In cases where an individual or a corporation operating a business does not specify in writing the maximum amount of the debt guaranteed in the course of concluding a guarantee agreement for the debt related to the business it runs, whether the guarantee agreement violates Article 6 of the Special Act on the Protection of the Surety (negative)

Article 1, Article 2 subparagraph 1 (a) and (2), and Article 6 of the Special Act on the Protection of guarantors; Article 2 subparagraph 1 of the Credit Guarantee Fund Act; Article 2 subparagraph 1 of the Credit Guarantee Fund Act

Supreme Court Decision 2013Da64663 Decided November 14, 2013

Plaintiff (Attorney Shin Young-chul, Counsel for the plaintiff-appellant)

Defendant

Changwon District Court Decision 2012Na11284 decided August 14, 2013

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Supreme Court Decision 2013Da64663 Decided November 14, 2013 rendered the following judgments.

Article 6(1) and (2) of the Special Act on the Protection of Guarantors (hereinafter “Surety Protection Act”) provides that the maximum amount of the guaranteed debt shall be specified in writing in a case where a creditor and a principal debtor guarantee the obligation arising from a specific transaction agreement continuously between a creditor and a principal debtor. Article 6(1) and (2) of the Credit Guarantee Fund Act provides that a guarantee contract that does not specify the maximum amount of the debt in writing shall be null and void. However, Article 1 of the Surety Protection Act provides that the purpose is to prevent the economic and mental damage of a guarantor arising from a guarantee made under each subparagraph (a) without any consideration. For this reason, Article 2 subparag. 1(a) and 2 of the Surety Protection Act excludes a guarantee contract subject to the Surety Protection Act (i.e., Article 2 subparag. 1 of the Credit Guarantee Fund Act), and Article 2 subparag. 1 of the Credit Guarantee Fund Act provides that “an enterprise refers to an individual and a corporation

Therefore, if an individual or corporation entered into a guarantee agreement with another person's obligation and the obligation of the other person is related to the business of the other person, the guarantee agreement is not subject to the guarantor protection law, and even if the maximum amount of the guaranteed obligation is not specified in writing, it cannot be deemed null and void pursuant to Article 6 (2) of the

2. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff entered into a contract for the supply of the non-party 1 with the firstman on March 201, 201, and the defendant jointly and severally guaranteed the non-party 1's obligation to pay the non-party 1 for the non-party 1's payment of the non-party 1's payment of the non-party 1's loan for the non-party 1 (hereinafter "the guarantee of this case"). The guarantee of this case is continuously related to the debt incurred, and the contract for the supply of the non-party

However, according to the reasoning of the judgment below and the records, the defendant entered into a construction contract with the construction of the building of this case on the third floor and the third floor area of 100 square meters. The contract includes the use of the building of this case as the "living facilities and studio facilities", and the non-party 2, a construction contractor who executes the construction of the building of this case under the name of the above comprehensive construction, entered into a contract for supply of the building of this case with the plaintiff in order to be supplied with the relocation of the building necessary for the construction. Upon the plaintiff's request of the owner of the building, the defendant made the guarantee of this case. The defendant received the construction price of the construction of this case from the above comprehensive construction after the payment of the construction price of the construction price of this case. The court below rejected the decision of the court below which rejected the defendant's assertion that the construction of this case had not been provided with the guarantee obligation of this case for the purpose of the plaintiff's new construction of the building of this case.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and 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

Justices Park Poe-dae (Presiding Justice)