Plaintiff Co., Ltd. (Attorney Song Jae-gu et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorney Seo-Hy et al., Counsel for the defendant-appellee)

August 25, 2006 (Defendant 4, 5)

September 22, 2006 (Defendant 1, 2, and 3)

1. Defendant 1, 2, 3, and 4 shall pay to the Plaintiff 359,098,925 won, among them, 73,384,641 won from October 22, 2005, 142,857, and 142 won from April 1, 2006, 142, 142,857, and 142 won from July 1, 2006, 5% per annum from October 20, 206, and 20% per annum from the next day to the date of full payment.

2. The plaintiff's claim against the defendant 5 (the defendant in the second and third instances) is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1, 2, 3, and 4 is assessed against the Defendants, and the part arising between the Plaintiff and Defendant 5 is assessed against the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The phrase “Defendant 1, 2, 3, and 4” in paragraph (1) of the same Article is replaced by “Defendants”.

1. Basic facts

(a) Conclusion of factoring transaction agreements and joint and several sureties;

(1) On January 15, 1997, the non-party 2 Co., Ltd. (the non-party 2 Co., Ltd. was declared bankrupt on June 9, 199; hereinafter the same shall apply) entered into an factoring agreement with the non-party 3 Co., Ltd. on a set of one year of transaction with the non-party 3 Co., Ltd., to pay interest, discount fees, fees, etc. from the non-party 3 Co., Ltd. in return for the performance of the business related to the transfer, acquisition, management, collection, factoring financing, and the business incidental thereto, and thereafter, the non-party 2 Co., Ltd. paid a total of 6 billion won to the non-party 3 Co., Ltd. from January 15, 1997 to April 15 of the same year (hereinafter “the factoring loan”).

(2) At the time of the aforementioned factoring transaction agreement, the Plaintiff and the Defendants jointly and severally guaranteed the obligations of Nonparty 3 Co., Ltd. to Nonparty 2, together with Nonparty 1, Nonparty 8 Co., Ltd. (Representative Director), Nonparty 9 Co., Ltd. (Representative Director), Nonparty 10 Co., Ltd. (Representative Director), Nonparty 11 Co., Ltd. (Representative Director Defendant 4), and Nonparty 12 Co., Ltd. (Representative Director Defendant 5).

(3) On March 11, 1997, Nonparty 2, 3, and 9 Co., Ltd., with the consent of all joint and several sureties including the Plaintiff and the Defendants, changed the debtor from Nonparty 3 to Nonparty 9 Co., Ltd., and entered into a contract with the assumption of obligation with the content that the Defendant fully assumes the obligations of Nonparty 3 Co., Ltd.., and 11, including the Plaintiff and the Defendants, Nonparty 1, 8, 10, 11, and 12 Co., Ltd., jointly and severally guaranteed the obligations of Nonparty 9 Co., Ltd. to Nonparty 2 as “new joint and several sureties” (hereinafter referred to as “instant factoring agreement and the aforementioned assumption of obligation”).

(b) Authorization, etc. of composition for some joint and several sureties;

(1) The non-party 8 corporation obtained on February 19, 199 the approval decision of composition (Seoul District Court 98Da211) and confirmed the above decision around that time.

(2) On November 4, 199, the non-party 12 corporation was declared bankrupt on February 11, 2004, and the non-party 10 corporation was declared bankrupt on October 28, 2002, and the non-party 11 corporation was declared bankrupt on March 10, 203. The non-party 9 corporation as the principal debtor was dissolved pursuant to Article 520-2(1) of the Commercial Act on December 3, 2002, and the registration of the completion of liquidation was completed on December 6, 2005.

(c) Partial repayment of factoring loans;

(1) From January 18, 1997 to May 21, 2003, Nonparty 2 was paid KRW 4,102,587,008 (principal KRW 2,537,741,396, interest KRW 1,564,845,612) out of the interest and interest on the factoring loans of this case over several occasions.

(2) Nonparty 2 filed a lawsuit with Nonparty 9 Co., Ltd. and the aforementioned joint and several sureties (except for Nonparty 11 Co., Ltd.) including the Plaintiff and the Defendants as Defendant (Seoul Central District Court 2002Gahap25186). On July 23, 2003, the above court rendered a judgment of 3,462,258,604 won and 2,758,344,350 won to Nonparty 2 Co., Ltd., Ltd. and 2,755,97, 375,962,00 won from November 11, 1997, 375, 962, and 200 won from the factoring loan of this case to Nonparty 2, 305, 200, 327,952,254 won from the date of repayment of bankruptcy claim of Nonparty 25, 200, 300,000 won from the date of repayment of bankruptcy claim of Nonparty 25.

D. The plaintiff's partial repayment of judgment amount

(1) On October 13, 2005, the Plaintiff received a claim for prohibition of judgment from the non-party 2 Co., Ltd. after the above judgment became final and conclusive, the Plaintiff agreed to pay the remainder of the debt by October 31, 2006, within the scope of the above judgment amount, within 513,692,490 won, and 1,000,000,000 won until March 31, 2006, and 1,000,000,000,000 won until June 30, 2006, and by August 31, 2006.

