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(영문) 서울고등법원 2018.08.22 2017나2074413
계약이행보증금 청구의 소
Text

1. The plaintiff's appeal and the claims added by this court are all dismissed.

2. The costs of the lawsuit after the appeal are filed.

Reasons

1. The basic facts;

2. The reasoning for this part of the judgment regarding the primary claim is as follows, and the reasoning for the judgment of the court of first instance is the same as that for the judgment of the court of first instance, except for the determination as to the argument that is dismissed or additionally made in the trial as follows. A. The content thereof is cited pursuant to the main sentence of Article 4

From 10th to 11th 3th 10th 10th 10th 3th 10th 10th 10th 206.

Even if the extinctive prescription of a guaranteed obligation is not completed due to suspension of the extinctive prescription, in cases where the extinctive prescription of the principal obligation is completed, the principal obligation is extinguished due to the completion of the extinctive prescription, and thus, the guaranteed obligation also ceases naturally to exist

However, in exceptional circumstances where there are special circumstances to deny the subsidiary nature of the guaranteed obligation, the surety cannot claim the extinguishment of the guaranteed obligation on account of the lapse of the prescription period of the principal obligation (see, e.g., Supreme Court Decision 2010Da51192, Jul. 12, 2012). However, in order to deny the subsidiary nature that falls under the essential nature of the guaranteed obligation by recognizing special circumstances, the surety has expressed his/her intent to perform the guaranteed obligation, or agreed with the obligee, notwithstanding the lapse of the prescription period of the principal obligation. However, the subsidiary nature of the guaranteed obligation cannot be denied solely on the ground that the surety provided a cause for the extinction of the

(See Supreme Court Decision 2016Da211620 Decided May 15, 2018). In light of such legal doctrine, the above circumstances and the evidence presented by the Plaintiff in this case alone cannot deny the subsidiary nature of the guaranteed obligation. Furthermore, it is insufficient to recognize that there are special circumstances to deny the subsidiary nature of the guaranteed obligation, such as the Defendant expressed his intent to perform the guaranteed obligation despite the lapse of the prescription period of the principal obligation or agreed with the Plaintiff.

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