[1] In a case where the guarantee contract is terminated due to the extension of the transaction period under the main contract after the conclusion of the guarantee contract for the non-fixed obligations arising from the continuous relationship of claims, but the guarantee contract is extended due to the extension of the guarantee period, whether the guarantor is liable for the guarantee only for the obligations under the main contract as at the termination

[2] Whether there is a difference in the interest of repayment between the debt during the guarantee period and the debt after the expiration of the guarantee period where the person is the principal debtor (negative)

[3] In a case where Gap and Eul corporation entered into a joint and several guarantee agreement with Eul corporation under the transaction agreement entered into between Byung and Eul corporation, and Eul corporation, and Eul did not set the guarantee period, and Eul filed a claim for the guarantee amount against Eul because Eul's transaction payment obligation established as of the end of the transaction relationship under the above transaction agreement exceeds the guarantee limit amount, the case holding that the judgment below erred by misapprehending legal principles, which admitted Eul's claim for the guarantee amount on the ground that Eul's transaction payment exceeds the guarantee limit amount of Eul's guarantee amount as of the expiration of the three-year guarantee period under Article 7 (1) of the Special Act on the Protection of Surety, and since Eul's guarantee period expired prior to the transaction period under the main contract, since Eul's guarantee period expired prior to the expiration of the contract period, it is highly probable that Eul's guarantee obligation was extinguished because Eul's guarantee obligation was first appropriated for payment to Eul's whole transaction payment obligation due to Eul's expiration of the guarantee period as of the expiration of the guarantee period

[1] In the event that a guarantee is guaranteed for an indefinite obligation under a main contract that occurs continuously in the relationship of a claim, the guarantee obligation shall normally be established at the time when the obligation under the main contract becomes final and conclusive. However, if the guarantee contract relationship has been terminated first due to the extension of the transaction period between the creditor and the principal debtor, but the guarantee obligation has not been extended between the guarantor and the principal debtor, the guarantee obligation becomes final and conclusive upon the termination of the guarantee contract. Therefore, the guarantor is liable for the guarantee obligation under the main contract at the

[2] In the event the principal obligor is the obligor, there is no difference between the obligor’s obligation and the obligor’s non-sureties’s obligation. As such, there is no difference in the interest of repayment between the obligor’s obligation during the guarantee period and the obligation after the expiration of the guarantee period. Therefore, the amount repaid by the principal obligor ought to be appropriated for the performance from the first due date to the due date,

[3] In a case where Gap and Eul corporation entered into an agreement with Eul company to provide joint and several guarantee obligations to Eul company under the transaction agreement entered into between Byung and Byung company under the transaction agreement between Byung and Byung, and Eul did not set the guarantee period; Eul company's transaction payment obligations to Byung company are more than the guarantee limit amount; after the transaction agreement was terminated under the above transaction agreement, Eul company's transaction payment obligations to Eul were more than the guarantee limit amount; and Eul company's transaction payment claims against Eul are more than the guarantee limit amount; the above joint and several guarantee agreement constitutes a case where the guarantee period is not fixed, and the guarantee period should be three years pursuant to Article 7 (1) of the Special Act on the Protection of Surety, and Byung deposited the transaction payment with Eul company several times after the expiration of the guarantee period under the main contract; thus, since the guarantee period of Eul's transaction payment obligations to Eul company becomes more due first than the part that occurred within the guarantee period of Eul company's whole transaction payment obligations to Byung, the court below erred in the misapprehension of legal principles as to Gap's guarantee period's claim for satisfaction of the guarantee period.

[1] Articles 428 and 429 of the Civil Act / [2] Article 477 of the Civil Act / [3] Articles 428, 429, and 477 of the Civil Act; Article 7 (1) of the Special Act for the Protection of Surety

[1] [2] Supreme Court Decision 99Da26481 Decided August 24, 1999 (Gong1999Ha, 1957) Supreme Court Decision 2013Da22454 Decided July 11, 2013

Busan Central Office (Law Firm LLC, Attorneys Go Jong-ju et al., Counsel for the defendant-appellant)

Defendant (Law Firm C&K, Attorneys Kang Chang-ok et al., Counsel for the defendant-appellant)

