(영문) 서울고등법원 2011. 2. 24. 선고 2010나60570 판결

A. Defendant 3, the party taking over the lawsuit of the Nonparty, is entitled to pay 50 million won, jointly and severally with Defendant 1 and Defendant 2, and 20% interest per annum from October 15, 2009 to the day of full payment.

B. The plaintiff's remaining claims against the defendant 3, the non-party's taking over the lawsuit, are dismissed.

2. All appeals filed by Defendants 1 and 2 are dismissed.

3. The costs of appeal by the Defendants 1 and 2 shall be borne by the said Defendants, and the total costs of appeal arising between the Plaintiff and Defendant 3, the Nonparty’s party to the lawsuit, shall be borne within the scope of the property inherited by the said Defendant 3 from the Nonparty.

4. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The Defendants jointly and severally pay to the Plaintiff KRW 500,000,000 and the amount equivalent to 20% per annum from the day following the submission of the Defendants’ written objection to the instant payment order to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

Reasons

1. Basic facts

The following facts are recognized if there is no dispute between the parties, or if the whole purport of the pleadings is added to the statements in Gap evidence 1 to 15 (including the branches number), Eul evidence 1 to 4, 6, 7, 15, and 18.

[1]

○ The Plaintiff is a company with the objective of acquiring, managing, and operating the investment and loans related to Ma&A. Defendant 1 served as the representative director of Boxex Co., Ltd. (hereinafter “ Boxex”) from March 31, 1993. The Nonparty, who was Defendant 2 and the first instance court, was reappointed on April 24, 1994, was in office as a director of Boxex until March 29, 2006, and the Nonparty was Defendant 1’s representative director.

○ The Nonparty, who was the Defendant of the first instance trial (hereinafter “the deceased Nonparty”), died on July 31, 2010, and was the inheritor, and there was Nonparty 2, 3, 4, 5, and 6, the spouse of the Defendant 3 and Nonparty 2, 3, 4, 5, and 6. The above children renounced their inheritance; Defendant 30,000 inherited the instant lawsuit; accordingly, Defendant 30,000 won was taken over (hereinafter “Defendant 1, 2, and the deceased Nonparty”).

[2]

○Tex entered into a credit transaction agreement with the Korea Exchange Bank (hereinafter “Korea Exchange Bank”) with the following terms and conditions:

On June 7, 1999, " June 7, 2000 for extended period of June 7, 200 on June 25, 1998, the agreed amount as the agreed date of the credit transaction agreement in the table contained in the main sentence, and " June 7, 2000 for extended period of June 7, 200 on June 200 for the period of June 7, 2000" on June 4, 2001 " June 7, 2001 on June 7, 2000" on June 5, 2002 on June 7, 2005 " June 6, 2002 on June 7, 2002 on June 6, 2003" on June 18, 2003 " June 30, 2003 on June 30, 204".

On June 2, 1999, June 2, 1999: US$ 500,000; and on December 7, 1999, US$ 500,000; and on December 7, 1999, US$ 1,500,000; on December 7, 199; on December 7, 199, US$ 300,000; on June 7, 2009, US$ 4 June 7, 2000; on June 3, 2000; on June 7, 2000, US$ 50,000; on June 7, 2000; on June 6, 2007, the amount on June 207, 2008; and on June 207, 200.

On June 10, 1998, 199.6. 2,90,000,000 won on June 7, 2009, June 11, 2009, "new on June 7, 2000 (ju 1) 31, 20099, " June 7, 2000, extended on June 7, 2000 on June 7, 200, "on June 5, 2001, " on June 7, 2005 on June 7, 2005 on June 28, 2001" used on June 6, 2006 as " June 7, 2007 June 207, 2006".

Note 1) New

On October 30, 2001, " October 30, 2001, extended on October 30, 2002, extended on October 30, 2002, 300. 4 October 30, 2003, extended on October 30, 2003, extended on October 30, 200, the agreed amount as the agreed date of the credit transaction contract in the table contained in the main sentence.

○ When Defendant 1 entered into a credit transaction agreement with the foreign exchange bank, Defendant 1 entered into a collateral guarantee agreement with Boex on its obligations to the foreign exchange bank.

