(a) Scope of guarantee obligations borne by the guarantor of the contractor on the contract for construction works;

(b) Cases not constituting a creditor's breach of duty to preserve security;

A. The obligation to guarantee the contractor’s guarantor under the construction contract extends to the obligation to return the advance payment that the contractor bears to the contractor when the contract is terminated due to the contractor’s default on the obligation of the contractor.

B. In the event of the conclusion of a contract for construction work, even if a contractor did not submit a letter of guarantee, surety insurance policy, national or local bond, or a bank’s payment guarantee to the contractor when the contractor pays an advance payment to the contractor, the security shall not be deemed to fall under the case where the contractor loses or reduces the security by intention or negligence, which

Articles 429 and 485 of the Civil Act

[Plaintiff-Appellant] 71Da1474 decided May 9, 1972 (Non-resident-I Article 429(6) of the Civil Act, Article 429(6) of the Civil Act, Article 1013 house 20 ② 9)

Plaintiff

Defendant corporation

Daegu District Court of First Instance (85 Gohap1174)

1. Revocation of the original judgment;

2. The defendant shall pay to the plaintiff 150,000,000 won with 25% interest per annum from July 19, 1985 to the date of full payment.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The judgment above and the declaration of provisional execution

The above construction contract was concluded with the non-party 1, Gap evidence 2, Eul evidence 6-2, Gap evidence 7-1, Eul evidence 8-1 (this evidence No. 4), Eul evidence No. 2, Eul evidence No. 3, Eul evidence No. 8-2, Eul evidence No. 3, Eul evidence No. 4 and the above construction contract was suspended for 0-1, Eul evidence No. 4, Eul evidence No. 50-1, defendant company's new construction contract was suspended for 0-1, 2 (Evidence and reply), Eul evidence No. 4, Eul evidence No. 50-1, 50-1, 50-1, 50-1, 50-1, 50-1, 1, 6-1 and 6-1, 10-2, 10-1, 30-1, 50-1, 30-1, 10-1, 50-1, 30-1, 50-1, 3

The defendant asserts that the guarantor of the construction contractor is jointly and severally liable for the completion of the construction work when the construction work is interrupted and that the contractor does not guarantee the obligation to return the advance payment to the contractor when the contract for the construction work is rescinded. However, according to the above evidence No. 1, the guarantor of the construction contract can recognize the fact that the guarantor of the construction contract agreed jointly and severally with the parties to the monetary obligation arising out of the party's nonperformance of the contract (Article 4 of the terms of the construction contract). In general, the guarantor of the contract is liable for the performance of the duty to restore the contract when the contract is rescinded

In addition, the Defendant’s payment of advance payment to Nonparty 1 for the above construction contract, despite the contractor’s guarantee, surety insurance policy, government bonds or local bonds, and payment guarantee certificates of the bank, the Plaintiff did not receive such special security from Nonparty 1, and thus, the Defendant, as a matter of course, is exempted from liability due to the loss of such security, to the extent that it is not possible to receive reimbursement due to the obligee’s and the contractor’s failure to pay the advance payment, and the above evidence and evidence No. 10 (Contract Guarantee) and No. 10 (No. 10) were different from that of the above, and the Defendant’s payment of the above advance payment to Nonparty 1 for the above construction contract is not subject to the above construction contract’s warranty obligation under the name of Nonparty 1 and Nonparty 4 (U.S.). In light of the above legal principles, the Defendant’s payment of the above advance payment to Nonparty 1 and Nonparty 1 and the Defendant’s payment guarantee to Nonparty 5 (U.S. 10) were not subject to the above construction contract terms and conditions.

Therefore, the above contract for construction work was lawfully rescinded on July 22, 1985, when the copy of the complaint in this case was delivered to the non-party company due to the non-party company's non-performance of obligation. Thus, the defendant as a joint and several surety of the non-party company is obligated to refund the plaintiff the above advance payment of KRW 150,000,000 as well as damages for delay at the rate of 25% per annum from July 19, 1985 to the date of completion of the suit, which is obvious on the record that the copy of the complaint in this case was delivered to the defendant. Thus, the plaintiff's claim in this case is just and acceptable. Accordingly, the judgment of the court below which dismissed the plaintiff's claim in this conclusion is improper, and the plaintiff's claim in this case shall be revoked, and the burden of litigation costs shall be subject to the application of Articles 95, 96, and 89 of the Civil Procedure Act with respect to the provisional execution, and there are reasonable grounds with respect to the attachment of provisional execution.

Judges Lee Young-young (Presiding Judge)