Busan District Court Decision 2018Na46148 Decided January 9, 2019

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. In the event that a guarantee is guaranteed for an indefinite obligation under the main contract which occurs continuously in the relationship of a claim, the guarantee obligation shall normally be established at the time when the obligation under the main contract becomes final and conclusive. However, if the term of a guarantee contract has been extended between a creditor and a principal debtor, but the term of a guarantee contract has expired first due to such reasons as the extension of the term of a guarantee between the guarantor and the principal debtor, the guarantee obligation shall become final and conclusive upon the termination of the guarantee contract. Therefore, the guarantor shall be liable

Meanwhile, in cases where a person effecting performance is a principal obligor, there is no difference between the debt with the guarantor and the debt without guarantor in terms of the benefit of repayment. Therefore, there is no difference between the debt during the guarantee period and the debt after the expiration of the guarantee period. Therefore, the amount repaid by the principal obligor ought to be appropriated for performance as prescribed by the Act from the first due date (see, e.g., Supreme Court Decisions 9Da26481, Aug. 24, 199; 2013Da22454, Jul. 11, 2013).

2. On August 5, 2009, the lower court acknowledged the following facts: (a) the Plaintiff entered into an intermediary wholesaler transaction agreement with the Nonparty on the transaction of water with the Nonparty (hereinafter “instant transaction agreement”); (b) on February 1, 2017, and (c) on August 6, 2009, the Defendant jointly and severally guaranteed the Nonparty’s obligation under the instant transaction agreement within the limit of KRW 30 million (hereinafter “joint and several guarantee agreement”); (b) the Plaintiff’s outstanding claim against the Nonparty was KRW 106,18,939, and KRW 109,436,327 on August 5, 209; (c) determined that the joint and several guarantee agreement in this case constitutes a case where the period of guarantee is not fixed; and (d) the Defendant is liable to pay the Nonparty for delay payment exceeding the guarantee limit of KRW 30,000,000,000,000 for KRW 30,000,000.

3. However, examining the following circumstances acknowledged by the record in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below as it is.

A. As the cause of the instant claim against the Defendant, the joint and several guarantee agreement of this case remains until the termination of the instant transactional relationship under the main contract, and the Defendant asserts that, on February 1, 2017, the said transactional relationship was terminated, the Defendant is obligated to pay KRW 30 million, which is the maximum amount of guarantee, out of KRW 84,647,938, the Nonparty’s transaction payment obligation against the Nonparty, which is the primary obligation determined as of February 1, 2017. Meanwhile, the Plaintiff asserted that the Nonparty was obligated to pay KRW 79,627,272, as of September 2012, with the transaction payment under the instant transactional agreement, from the Nonparty as of December 14, 2012, KRW 14,351,40, KRW 400, KRW 43,749,290 on January 1, 2013, and accordingly, submitted evidence No. 6 (Performance Table) corresponding thereto.

B. As to this, the Defendant argued to the effect that “the period of joint and several liability of the Defendant was expired on August 6, 2012, and the Plaintiff’s claim was related to the principal obligation that occurred thereafter.” The Defendant’s assertion can be interpreted as including the purport that the principal obligation that occurred during the guarantee period of the Defendant’s assertion was extinguished due to repayment, etc.” Even if not, the lower court should clarify the purport that the Defendant had no liability to guarantee due to the expiration of the guarantee period by exercising his/her right to explanation against the Defendant, i.e., whether the principal obligation was nonexistent at the expiration of the guarantee period, or whether the obligation was extinguished due to repayment thereafter.

C. Meanwhile, according to the facts acknowledged by the court below, where the guarantee period of the defendant expires prior to the contract period under the main contract, the part that occurred within the guarantee period of the defendant among the part that occurred after the contract period of this case against the plaintiff of this case becomes due first. Thus, the amount that the non-party paid to the plaintiff of this case pursuant to the transaction agreement of this case should be appropriated first to the part that occurred within the guarantee period of the defendant that became due first, among the whole transaction payment amount of the non-party to the plaintiff of this case. Thus, in light of

4. Nevertheless, while accepting the Defendant’s assertion that the guarantee period of the joint and several guarantee agreement of this case is three years pursuant to Article 7(1) of the Surety Protection Act, the lower court accepted the Nonparty’s claim solely on the ground that the Nonparty’s credit payment obligation against the Nonparty exceeds the Defendant’s guarantee limit upon the expiration of the said guarantee period. In so determining, the lower court erred by misapprehending the legal doctrine regarding the scope of the guarantor’s guarantee liability in a continuous guarantee and the payment of debt, etc., or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)