In case where an obligee partly releases an obligation to one of the obligors jointly and severally liable, whether the absolute effect of the exemption is recognized only for the exempted portion (affirmative in principle), and the effect of the remaining obligation to be paid by the obligors, depending on whether the remaining obligation to be paid by the obligors exceeds the share of the obligation, on the other obligors’ obligations.

Article 419 of the Civil Act provides, “The exemption of obligation to one of the obligors jointly and severally liable shall be effective for the benefit of other obligors jointly and severally liable only in the part of the obligor’s apportionment.” The purport of this provision is to simply eliminate the legal relationship regarding the recourse by avoiding the circulation of recourse between the parties. As such, even in a case where a creditor partly releases his/her obligation to one of the obligors jointly and severally liable, such purport should be respected. Therefore, barring any special circumstance to deem that the partial exemption of obligation to one of the obligors jointly and severally liable only has a relative effect, the absolute effect of the exemption shall be recognized only for the exempted portion.

Where one of the obligors jointly and severally liable is exempt from a part of the obligation, if the remaining obligation to be paid exceeds the share of the obligation, the proportion of the obligation to be paid by the obligors shall not be reduced, and thus the other obligors shall bear the full amount of the obligation due to the lack of influence on the obligation of the other obligors. On the contrary, in cases where the remaining obligation of the obligor due to partial exemption is less than the share of the obligation, the proportion of the obligor’s liability decreased as much as the difference (the share of the obligation - the remaining obligation), the absolute effect of the exemption has occurred within

Article 419 of the Civil Act

New Day Co., Ltd. (Law Firm B&S, Attorney Jeong Jong-chul, Counsel for defendant-appellant)

International Construction Industry Co., Ltd. (Law Firm Seoyangyang, Attorneys Gyeong Tae-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2018Na2062332 decided February 15, 2019

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The lower court rejected the Defendant’s assertion that the Defendant, who was jointly and severally liable, was exempted from solidarity by the Korea Land and Housing Corporation as the obligee.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the probative value of disposal documents, and exemption from solidarity, or by failing to exhaust all necessary deliberations, which affected the conclusion of the

2. As to the third ground for appeal

Article 419 of the Civil Act provides, “The exemption of obligation against one of the obligors jointly and severally liable shall be effective for the benefit of the other obligors only in the part of the obligor’s liability.” The purport of this provision is to simply eliminate the legal relationship relating to the claim for reimbursement by avoiding the circulation of the claim for reimbursement between the parties. As such, even in a case where a creditor partly releases his/her obligation to one of the obligors jointly and severally liable, such purport should be respected. Therefore, barring any special circumstance to deem that the partial exemption of obligation against one of the obligors jointly and severally liable only has a relative effect, the absolute effect of the exemption shall be recognized only in the case of partial exemption.

Where one of the obligors jointly and severally liable is exempt from a part of the obligation, if the remaining obligation to be paid exceeds the share of the obligation, the proportion of the obligation to be paid by the obligors shall not be reduced, and thus the other obligors shall bear the total amount of the obligation due to the lack of influence on the obligation of the other obligors. On the contrary, in a case where the remaining obligation of the obligor due to partial exemption is less than the share of the obligation, the proportion of the obligor’s liability decreased as much as the difference (the share of the obligation - the remaining obligation). Therefore, the absolute effect of the exemption has occurred within the scope of

The lower court determined that the Defendant’s partial exemption from liability to the Korea Land and Housing Corporation did not affect the Defendant’s obligations to East Construction, a joint and several debtor, on the ground that the amount of debt to the Korea Land and Housing Corporation is KRW 386,743,198, and the amount exempted by the Defendant is KRW 234,620,465, and the remaining amount exceeds KRW 152,122,733, the Defendant’s share of the Defendant’s share of the liability.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of a disposition document and the interpretation of Article 419 of the Civil Act, thereby affecting the conclusion

3. As to the fourth ground for appeal

The court below rejected the defendant's defense of offset, and rejected the defendant's assertion that the plaintiff's claim constitutes an abuse of rights.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the establishment of liability for tort damages, abuse of rights, or failing to exhaust all necessary deliberations

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)