Busan Loan Co., Ltd.

Defendant

May 19, 2016

Seoul Southern District Court Decision 2015 Ghana533642 Decided February 12, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. Article 1 of the Judgment of the first instance court was modified by the reduction of claims in the trial as follows:

The defendant shall pay to the plaintiff 10,792,00 won with 6,428,517 won and 34.9% interest per annum from November 11, 2015 to the day of full payment.

1. Purport of claim

The primary purport of the claim is to pay to the Plaintiff 6,428,517 won and 34.9% interest per annum from November 11, 2015 to the date of complete payment.

Preliminary claim: the Defendant shall pay to the Plaintiff the amount of KRW 6,428,517 within the limit of KRW 10,792,00,000 with 15% interest per annum from the day following the delivery of a copy of the instant complaint to the day of full payment.

(1) The Plaintiff did not state that “within the limit of KRW 10,792,00” was stated in the application form for modification of the purport and cause of the claim in the trial. However, the Plaintiff’s purport of the claim is examined as above.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. On April 8, 2015, the Plaintiff: (a) obtained an application for a loan with the content that Nonparty 1 (the Nonparty: the Nonparty) who is the Defendant’s seat through a loan brokerage company wanting to obtain a loan of KRW 8 million from the Plaintiff at a rate of 34.9% per annum; and (b) the Defendant jointly and severally guaranteed the said obligation.

B. The Plaintiff confirmed the loan transaction contract and joint and several sureties contract (Guarantee Ceiling 10,792,00 won), Nonparty 1 and the Defendant’s personal information provision consent, copy of the Defendant’s resident registration certificate, Defendant’s health insurance qualification certificate (No. 8, 2015), Defendant’s health and long-term care insurance payment certificate (No. 8, 2015), and then called to the Defendant for the loan review.

C. On April 10, 2015, the Defendant informed the Plaintiff’s employee of his resident registration number and cooperates with the process of identification, and then asked the Plaintiff’s employee about the relationship between the Defendant and Nonparty 1, whether the Defendant already signed on the loan transaction contract and the joint and several surety contract, whether the Defendant’s dwelling form, the Defendant’s occupation, etc., were living together with Nonparty 1, and the Defendant resided in the apartment leased contract under the name of the Defendant with his family members. The Defendant is living in the apartment leased contract under the name of the Defendant. At present, the workplace is serving in the business department of ○○○, Co., Ltd., Ltd., which is a motor vehicle parts agent, in writing, written the contract and credit information consent, and sent a copy of the contract in detail that it was delivered, and the Defendant asked Nonparty 1 whether the Defendant wishes as a joint and several surety to the Defendant as to the loan to Nonparty 1.

D. On April 10, 2015, the Plaintiff loaned KRW 8 million to Nonparty 1 at the interest rate of 34.9% per annum, the expiration date of the contract on April 10, 2020, and the 10th day of each month of the repayment agreement (hereinafter “instant loan”).

E. Nonparty 1 paid the principal and interest of this case, and delayed repayment of the principal and interest after November 10, 2015, and remains in KRW 6,428,517 of the outstanding principal and interest.

[Ground of recognition] Each entry of Gap evidence Nos. 1 through 6 (the evidence No. 1 is acknowledged by the entry of evidence No. 4), the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

(1) The Plaintiff primarily and jointly guaranteed the Defendant’s loan obligation at the time of the instant loan, and the Defendant is obligated to pay the outstanding principal and interest of the loan to the Plaintiff as joint and several sureties, and even if it is not possible to deem that the joint and several sureties contract between the Plaintiff and the Defendant was concluded, the Defendant’s signature was confirmed by telephone communications with the Plaintiff, thereby deceiving the Plaintiff and deceiving the Plaintiff, and thus, the Plaintiff did not recover the principal amount of KRW 6,428,517 among them. Accordingly, the Defendant is liable to compensate the Plaintiff for damages caused by the said unlawful act.

(2) The defendant's expression of intent of joint and several sureties asserted by the plaintiff is invalid pursuant to Article 3 of the former Special Act on the Protection of Surety (amended by Act No. 13125, Feb. 3, 2015; hereinafter "former Act") or Article 6-2 of the Act on Registration of Credit Business, etc. and Protection of Finance Users (hereinafter "Credit Business Act") and Article 6-2 of the Act on Protection of Finance Users. The defendant answers to the purport that the defendant's expression of intent of joint and several sureties in the currency with the plaintiff's employee, knowing that the defendant's identity is verified through the deception of the non-party 1 and the loan broker 2, the defendant made a answer to the question of whether the defendant is "e-mail" in the currency with the plaintiff's employee and asked for the intent of joint and several sureties. Thus, the defendant argues

B. Whether the defendant is jointly and severally guaranteed

Article 3(1) of the former Act provides that “A guarantee shall take effect when the intent thereof is written with the name and seal or signature of the guarantor.” In addition, when a credit service provider enters into a loan agreement with the opposite contractual party, it shall require the opposite contractual party to enter important matters, such as the amount of loan, interest rate on loan, repayment period, etc. (Article 6-2(1)). If a loan agreement is entered into with the opposite contractual party (Article 6-2(1)), the guarantee period, the amount of guarantee obligation, the scope of guarantee amount, etc. shall be written in writing by the opposite contractual party (Article 6-2(2)).

In full view of the above facts, the defendant shall sign the joint and several guarantee contract and shall state important matters in the joint and several guarantee contract in writing and may fully ratification the fact that the non-party 1 was a joint and several guarantee borrowed from the plaintiff.

C. Judgment on the Defendant’s assertion of deception

In light of the facts of recognition as seen earlier, it is insufficient to recognize that Nonparty 1 and Nonparty 2, a loan broker, in the instant loan, have deceiving the Defendant, solely with the descriptions of the evidence of Nos. 1 through 12, and there is no other evidence to prove otherwise. Therefore, the Defendant’s above assertion is without merit.

D. Sub-determination

Therefore, within the limit of KRW 10,792,00, the Defendant is obligated to pay to the Plaintiff the agreed interest rate of KRW 6,428,517, which is the remainder of the loan of this case, and damages for delay calculated at the rate of KRW 34.9% per annum from November 11, 2015 to the date of full payment, which is the day following the date of delinquency.

3. Conclusion

If so, the plaintiff's primary claim is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit. However, the decision of the court of first instance is delivered with the decision of the court of first instance since it was modified by the reduction of the plaintiff's claim from the court of first instance to the plaintiff and the defendant.

Judges Jeong Chang-hee (Presiding Judge)