2018Da266907 Lawsuits for demanding security deposit

A Stock Company

Law Firm Democratic, Attorneys Cho Yong-seok, et al., Counsel for the defendant-appellant-appellant

B Partnership

Law Firm Tae-il, Attorneys Lee Jong-soo et al.

Seoul High Court Decision 2018Na2015527 Decided August 14, 2018

January 17, 2019

The part of the lower judgment against the Defendant regarding the claim for deposit under the first guarantee contract as indicated in its judgment is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to ground of appeal No. 1 (as to the first guarantee contract at the market)

A. According to the reasoning of the judgment below and the records, Article 5(1) of the instant guarantee contract incorporated into a guarantee contract of the first guarantee contract of this case provides that "If the guarantee creditor has entered into an annual contract with the guarantee creditor and the ordering person is able to have the guarantee creditor refunded or be refunded the contract deposit due to performance or completion of the annual contract, the debtor shall return the contract bond for the contract amount that has been performed and completed." Paragraph (2) of the same Article provides that "the partnership shall not be liable to guarantee the contract bond that the guarantee creditor shall return to the debtor pursuant to paragraph (1)." On the first guarantee contract of the first guarantee contract issued by the defendant by the Co., Ltd. (hereinafter referred to as "C") and delivered to the plaintiff, the guarantee creditor shall be 0% of the total contract amount, the contract amount, the contract name, the guarantee period, the contractor, etc. of the first guarantee contract of this case shall be 10% of the total long-term continuing construction contract of this case, and the contract amount shall be 10% of the total contract amount which is completed.

B. The lower court rejected the Defendant’s assertion that, in order to apply Article 5 of the instant guarantee agreement, the Plaintiff is not liable for a guarantee as to KRW 41,129,00 of the contract deposit corresponding to the part performed and completed by C out of the guaranteed amount under the first guarantee agreement, on the ground that, inasmuch as the first contract is not a long-term continuing construction contract, the Plaintiff, who is not a party to the guarantee agreement under the said provision, is not obligated to return the contract deposit to C, and as long as the first contract is not a long-term continuing construction contract, the Plaintiff cannot be deemed as also obligated to return the contract deposit to C pursuant to Article 7(9) of the said contract.

C. However, the scope of the guarantee claim held by the Plaintiff is determined according to the instant guarantee agreement, which forms the content of the first guarantee contract as indicated in the judgment. Article 5 of the instant guarantee agreement is a long-term continuing construction contract concluded between the guarantee creditor and the ordering person, and where the guarantee creditor has received or is able to receive the contract deposit after the performance and completion of annual contracts, the guarantee creditor shall return the contract deposit for the contract amount performed and completed by the debtor to the debtor, and the partnership shall not be liable to guarantee the contract deposit to be returned to the debtor by the guarantee creditor, and it does not provide that the said provision shall apply only to a subcontract between the guarantee creditor and the debtor in addition to the original contract between the guarantee creditor and the ordering person, in addition to the long-term continuing construction contract between the Plaintiff and the debtor. Therefore, the Plaintiff shall not have the guarantee claim against the Defendant as to the contract deposit as to

D. Nevertheless, the lower court rejected the Defendant’s assertion solely on the grounds as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the terms and conditions of guarantee, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

2. As to the grounds of appeal Nos. 2 and 3 (as to the second guarantee contract in the market)

For the reasons indicated in its holding, the lower court rejected all of the Defendant’s claim for revocation or exemption on the ground that it is difficult to view that C, at the time of concluding the second guarantee contract as indicated in its holding, had deceiving the Defendant, such as not notifying or not notifying the Defendant of the material fact that C should notify at the time of signing the second guarantee contract, and even if C, it is difficult to deem that the Plaintiff knew or could have known it, and it was difficult to recognize that the cause for rescission had already occurred as to the second guarantee contract as indicated in its holding at the time of issuing the contract guarantee certificate under the second guarantee contract as indicated in its holding. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of

3. Conclusion

Therefore, the part of the judgment below against the defendant as to the claim for deposit under the guarantee contract No. 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-sik, Counsel for the defendant

Justices Cho Jong-hee

Justices Min Min-young

A person shall be appointed.