The scope of right of indemnity of a guarantor who has paid an agreed interest exceeding the limit of the Interest Limitation Act.

Even though a surety has paid to the obligee the agreed interest, which exceeds the limit set forth in the Interest Limitation Act, due to his own performance or at other time, and the obligor has obtained a discharge, the surety may not claim reimbursement for the excessive portion.

Article 2 of the Interest Limitation Act, Article 441 of the Civil Code

Supreme Court Decision 4290Da504 Delivered on October 31, 1957 (Supreme Court Decision 4657Da 4657, Article 2 of the Official Gazette Interest Limitation Act, Article 441(1)415 of the Civil Code

Plaintiff

Defendant

Seongbuk-gu Seoul District Court (79Gahap646 delivered on July 1, 200)

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The plaintiff's legal representative shall pay to the plaintiff the amount of 2,250,000 won and the amount of 5% per annum from June 17, 1978 to the date of full payment. The plaintiff's legal representative sought a judgment that the lawsuit shall be borne by the defendant and a judgment of provisional execution.

The agent of plaintiff's lawsuit shall revoke the part against the plaintiff in the original judgment.

The defendant shall pay to the plaintiff 1,934,028 won with 5% interest per annum from June 17, 1978 to the date of full payment.

The court of first and second instances sought a judgment that all the costs of lawsuit will be borne by the defendant and a declaration of provisional execution.

In full view of the contents of evidence No. 1 (Pledge) and the whole purport of the pleading in the testimony of Non-Party 1 by Non-Party 1, the non-party 1, who has no dispute over the establishment, shall be 5,00,000 won for interest, 15% for interest, and 16% for interest on March 7, 1978, respectively, and the time of return shall be determined and lent by the plaintiff on the same day, and the plaintiff guaranteed the obligation to return the borrowed money to the above non-party on the same day, and the plaintiff's failure to pay the above borrowed money to the above non-party on June 7, 198 as the defendant's surety, and the fact that the plaintiff paid the above loan principal amount of KRW 5,00,000 for interest rate of KRW 2,250,000 for interest on the three-month basis, and there is no other counter-proof evidence.

The Plaintiff’s legal representative asserts that the Defendant is entitled to claim reimbursement of KRW 2,250,00 from among the above loans that the Plaintiff repaid on behalf of the Defendant, who is the principal obligor, by exercising the right to demand reimbursement of KRW 2,250,000, which is the interest of KRW 3-month interest, and therefore, the Defendant cannot claim reimbursement in case the obligor voluntarily made payment in excess of the limit stipulated in the Interest Limitation Act on Loan for Use of Money, but the obligee cannot claim the excess portion as the obligee. Therefore, even in case where the obligor is exempted from reimbursement by paying to the obligee the agreed interest exceeding the limit stipulated in the Interest Limitation Act on Payment of Money, etc., it shall be interpreted that the portion in excess of the guarantor’s obligation cannot be claimed. In this case, even in case of this case, the Plaintiff, the guarantor, has paid the interest of KRW 2,250,000,000, which is the interest of KRW 250,000,00 per annum within the limit stipulated in the Interest Limitation Act at the time.

The defendant defense that the defendant paid the principal and interest of the above loan to the non-party 1 during the period from March 1, 1978 to June 6, 1978, the defendant paid 6,070,000 won to the non-party 1, but the testimony of the non-party 2 and the non-party 3 of the trial witness non-party 2 and the non-party 3 cannot be used as a supporting material, and there is no other evidence to acknowledge it. Thus, the defendant's defense for repayment is groundless.

Therefore, the plaintiff's claim of this case is reasonable within the scope of seeking the payment of damages for delay with the rate of five percent per annum from June 17, 1978 to the date of full payment as claimed by the plaintiff, and the remainder of the claim is groundless. Thus, the original judgment is dismissed as it is without merit. The original judgment orders the payment of damages for delay with the rate of 315,972 won exceeding the above amount recognized otherwise, and five percent per annum from June 17, 1978 to the date of full payment, but the defendant did not appeal, so only the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost.

Judges Kim Jin-jin (Presiding Judge)