(2) In accordance with the above agreement, the Plaintiff repaid KRW 2,513,692,490 to Nonparty 2 Co., Ltd. on October 21, 2005, KRW 1,000,000,000 on March 31, 2006, and KRW 2,513,692,490 on June 30, 2006 (hereinafter “the instant additional repayment”), including KRW 1,2,00,000,000 on June 30, 2006 (hereinafter “the instant additional repayment”), and said additional repayment was “the instant repayment”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 11, Eul evidence 1, Eul evidence 1 (including a tentative number)

2. The assertion and judgment

A. The defendants' duty of indemnity

(1) In the case where there are several joint and several sureties, each obligee has to pay the full amount of the obligation without having separate profits, but there are certain portions of the obligation among the joint and several sureties, and unless there is any special agreement as to the ratio of the share of the obligation, it shall be considered that there is an equal proportion among the joint and several sureties. Therefore, when one of the joint and several sureties has repaid more than the share of the obligation, the other surety may claim reimbursement against the other surety, but it shall not be allowed to claim reimbursement against the person who has already discharged the part of his own obligation among the other sureties (see Article 425 of the Civil Act, Supreme Court Decision 93Da4656 delivered on May 27,

(2) As seen earlier, the Plaintiff paid out KRW 2,513,692,490 to Nonparty 2 Company at his own expense and jointly released the Defendants and other joint and several sureties, and there is no evidence to prove that there is a special agreement on the internal share of the Plaintiff and other joint and several sureties under the Factoring Agreement including the Plaintiff and the Defendants, and thus, the internal share of the Plaintiff is equal. Therefore, the portion of the Plaintiff’s own share out of the instant reimbursement amount is KRW 228,517,49 (i.e., KRW 2,513,692,490, KRW 11,000, KRW 2,285,174,91 (=2,513,692, KRW 490, KRW 228,517,90, KRW 4999).

Therefore, barring special circumstances, the Defendants are obligated to pay to the Plaintiff the share of the Plaintiff’s reimbursement (the share of the Plaintiff’s reimbursement is equal, so the same shall apply to the portion of the Plaintiff’s reimbursement) 228,517,49 won (i.e., the share of the Plaintiff’s reimbursement) (i., 285,174,91 won / less than 10 joint and several surety acceptances other than the Plaintiff 10,000 won / 91 won) (i.e., the Defendant continues to hold the status of joint and several surety under the initial contract even if the Plaintiff became the principal obligor, and thus, shall be included in the reimbursement obligor. However, as seen earlier, the Defendants’ assertion that, at the time of the assumption of obligation agreement, Nonparty 9 Company succeeded to the status of the applicant for factoring, namely, the status of the principal obligor, Nonparty 3 Company as the principal obligor, and did not enter into a new joint and several surety agreement with Nonparty 9 Company as a joint and several surety, unlike other joint and several surety under the initial contract.

(b) Allocation of the allotment of the insolvent;

(1) Of the joint and several suretys under the factoring agreement of this case, Nonparty 10, 11, and 12, who were declared bankrupt, constitute a person with no financial capacity to repay.

(2) Furthermore, comprehensively taking account of the overall purport of arguments as to whether Non-Party 8 corporation is included in the person who is insolvent and the statement No. 2-1 of evidence No. 2, the part related to this case in terms of the condition for approval of composition against Non-Party 8 corporation shall be exempted in full, and the principal amount shall be preferentially repaid from Non-Party 9 corporation, which is the principal debtor. However, in a case where the cause for the payment of the guaranteed obligation arises due to non-party 9 corporation's loss of ability to repay due to bankruptcy, liquidation, etc., the amount fixed before December 31, 2008 shall be equally paid on December 31 of each year from 2009 to 2018, and even if it is determined after January 1, 2009 to be paid, it is reasonable to view that Non-Party 2 corporation is not liable for reimbursement from Non-Party 4 corporation to be paid for by Non-Party 8 corporation's indemnity after the date of completion of the suit.

(3) Therefore, barring any special circumstance, Nonparty 8, 10, 11, 11, and 12, a non-party 1, a non-party 1, who is insolvent, out of the claim for reimbursement against the instant amount of reimbursement (i.e., the portion to be borne by each of the joint and several obligors 228,517,499 x 4) are to be borne in proportion to the respective share of the Plaintiff, Defendants, and non-party 1, who are joint and several guarantors, barring any special circumstance. Therefore, the Defendants are liable to additionally pay to the Plaintiff the share to be borne by each of the aforementioned insolvent amount of reimbursement (i.e., KRW 130,581,428 (= KRW 914,069,996 won/7).

C. Determination as to the defendants' assertion

(1) Defendant 3, 4, and 5 asserted that, around September 10, 1997, joint and several guarantors under the factoring agreement of this case, including the Plaintiff and the Defendants, concluded a special agreement to exempt each individual joint and several sureties from liability, including the Defendants, or to exempt each of the Defendants from joint and several sureties from the liability of the Defendants, in lieu of making payment in installments in 1.2 billion won, with respect to the factoring loan 6 billion won to Nonparty 2, including the Plaintiff, Nonparty 8, 10, 11, and 12, and each of the five corporations, including the Defendants, around September 10, 1997.

