Whether an executor bears a direct performance obligation in relation to a creditor (negative) / Whether an executor approves a debtor’s obligation against a creditor, which is the cause of interruption of prescription (negative in principle)

The term “performance acceptance” means an agreement that an underwriter agrees to repay an obligation to a creditor according to a contract between an obligor and an underwriter. In such cases, an underwriter is obligated to discharge an obligation to the obligee by repaying the obligor’s obligation, but does not directly assume the obligation in relation to the obligee. Meanwhile, the approval of an obligation, which is the cause of interruption of the extinctive prescription, may only be granted to the parties or agents who receive the prescription benefit, and even if the performance underwriter approves the obligor’s obligation to the obligee,

Articles 168 and 454 of the Civil Act

Seoul Mutual Savings Bank’s bankruptcy trustee (Law Firm Grandmark, Attorneys Yoon Gyeong-chul et al., Counsel for the bankruptcy trustee-appellant)

[Defendant Appellant] Defendant 1 (Appointed Party) (Attorney Kim Jong-ho, Counsel for defendant-appellant)

Seoul Central District Court Decision 2015Na23337 decided September 1, 2015

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

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

1. According to the reasoning of the judgment below, when the non-party who purchased the commercial building of this case from the defendant receives a loan from the Seoul Mutual Savings Bank (hereinafter referred to as the "Seoul Mutual Savings Bank"), for the payment of intermediate payment, the defendant jointly and severally guaranteed the loan, and the interest on the loan (hereinafter referred to as the "loan of this case") is agreed to be borne by the defendant. ② After that, the defendant and the non-party agreed upon the cancellation of the above commercial building sales contract, they are liable to the defendant for the loan of this case. ③ The defendant paid the interest on the loan of this case by March 30, 2010 when extending the maturity of the loan of this case even after the above termination of the agreement, and ④ After that, after being declared bankrupt by the Seoul Mutual Savings Bank, the plaintiff was appointed as

Based on the aforementioned factual basis, the lower court determined that the statute of limitations of the instant loan was interrupted due to the foregoing debt approval, since the instant lawsuit was filed on September 1, 2005, which was the due date for the payment of the instant loan, on May 30, 2014 when five years elapsed since the due date for the payment of the instant loan, and thus, the period of extinctive prescription expired. However, the Defendant agreed on the rescission of the instant sales contract with the Nonparty around June 2006, and agreed on the acceptance of the instant loan obligations from the liability as a joint and several surety, and the Plaintiff agreed on the acceptance of the instant loan obligations as a joint and several surety. Since it is reasonable to view that the Defendant, as the performance underwriter’s position, paid the interest and approved the instant loan obligations even after June 206.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The term “performance acceptance” means that an underwriter agrees to repay a debt to an obligee under a contract between the obligor and an underwriter. In this case, an underwriter is obligated to discharge a debt to the obligee by repaying the debtor’s obligation, but does not directly assume the obligation in relation to the obligee. Meanwhile, the approval of the debt, which is the cause of interruption of the extinctive prescription, can only be granted to the party who is entitled to receive the prescription benefit or his/her agent. Thus, even if the performance underwriter approves the debtor’s debt to the obligee,

B. Examining the aforementioned facts in light of the legal principles as seen earlier, the Nonparty, as the principal obligor, did not deviate from the obligation of the instant loan, and under the circumstance at the time of the agreement, there is no special circumstance that the Defendant, in addition to the obligation of the joint and several surety in relation to the creditor, agreed to additionally have the status of the performance underwriter by adding the obligation of the joint and several surety. Therefore, considering the fact that the Defendant was liable for the interest on the instant loan and the maturity was extended upon the Defendant’s request and the Defendant was in the status of the business entity promoting the new commercial building construction, the agreement that the Defendant agreed to assume the responsibility for the instant loan upon the rescission of the sales contract with the Nonparty is merely arranging the responsible relationship between the Nonparty and the two parties following the cancellation of the sales contract, and it is difficult to view that the obligor was to take over the principal obligation in relation to the creditor. In addition, even if the obligor did not have been a party or agent entitled to the benefit of prescription in relation to the creditor, even if

C. Nevertheless, the lower court rejected the Defendant’s defense of extinctive prescription by deeming that the instant lawsuit was filed before five years elapse from March 30, 2010, which was the date following the Defendant’s final payment of interest. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of a juristic act and the status of the performance underwriter, and the grounds for suspending extinctive prescription, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal by the assent of all participating Justices, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Kwon Soon-il (Presiding Justice)