[1] In a case where the parties of the existing claim and obligation agree to make the subject matter the object of a loan for consumption, the standard for determining whether such agreement is a pit individual or quasi-loan for consumption

[2] The case reversing the judgment of the court below which held that, although there is room to regard a new general loan to obtain the effect of extending the payment period of the existing export bill loan as a quasi-loan for consumption, the joint and several guarantee of the export bill loan's loan's debt extends to the general loan's debt

[1] Where a party to an existing claim or obligation agrees to regard the object as a loan for consumption or a quasi-loan for consumption, whether such agreement shall be deemed as a modification or quasi-loan for consumption is determined first by the party’s intent. If the party’s intent is not clear, it is an issue of interpretation of intent. As such, it cannot be deemed as a quasi-loan for consumption, in general, that it is a quasi-loan for consumption inasmuch as an obligee lost its security and expressed his/her intent to cause disadvantage as the obligor loses its defense by losing its identity with the existing obligation. However, if the nature of new obligation is not a loan for consumption or it is not identical to the existing obligation, it shall not

[2] The case reversing the judgment of the court below that, even if a financial institution and an enterprise have made a general loan in order to obtain the effect of extending the due date for export bill loans in substance and economically between the financial institution and the enterprise, the extension of due date was prohibited in principle for export bill loans under the provisions of the former Banking Act (amended by Act No. 3608 of Dec. 31, 1982) at the time of the issuance of export bill loans, and since export support finance and general loan have different conditions such as interest rate and due date, it is general that the above general loan is not a quasi-loan, but a quasi-loan is not a quasi-loan.

[1] Articles 105, 500, and 605 of the Civil Act / [2] Articles 428, 500, and 605 of the Civil Act

[1] Supreme Court Decision 89Meu2957 delivered on June 27, 1989 (Gong1989, 1159), Supreme Court Decision 2002Da31803, 31810 delivered on September 26, 2003 (Gong2003Ha, 2067) / [2] Supreme Court Decision 88Meu20576 delivered on January 15, 1991 (Gong191, 732), Supreme Court Decision 91Da24281 delivered on December 10, 191 (Gong192, 484)

Korean Bank, Inc.

Korea Finance Specialized Company (Law Firm KEL, Attorneys Lee Hyeong-soo et al., Counsel for the defendant-appellant)

Defendant 1 and 11 others (Attorney Seo-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na51724 delivered on June 15, 2004

The part of the lower judgment against Defendants 1, 5, 7, 8, 9, 10, 11, and 12 is reversed, and that part of the case is remanded to the Seoul High Court. Each appeal by Defendants 2, 3, 4, and 6 is dismissed. The costs of appeal by Defendants 2, 3, 4, and 6 are assessed against the same Defendants.

1. Determination on each of the grounds of appeal by Defendants 1, 5, 7, 8, 9, 10, 11, and 12

A. According to the judgment of the court below, the court below held that, around January 19, 1980, Korea-Japan Bank Co., Ltd. (hereinafter referred to as "Korea-Japan Bank") had a claim of USD 1,546,805 in the balance of the bill of exchange against Samsung Co., Ltd. (hereinafter referred to as "Korea-Japan"), and that, on July 11, 1980, Samsung Bank entered into a bank transaction agreement with the purport of discharging all obligations arising from the current and future transaction of bills with the Korea-Japan Bank, and it did not lend KRW 1,052,291,41 as a joint and several surety loan obligation of the above export bill loan to Korea-Japan Bank, and that it still did not discharge the above joint and several surety loan obligation of Korea-Japan Bank as part of its heir's debt guaranteed by the above export bill loan of Korea-Japan Co., Ltd., Ltd., which continued to exist between the above five other banks and the above general trust loan of Korea-Japan Bank as part of the above general trust loan of Korea-Japan loan of 16.

B. However, we cannot accept the judgment of the court below.

A rehabilitation or quasi-loan for consumption is identical to that of a contract extinguishing an existing debt and establishing a new debt, but there is no distinction between the existing debt and the new debt in case of a quasi-loan for consumption. However, in case of a quasi-loan for consumption, it is recognized as identical in principle. If the parties to an existing credit or debt have agreed to regard the object as a rehabilitation or quasi-loan for consumption, the first issue is the interpretation of intention if the parties' intent is determined by the parties' intention, and if the parties' intention is not clear, it cannot be viewed as a quasi-loan for consumption, unless there is any special circumstance, that the creditor lost its security and the debtor expressed his intent to disadvantage himself as if the parties lose their right of defense. However, it cannot be viewed as a quasi-loan for consumption if the nature of the new debt is not a loan for consumption or it is not identical to the existing debt (see, e.g., Supreme Court Decisions 89Meu2957, Jun. 27, 198; 203Da318238, Sep. 18, 2003).

In this case, even if a general loan was made in order to obtain the effect of extending the due date for export bills loans in reality and economically, it was prohibited to extend the due date for export bills loans in principle under the provisions of the former Banking Act (amended by Act No. 3608 of Dec. 31, 1982), etc. which was enforced at the time of the issuance of export bills loans. However, export support finance and general loan are generally different from the terms of interest rate or due date. Thus, it is reasonable to view that the Korea Bank's new loan was made to Samsung as the extension of due date for the above export bills loans not corresponding to the quasi-loan loan but as the extension of due date for the above export bills loans. Therefore, barring any special circumstance that the deceased or his/her heir guaranteed the above export bills loans on the same condition as for the export bills loans, the effect of the joint and several guarantee loans on the above export bills does not extend to the above general loan obligations (see, e.g., Supreme Court Decision 198Da16084, Dec. 15, 1988).

Nevertheless, the court below acknowledged the defendants' liability of guarantee on the ground that the above general loan was made, the contents of regulations including the time of the above general loan, whether the extension of the due date is prohibited, the difference between the interest rate or the due date of the export support loan and the general loan, and the existence of special circumstances, which can be deemed as guaranteed under the same conditions, which the above Defendants, the deceased or their property heir, were guaranteed under the same conditions, even in case of the above general loan which is not export support loan, the court below acknowledged the defendants' liability of guarantee on the condition that the above Defendants' general loan for trilization of the trilization of the above general loan was a loan for export bill loan. The court below erred by misapprehending the legal principles on trilation and by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

2. Determination on each of the appeals by Defendants 2, 3, 4, and 6

The appeal filed by the above Defendants did not state the grounds of appeal, and did not submit the grounds of appeal within the statutory period, and there is no reason to investigate ex officio the judgment below.

3. Therefore, the part of the judgment below against Defendants 1, 5, 7, 8, 9, 10, 11, and 12 among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. Each appeal by Defendants 2, 3, 4, and 6 is dismissed in accordance with Article 429 of the Civil Procedure Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)