Whether an heir succeeds to the status of a guarantor in a case where a guarantor of a continuous guarantee agreement without setting a guarantee period and a guarantee limit dies (negative)

In the case of continuous guarantee agreement, even if the guarantor has died, the guarantee agreement does not automatically terminate, and the heir shall succeed to the status of the guarantor, except in extenuating circumstances. However, in the case of continuous guarantee agreement without setting the guarantee period and the maximum guarantee amount, the status of the guarantor shall not be inherited to the heir upon the death of the guarantor. However, only the guarantee obligation arising from king is inherited.

Article 428(2) of the Civil Act

Supreme Court Decision 99Da19322, 19339 delivered on June 22, 1999 (Gong1999Ha, 1483 delivered on February 10, 1998)

New Bank of Korea (Attorney Jeong Chang-hee, Counsel for defendant-appellee)

Defendant 1 and one other (Attorneys Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na81098 delivered on July 4, 2000

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court.

The grounds of appeal are examined.

1. Summary of the judgment below

The court below held on October 5, 1994 that Non-party 1, who is the actual manager of the new company (hereinafter referred to as the "new company"), was liable for joint and several liability within the limit of 8,388,00,000 won with respect to all obligations arising from credit transactions, including bill loans, bill discount, check loan, payment guarantee (including bond guarantee), etc. which are currently and in the future borne by the plaintiff against the plaintiff, and that the guarantee period is not separately prescribed and the guarantor may terminate the guarantee agreement in writing at the expiration of three years after the date of the guarantee agreement (hereinafter referred to as the "guarantee agreement in this case"), and that the defendants succeeded to the status of non-party 2's guarantor's guarantee obligation to the plaintiff at the expiration of the guarantee period of non-party 3,247,500,000, and that the non-party 2's guarantee obligation, as a matter of course, shall not be subject to dispute between the parties, and thus, the defendants shall succeed to the status of the guarantor's guarantee agreement in this case.

2. Judgment of the Supreme Court

A. In the case of continuous guarantee agreement to which the guarantee limit is set, even if the guarantor died, the guarantee contract is not naturally terminated, and the inheritor shall succeed to the status of the guarantor unless there are special circumstances (see, e.g., Supreme Court Decisions 97Nu5367, Feb. 10, 1998; 99Da19322, 19339, Jun. 22, 199). However, in the case of continuous guarantee agreement with no fixed guarantee limit and guarantee limit, the status of the guarantor shall not be succeeded to the heir if the guarantor dies, but only the guarantee obligation arising from king shall be succeeded to.

B. The court below found that there was no dispute as to the maximum amount of guarantee under the guarantee agreement of this case. However, according to the records, the defendants admitted the letter of guarantee of this case (Evidence No. 4-1) as a site, and they did not enter into a joint and several guarantee contract such as the plaintiff's assertion (Records No. 70, 75), or the guarantee agreement of this case was not set up for the period of guarantee (Records No. 674, 681). It did not appear to have led to confession. Nevertheless, the court below did not err by misapprehending that the court did not have any dispute as to the maximum amount of guarantee under the guarantee agreement of this case.

Furthermore, in light of the record, there is a considerable room to view that the ‘the limit of guarantee under the instant guarantee agreement' was KRW 8,388,00,000 for the following reasons, without being based on the intention of Nonparty 1 later.

(1) Generally, where the limit of guarantee is set in comprehensive guarantee, the amount shall be 120% of the transaction limit subject to guarantee. The amount shall be 8,38,00,000 won, which is the transaction limit under the Guarantee Agreement, based on the limit of original and new financial transactions with the Plaintiff. The transaction limit amount to be KRW 8,388,00,000 shall be 6,990,000 (gold KRW 8,38,000,000 ± 1.2) which is the aggregate of the transaction limit of KRW 90,990,000 under the Guarantee Agreement with the Plaintiff and New, and KRW 9,00,000,000, which is 195,000,0000 won under the Guarantee Agreement with the Plaintiff and New, 1.0,000,000 won, which is 9,000,000 won, prior to October 31, 1995.

(2) The guarantee agreement concluded between Nonparty 1 and the Plaintiff on November 6, 1992 (Evidence No. 11-1 of the A), which was concluded between the Plaintiff and the Plaintiff on November 6, 1992, did not set the guarantee limit amount despite the fact that the Defendant guaranteed all obligations related to credit transactions including the loan, bill discount, bill discount, cash loan, and payment guarantee (including bond guarantee). The guarantee limit amount was not determined even in the written guarantee guarantee (Evidence No. 3-1 of the A), which was concluded on October 5, 1994 as the date of the conclusion of the instant guarantee agreement, by Nonparty 2, the wife of Nonparty 1, who was the wife of Nonparty 1, did not set the guarantee limit amount. It is difficult to understand that the guarantee limit was set only in the exclusive guarantee agreement of this case.

(3) The body of Nonparty 3’s probationary guarantee (Evidence 4-1 of the evidence A) is similar to the body and the body of Nonparty 3’s written guarantee (Evidence 5-1 of the evidence No. 5-1 of the evidence No. 5), and the body of the guarantee limit is likely to be written by any group after preparing the instant written guarantee order and the written guarantee of Nonparty 2’s probationary guarantee (Evidence 3-1 of the evidence No. 3-1 of the evidence No. 3-1).

C. If so, the court below should have determined the basis for calculating the limit amount under the guarantee agreement of this case and the reasons why the limit amount was entered in the letter of guarantee of this case in detail and confirmed the facts as to whether the limit amount was determined between Nonparty 1 and Nonparty 1. Accordingly, it should have determined the status of the guarantor of the guarantee of this case and whether the guarantee amount was inherited. However, in the continuous guarantee contract of this case where the guarantee amount was determined as the guarantee amount, the court below erred in the misapprehension of legal principles as to the establishment of confession, which led to the failure to exhaust all necessary deliberations or misconception of facts contrary to the rules of evidence, which affected the conclusion of the judgment. The ground for appeal to the same purport is with merit

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)