On November 25, 1998, 198, the ceiling on continuing guarantee within the scope of 0.3rd 20,000 US dollars 650,000 and US$ 650,000 new future transactions on June 2, 2199, the ceiling on continuing guarantee within the scope of 0.4rd 20,000 US dollars 60,60,000 and US$ 2,600,000 for future transactions on June 14, 1999, the ceiling on continuing guarantee within the scope of 0.20,00 US dollars 60,000,000 for future transactions on June 14, 199, the ceiling on continuing guarantee: 0 US$ 60,000 and US$ 2,600,000 for future transactions on June 1, 20, 200 for future transactions on condition of 00.

On November 25, 1998, Defendant 2 and the deceased Nonparty jointly and severally entered into a limited collateral guarantee contract with Boex’s trade financial transactions with Boex’s foreign exchange bank, and with the limit of USD 650,000,000, and USD 650,000,00 which are currently and in the future due to import L/C issuance transaction, and with the limit of KRW 650,00,00,00 which are to guarantee the settlement term of the settlement of accounts for the settlement of accounts for the future (hereinafter “instant collateral guarantee contract”).

○ The term of settlement is not stipulated in the instant contract for the settlement term of settlement. In this case, the guarantor may designate the term of settlement for the settlement of settlement of settlement by written notification when three years have elapsed from the date of the guarantee agreement, but the term of settlement shall be 14 days after the date of arrival of the notice, and if it falls short thereof, the term of settlement shall be 14 days from the date of arrival of the notice.”

[3]

On August 24, 2005, the foreign exchange bank transferred the above trade bill loans, the payment guarantee of the import letter of credit, and the bonds listed in the annexed list of transferred bonds (1) based on the corporate purchase loan to Boxex to the specialized company for Blue Asset Securitization, and notified Box of the fact of the transfer of the bonds on August 31, 2005.

On April 30, 2009, a limited liability company specialized in Bluu Asset-backed securitization transferred the bonds listed in the [Attachment 2] List of Transfer Claim(2) among the above loan claims that the Plaintiff acquired from a foreign exchange bank (hereinafter “the instant loan claim”). On May 27, 2009, a limited liability company transferred the bonds to the Plaintiff.

00,000,000 won is much more than the amount relating to the trade bill loans and the payment guarantee for the issuance of the import letter of credit guaranteed by all the Defendants.

2. Judgment on the ground of the Plaintiff’s claim

According to the above facts, unless there are special circumstances, Defendant 1 (joint and several loans), Defendant 2, and the deceased Nonparty (Defendant 2 and the deceased Nonparty jointly and severally guaranteed the obligations related to the trade bill loan and the import letter of credit payment guarantee among the three loans), jointly and severally, Defendant 3, who jointly and severally guaranteed the obligations related to the trade bill loan to the foreign exchange bank, the import letter of credit payment guarantee or the company purchase loan, and Defendant 3, within the scope of the property inherited from the deceased Nonparty, within the scope of the property inherited from the deceased Nonparty, and Defendant 3, within the limit of the guarantee limit of the Defendants’ claim against the Plaintiff, as the payment order of this case was delivered to the Plaintiff after the date of delivery of the payment order of this case, has the obligation to pay money at the annual rate of 20% per annum of the Act on Special Cases concerning the Promotion, etc. of Litigation from October 15, 2009 to the date of payment.

3. Judgment on the defendants' assertion

A. As to the assertion of exemption from guarantee liability

The Defendants asserted that, around June 199, the foreign exchange bank exempted Defendant 2 and the deceased Nonparty’s guaranteed liability by raising Defendant 1’s guarantee limit upon the Defendants’ request.

According to the evidence evidence Nos. 2, 6 through 10, and Eul evidence Nos. 1 through 8 of this case by raising a fraudulent act, the foreign exchange bank entered into a new collateral guarantee contract with the defendant 1 on November 25, 1998 after the conclusion of the instant collateral guarantee contract with the defendants on six occasions after June 7, 199 as stated above [Attachment 5]. However, the defendant 2 and the deceased non-party did not enter into the instant collateral guarantee contract after entering into the instant collateral guarantee contract on Nov. 25, 1998. The △△△ Bank did not enter into the instant collateral guarantee contract for the non-party 2's new collateral guarantee contract, and did not enter into the instant collateral guarantee contract for the non-party 2's new collateral guarantee contract for the purpose of cancelling the existing credit loan agreement for 199.6.7 years by extending the time limit of 200, and each of the above collateral No. 43 of the Seoul Credit Guarantee Fund's new Credit Guarantee Fund's Claim No. 58.

