank of Korea (Law Firm Il, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Korea Credit Guarantee Fund (Attorney Han-soo et al., Counsel for the defendant-appellant)

Seoul District Court Decision 200 1Na61011 delivered on August 28, 2002

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

1. The facts acknowledged by the court below are as follows.

A. On May 19, 199, Young Chang-gu Co., Ltd. entered into a credit guarantee agreement with the Defendant on May 18, 200, with the guarantee amount of KRW 20 million, the guarantee period of KRW 18,00,00, and the guarantee period of KRW 20,000,000, and the guarantee period of KRW 18,000,000,000,000,000,000,000,000,0000,000,0000,0000,000).

B. Chang Chang-gu Co., Ltd. entered into a credit transaction additional agreement between the Plaintiff on May 27, 199 to January 31, 200 and extended the transaction period of the above credit transaction agreement to May 18, 2001 with the Plaintiff on the condition that the Plaintiff was given money more than three times from May 27, 199 to repayment of part of the debt amounting to approximately KRW 19.44,00 from January 31, 200. Accordingly, the Young-gu Co., Ltd. entered into a credit guarantee agreement with the Defendant on May 18, 200 by extending the transaction period of the above credit transaction agreement to May 18, 200.

C. On July 3, 200, Young Chang-gu Co., Ltd. fully repaid the loans under the above credit transaction agreement, and thereafter, on August 24, 2000, borrowed approximately KRW 19970,00 from the Plaintiff at the discount of bill (hereinafter referred to as the “instant loan”) but lost the benefit of time due to the payment of the bill at maturity.

(d) A credit guarantee certificate issued in accordance with a new guarantee shall be as follows: "1. It shall be operated in accordance with the new guarantee agreement until the balance of the principal obligation to be guaranteed by the Credit Guarantee Fund is repaid in accordance with the Gu newsletter until the balance of the principal obligation to be guaranteed by the Credit Guarantee Fund is redeemed; 2. It shall be liable for the separate loan incurred prior to the date of issuance of the letter of guarantee as provided in the Gu newsletter." On the back, the terms and conditions of this guarantee shall be established only where the creditor executes one or more separate loans in compliance with the terms and conditions of the credit guarantee within 60 days from the date of issuance of the letter of guarantee as stated on the front (Article 3(1)); "When the loan is executed in violation of Article 3, it shall not be liable for all or part of the guaranteed obligation (Article 16 subparag. 4); and "the Fund shall determine the scope of exemption and provide that the Fund shall separately notify the Plaintiff of the amount of exemption within 60 days after the date of issuance of the loan certificate (Article 17).4).

2. The judgment of the court below

The lower court determined that: (a) a new guarantee is not established when the first new guarantee under the new guarantee is made on August 24, 200, which was 60 days after the issuance date of the new guarantee, using the form of a new guarantee to issue a new guarantee with a limit of 90% of the old guarantee; (b) a new guarantee is clearly distinguishable from a simple extension of the term of guarantee and its form; and (c) the new guarantee term Article 3(1) of the new guarantee term is interpreted as a new guarantee term by changing the terms and conditions of the new guarantee term from May 18, 200 to the expiration date of 60 days after the issuance date of the new guarantee term to the Plaintiff; and (c) the new guarantee term cannot be deemed as a new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new guarantee term’s new.

3. The judgment of this Court

According to Article 28 of the Credit Guarantee Fund Act, when the Credit Guarantee Fund has decided to provide a credit guarantee to an enterprise, it shall notify such effect to the relevant enterprise and any prospective creditor of such enterprise, and the credit guarantee relationship shall be established at the time the principal obligation and obligation between the enterprise and its creditor is established, and if the principal obligation and obligation is not established within 60 days from the date of such notification, the relationship shall not be established. The Credit Guarantee Fund shall, in accordance with the provisions of such Act, issue a letter of credit guarantee stating the purport that "a credit guarantee relationship shall be established when the creditor executes one or more separate loans in conformity with the conditions of credit guarantee within 60 days from the date of issuance of the certificate

However, in a way that the Korea Credit Guarantee Fund issues a new guarantee term, the previous term of guarantee, stating in its special agreement the phrase "the guarantee limit under this letter shall be in operation including the balance of guarantee under the Gu newsletter." This court determined that the new guarantee term is merely the so-called renewal guarantee extending the term of guarantee under the Gu newsletter, and that the phrase in the column for the special agreement on the new guarantee term should be interpreted to mean that the defendant's guarantee term is less than the remaining amount of the principal obligation under the existing guarantee, as well as that the existing guarantee term is guaranteed by a new guarantee term (see Supreme Court Decisions 9Da23081, May 9, 1995 and 9Da52121, Feb. 11, 2000). Further, the court determined that the new guarantee term and the new guarantee term under the previous special agreement were modified to the effect that the new guarantee term is extended to the extent that the new guarantee term and the new guarantee term is not extended to the new guarantee term under the previous special agreement to the effect that the new guarantee term is modified.

On the other hand, Article 17 of the new guarantee agreement of this case among the terms and conditions of a credit guarantee agreement which provides for the case where the Korea Credit Guarantee Fund is exempted, only stipulates that the authority to determine the specific scope of exemption to be applied to the items of exemption stipulated in Article 16 of the said terms and conditions shall be delegated to the defendant, and it does not stipulate any delegation of the authority to newly determine the matters of exemption not stipulated in the terms and conditions. Thus, even if the defendant added new exemption clauses that "if a loan is implemented after the lapse of 60 days from the date of issuance of the letter of guarantee because there is no time to limit the guarantee amount due to the reduction of the balance of the guarantee amount," the addition of such exemption clauses exceeds the scope of delegation of the terms and conditions, and thus it is not effective to detain the parties (see Supreme Court Decisions 9Da52121, Feb. 11, 200; 201Da75431, Jun. 28, 2002).

Therefore, in this case, Article 3 (1) of the Terms and Conditions of the new guarantee is not applicable to the new guarantee, and the standard for exemption under Articles 4-1 and 4-2 of the Terms and Conditions of the new guarantee that the Defendant notified the Plaintiff pursuant to Article 17 of the Terms and Conditions of the new guarantee shall not be binding on the parties. However, the court below held that Article 3 (1) of the Terms and Conditions shall be liable for the guarantee in accordance with the Gu's certificate and the credit guarantee relationship under the new guarantee shall be established only where the loan was executed within 60 days from the date of issuance of the new guarantee certificate, on the premise that the standard for exemption under Articles 3 (1) of the Terms and Conditions shall also be applied to the new guarantee and the standard for exemption under Article 3 (2) of the Terms and Conditions of the Credit Guarantee Fund Act shall also be valid. Accordingly, the grounds for appeal pointing this out shall be justified.

4. Conclusion

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below.

Justices Zwon (Presiding Justice)