2013Da88706 Loans

A

C

Seoul Northern District Court Decision 2013Na2243 Decided October 29, 2013

April 23, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Northern District Court.

The grounds of appeal are examined. Even if the issuer of a promissory note was aware of the purpose of using the promissory note as a collateral for a certain specific person’s obligation, such fact may be one of the active factors in finding that the issuer of the promissory note has an intent to bear a civil guarantee liability, and cannot be inferred from such fact that a guarantee contract under the civil law is established between the issuer of the promissory note and the obligee. Furthermore, even if the issuer of the promissory note bears a civil guarantee liability for the obligation which is the cause of the issuance of the promissory note from the obligee’s standpoint, the issuer of the promissory note has the intent to demand the issuer of the promissory note, and the issuer of the promissory note also has issued the promissory note in response to the intent of the obligee’s intent and the content of the obligation, i.e.,,, the delivery of a credit to the issuer of the promissory note in the form of a civil guarantee, between the obligee and the issuer of the promissory note, the motive leading up to the issuance of the promissory note and its method and guarantee contract between the issuer.

citing the reasoning of the judgment of the court of first instance, the court below determined that it is reasonable to view that the defendant prepared and delivered to the plaintiff the power of attorney to prepare each of the instant promissory notes with respect to the respective borrowed money (hereinafter “each of the instant delegations”) to the extent of at least KRW 33 million in total face value, and that the defendant expressed to the plaintiff the intent of the guarantee that the defendant bears the principal and interest of each of the instant borrowed bills (hereinafter “each of the instant delegations”).

However, such determination by the court below is difficult to accept for the following reasons. According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, it is difficult to accept the decision of the court below as above: (a) the joint defendant B (hereinafter referred to as "B") of the court below did not directly contact or negotiate with the plaintiff who is the creditor in the process of borrowing each of the loans from the plaintiff; (b) the plaintiff demanded B to guarantee each of the loans; (c) the plaintiff was issued with seals and certificates of seal necessary to prepare each of the delegations of this case; and (d) the defendant was affixed with seals and certificates of seal affixed to each of the above delegations; (e) the plaintiff was issued with a separate disposal document on May 11, 2010; and (e) the plaintiff was issued with a separate disposal document and a certificate without the defendant's signature or seal affixed to the defendant. In addition, even if the defendant was not aware of the plaintiff as the debtor, the creditor, and even if he did not have any substantial interest in B's money borrowed or issuance of promissory notes, it is difficult to find that the defendant.

Nevertheless, the lower court determined otherwise that the Defendant jointly and severally guaranteed the B’s loan debt. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a civil guarantee agreement with respect to the commission of preparation of a promissory note notarial deed, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

Therefore, without examining the defendant's remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Min Il-young

Chief Justice Park Jong-young

Justices Kim Jae-han