However, the purport of the whole evidence mentioned above is 0.0 .0 . 6 . 0 . 0 . 1 . 0 . 6 . 0 . 0 . 1 . 0 . 1 . 0 . 0 . 6 . 0 . 1 . 0 . 0 . 1 . 0 . 1 . 0 . 1 . 0 . 0 . 1 . 0 . 1 . 0 . 5 . 1 . 0 . 0 . 1 . 0 . 1 . 0 . 1 . 0 . 0 . 1 . 0 . 1 . 0 . 1 . 5 . 0 . 1 . 0 . 0 . 10 . 10 . 3 . , 199 . 5 . . 5 . . 10. . 10. . . 3 . . 10. . . .

Comprehensively taking account of the above facts, it is extremely exceptional that the foreign exchange bank entered into the instant collateral guarantee contract with Defendant 1 only once after it entered into the instant collateral guarantee contract with Defendant 1, 2, and the network Nonparty, and it seems that it is necessary to secure a shortage of security due to the modification of the credit transaction agreement with Boex, and that it is not for Defendant 2 and the network Nonparty to be exempted from the liability for the guarantee, and that there is no security to substitute for the guarantee liability of Defendant 2 and the network Nonparty. However, if the bank, which is a financial institution, was exempted from the liability of the existing joint and several surety without any special circumstance such as the provision of adequate security on behalf of the existing joint and several surety within 6 months after the conclusion of the collateral guarantee contract, it is difficult to find that the foreign exchange bank exempted the Defendant 2 and the network Nonparty from the liability for the guarantee liability, and there is no reason to recognize that there is no additional document or electronic record on the record that it did not have any other evidence that it bears the above joint and several surety liability.

B. As to the assertion that guarantee liability does not extend to individual transactions under a new transaction agreement

The Defendants asserted to the effect that the foreign exchange bank entered into an agreement on trade finance and import letters of credit transaction with Boex on June 7, 199, and that the Defendants are liable to guarantee the obligations arising out of June 7, 199, and that the Defendants are not liable to guarantee the obligations arising out of June 7, 199, as well as the subsequent renewed new trade finance and import letters of credit transaction agreement and their respective transactions based thereon.

On the other hand, as seen earlier, the instant contract between the Defendants and the foreign exchange bank is a limited guarantee contract which provides that the limit shall be 650,000,000,000 US dollars and 650,000,000,000,000 which are currently and future obligations of Boex’s trade transactions with the foreign exchange bank, the import L/C issuing transaction with Boex, and the settlement term for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the future (the settlement term shall be determined by the guarantor’s written notice three years after the date of the guarantee agreement). The guaranteed obligation shall not be limited to the trade transaction and the import L/C issuing transaction or the individual transaction based thereon for the settlement term as alleged by the Defendants, and thus, the aforementioned

C. As to the assertion that the future provision of the instant probation guarantee agreement is null and void pursuant to Article 9 subparag. 5 of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010; hereinafter the same)

The defendants asserted that the contract of this case constitutes "a clause which might unfairly disadvantage customers by unfairly short or long-term or by allowing implied extension or renewal of the period of time" under Article 9 subparagraph 5 of the former Act, and thus, the guarantor may unilaterally terminate the contract of this case because the contract of this case constitutes a continuous guarantee without a fixed period of time and thus, the guarantor may unilaterally terminate the contract of this case under the good faith principle because the contract of this case constitutes a continuous guarantee without a fixed period of time. The defendant 2 and the deceased non-party terminated the contract of this case on June 2, 199, and the obligation of the defendant 1 et al. prior to June 2, 1999, which occurred before June 2, 1999, was extended or terminated under the guarantee of defendant 1 and 204.

