The burden of proof in the case of a guarantor's defense of peremptory notice and search

The guarantor's right to defense of peremptory notice and search shall be established when the guarantor proves that he has a sufficient means to effect performance and is easy to execute.

Article 437 of the Civil Act

Plaintiff (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Yoon Jae-do et al., Counsel for defendant-appellant)

Seoul High Court Decision 67Na2417 delivered on June 12, 1968

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

Defendant 1’s attorney’s ground of appeal No. 1

In this case, the plaintiff asserted that the defendant jointly and severally guaranteed the non-party's principal loan obligation against the non-party. However, in this case where the defendant raised a peremptory and search defense against the guaranteed obligation, the court below cannot find the facts of the joint and several liability, but there is no error of law that found the defendant's simple guarantee based on evidence and found the fact that the plaintiff did not assert it.

The appeal is groundless.

The ground of appeal No. 2 is examined.

According to the main text of Article 437 of the Civil Code, when the obligee claims the surety to perform the obligation, the surety can first claim against the principal obligor by proving the fact that the obligor has the ability to perform the obligation and its execution is easy, and first claim against the obligor and the right to defense of search can be established when it is proved that the guarantor has the ability to perform the obligation to the principal obligor and that it is easy to execute the obligation. Thus, the obligee's right to defense of peremptory notice and search can not be asserted as to the first claim against the principal obligor. The judgment of the court below as to the first case as to the 11th order of January 1, 1962, the 4294 Civil Code and the 387 Civil Code, which are pointed out at the place of the argument, are related to the Gu Resident Law, and it is not adequate to conclude that the non-party, who is the principal obligor, has the right to defense against the 4th order of the Supreme Court in time of war, and there is no clear error in law as to the establishment registration of a mortgage at least 400.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Judge Balle (Presiding Judge) Do-dong and Hong-dong Circuit