In light of the above facts, it is difficult to believe that the agreement was made on the part of No. 4, and according to the evidence No. 2, No. 2, No. 8, and No. 1, No. 2, and No. 1, No. 5, the Defendants were exempt from the Defendant’s liability under the name of Non-Party 8, No. 10, No. 10, No. 11, and No. 12, No. 10, No. 5, and No. 10, No. 65, and No. 1, No. 2, the Defendants were exempt from the Defendant’s liability of No. 1, No. 391, No. 480, No. 537, Sept. 10, 1997; the Defendants were exempt from the Defendant’s liability of No. 1, No. 2, No. 365, No. 1, No. 3665, No. 81, Dec. 36, 1978, 1997

(2) Defendant 4 and 5 asserted that the representative director of the plaintiff was exempted from the liability for reimbursement against the plaintiff 4 and 5 as representative director, but there is no evidence to acknowledge the argument of the defendant 4, and considering the whole purport of the argument of the defendant 5 in light of the health class and evidence No. 3 as to the argument of the defendant 5, it is difficult to conclude that the defendant 1 was exempted from the liability for reimbursement of unpaid factoring loans by the non-party 2 corporation on March 26, 2004, where the appeal was pending, and that the non-party 1 was registered as the plaintiff's representative director at the corporate register as of July 29, 204 (the non-party 1 retired from the office of representative director on June 26, 2003) and there is no room to acknowledge that the plaintiff's intent to exempt the defendant 1 or the non-party 5's joint and several liability was discharged from the liability for reimbursement or reimbursement in the name of the defendant 1 or the non-party 5's claim for reimbursement.

(3) Defendant 4 asserted to the effect that each joint and several liability company and its representative director shared 1/6 of the total amount of joint and several liability obligations, but they cannot respond to the plaintiff's claim since they concluded a installment payment agreement to the effect that joint and several liability joint and several liability companies are exempted from joint and several liability obligations, but it is difficult to believe that there was a installment payment agreement to the same effect only with the entries in the evidence No. 6 and No. 3 of the evidence No. 5, and there is no other evidence to acknowledge that there was a installment payment agreement to the above purport. Thus, Defendant 4's assertion is without merit.

(4) Defendant 5 asserts to the effect that, since Defendant 5 had already repaid above his share of expenses, he cannot respond to his claim for reimbursement of his share of expenses and the share of expenses to be borne by the person who is insolvent.

In full view of the purport of the argument as a whole, Defendant 5’s portion of the Plaintiff’s reimbursement amount of KRW 656,00,000 out of the joint and several several several several debt under the factoring agreement in this case, which was pending on May 21, 2003, which was brought by Nonparty 2 to Nonparty 2, is recognized to have been repaid in the name of an individual. Of these, Defendant 5’s share of KRW 59,636,363 (=6,00,000/11), the portion of Defendant 5’s share of Defendant 5 out of the Plaintiff’s reimbursement amount of KRW 228,517,499 is identical as seen earlier. Accordingly, Defendant 5’s share of Defendant 28,153,862 won (i.e., 228,517,499, 499) cannot be paid in excess of the Plaintiff’s joint and several debt reimbursement amount of KRW 1536,53636,9636.36

Meanwhile, as seen earlier, since non-party 8, 10, 11, and 12 companies among the joint and several liability under the factoring agreement of this case were insolvent, as a matter of principle, Defendant 5 also has to share the amount of the reimbursement obligation of the said insolvent person in proportion to his portion of the reimbursement. However, Defendant 5 cannot claim reimbursement against the said insolvent person. Thus, in the event that Defendant 5 paid the reimbursement in excess of his portion of the reimbursement obligation of the said insolvent person, it is reasonable to view that the Plaintiff cannot claim payment of the amount of the reimbursement obligation of the said insolvent person against Defendant 5, in light of the purport of the mutual reimbursement system between the joint and several liability holders and the prevention of circular action against the said insolvent person, or the litigation economy, the amount of reimbursement of the reimbursement obligation of the said insolvent person’s reimbursement obligation of 130,581,428 out of the reimbursement obligation of the said insolvent person’s reimbursement obligation of the Plaintiff, 235,54,529,467,467,57,5636,57,29).

3. Conclusion

Therefore, Defendant 1, 2, 3, and 4 have the unique share of each of the above Defendant 1, 2, 3, and 59,098,925 won (i.e., the unique share of 228,517,49 won + the share of 130,581,428 won + the share of 359,09,098,927 won or the difference of 2 won) and among them, they have waived the claim of 73,384,641 won, which is the share of the first additional share of 30,05,000 won from October 22, 205, the second additional share of 142,857,142 won from the next day of the second additional share of 30,000 won to the 20,000,0000 won from the next day of the second additional share of 20,000 won to the 25,015,06,01.

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)