In light of the above, the so-called continuing guarantee agreement, which imposes liability on the obligee and the principal obligor for the guaranteed obligation arising in the present and future due to the continuous transaction relationship between the obligee and the principal obligor, cannot be deemed null and void. The essence of the so-called continuing guarantee agreement, even though there is no specific provision on the scope of the guarantee liability or the guarantee period, is nothing more than the guarantee agreement, so the surety bears the responsibility for the guarantee on the whole amount of the principal obligation at the time of payment (see, e.g., Supreme Court Decision 86Meu2023, Apr. 28, 1987). Since the future type of the guarantee settlement term of the instant continuing guarantee agreement, which is the settlement term of settlement of accounts, can be designated by the guarantor after three years have passed from the date of the guarantee agreement, the period of existence under Article 9 subparag. 5 of the former Regulation of Standardized Contracts Act cannot be viewed as null and void, on the ground that there is no possibility of unfairly prolonged or implied extension or renewal of the period to customers.

D. As to the assertion of violation of the good faith principle

The court's explanation on this part is identical to the part of the 6th judgment of the court of first instance from 19 to 7th judgment of the court of first instance. Thus, this part is acceptable in accordance with Article 420 of the Civil Procedure Act.

E. As to the claim on the extinction of the extinctive prescription of the root guaranteed obligation

The defendants asserts that since there is no provision concerning the period of liability for the probationary guarantee contract of this case, if the contract is continuously renewed after providing a guarantee for the continuous transaction as in the instant probationary guarantee contract, the guarantor may not escape from the guarantee liability permanently. Thus, it is reasonable to interpret that the guarantee liability under the instant probationary guarantee contract of this case is only liable for the obligations from the date of conclusion of the instant probationary guarantee contract to the date of termination of civil prescription or commercial prescription. Since the basic contract of the instant probationary guarantee contract is a commercial obligation, the defendants are liable for the obligations only within five years from November 25, 1998, which is the date of conclusion of the instant probationary guarantee contract of this case, to the extent that the defendants bear the guarantee liability only within five years from the commercial prescription period, and thereafter are not liable for the guarantee liability. Accordingly, the defendants 2 and the deceased non-party's guarantee obligation of this case were extinguished by the prescription.

On November 25, 1998, Defendant 2 and the deceased Nonparty entered into the instant collateral guarantee contract with the Foreign Exchange Bank, and determined the guaranteed obligation as the future designated type (as seen above, the settlement term may be designated by the guarantor's written notice after the lapse of three years from the date of the instant collateral guarantee contract), since the Defendant 2 and the deceased Nonparty set the guarantee obligation as the future type (the settlement term may be designated by the guarantor's written notice) for the financial transaction in Boex's foreign Exchange Bank, all of the obligations and future due to the import credit opening transaction, US$ 650,000 and US$ 650,00,00, and the settlement term of the collateral guarantee transaction, the settlement term for the settlement of the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts.

F. As to the assertion on the validity of the participation in composition procedures

The court's explanation on this part is the same as the 7th court's decision of the first instance, and therefore see it as it is in accordance with the main text of Article 420 of the Civil Procedure Act.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 and 2 shall be accepted on the ground of its reason, and the plaintiff's claim against the defendant 3, who is the plaintiff's taking over the lawsuit against the deceased non-party, shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed on the ground of its ground. The part against the deceased non-party in the judgment of the court of first instance which differs from this conclusion shall be modified as above, and the appeal by the defendant 1 and 2 shall be dismissed on the ground of its ground

[Attachment]

Judges intentionally (Presiding Judge) Kim Yong-ho

Note 1) Payment guarantee Nos. 1 and the debtor, credit department, and agreed amount are the same as that of the debtor, credit department, and extended to one year only, but the period of the agreement seems to have been extended to have been extended to a new loan rather than to extend the period as seen below.

Note 2) US$ 2,000,000 x 130%

Note 3) 2,900,000,000 - 2,320,000

Note 4) 580,00,000 】 130% = 754,00,000 won or the limit of continuing guarantee amount to 760,000,000 won.

심급 사건

-서울중앙지방법원 2010.6.8.선고 2009가합120639

서울고등법원 2011.2.24.선고 2010나60570

-대법원 2013.11.14.선고 2011다29987

원심판결

-서울중앙지방법원 2010. 6. 8. 선고 2009가합120639 판결

본문참조판례

-대법원 1987. 4. 28. 선고 86다카2023 판결

본문참조조문