Korea Housing Guarantee Co., Ltd. (Law Firm PPpex, Attorneys Lee Jae-won, Counsel for defendant-appellant)

Samyeong Construction Co., Ltd. and one other (Law Firm Gyeong & Yang, Attorney Kim Jong-young, Counsel for the plaintiff-appellant)

extreme Dongdong Co., Ltd. and one other

November 12, 2009

Seoul Southern District Court Decision 2007Gahap14163 Decided March 21, 2008

Seoul High Court Decision 2008Na46052 Decided March 25, 2009

Supreme Court Decision 2009Da32409 Decided August 20, 2009

1.The judgment of the first instance shall be modified as follows:

A. The Defendants shall jointly and severally pay to the Plaintiff the amount of KRW 854,74,897 and KRW 329,042,170 per annum from November 22, 1998 to October 20, 199; KRW 14% per annum from the following day to January 14, 2010; KRW 16% per annum from June 15, 1999 to September 14, 1999; and KRW 14% per annum from the following day to January 14, 2010; and KRW 20% per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims against the defendants are all dismissed.

2. Of the total litigation costs, 70% is borne by the Plaintiff, and 30% is borne by the Defendants, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendants shall be jointly and severally liable to the plaintiff; 2,757,287,058 won and 329,042,170 won among them, 6% per annum from November 22, 1998 to October 20, 1999; 14% per annum from the next day to the date of final service of the original copy of the payment order of this case; 20% per annum from the next day to the date of full payment; 20% per annum from the date of full payment to the date of full payment; 356,408,310 won from June 25, 1998 to the date of full payment; 756,408,310 won per annum from the next day to the date of full payment; 528,47,943 won from June 30, 198 to the date of full payment; 30% per annum from the date of full payment to the date of full payment; 194,199.3

2. Purport of appeal

The plaintiff: The judgment of the court of first instance shall be modified as follows. The defendants shall jointly and severally be 2,757,287,058 won to the plaintiff and 329,042,170 won among them, 6% per annum from November 22, 1998 to October 20, 1999; 14% per annum from the following day to the date of final delivery of the original copy of the payment order of this case; 20% per annum from the next day to the date of full payment; 20% per annum from the next day to the date of full payment; 30% per annum from June 25, 1998 to 756,408,310 won to the date of full payment; 329,47,943 won per annum from the following day to the date of full payment; 30% per annum from June 30, 198 to 19 to the date of full payment; 30% per annum from 19,949.19.3

The part of the judgment of the court of first instance against Defendant Samcyeong Construction, Defendant 2, and Defendant 2 is revoked, and the plaintiff's claim against the above Defendants corresponding to the revoked part is dismissed.

1. Basic facts

(a) Quotation of judgment of the first instance;

The reasoning for this part of the judgment by the court is as follows. A evidence No. 9 is added to the basis for recognizing the basic facts in Part 5, Section 4, and Section 4, Section 20, Section 5, Section 3, Section 4, Section 5, Section 5, Section 5, Section 8, Section 4, Section 420, Section 420 of the Civil Procedure Act is as follows.

B. The amended portion

D. Defendant Samung Construction Co., Ltd. (hereinafter “Defendant Samung Construction”) and Defendant Kudong Construction Co., Ltd. (hereinafter “Defendant Kudong Construction”) agreed on August 199 and around March 200 to take over the instant loans and the instant indemnity obligations against the Plaintiff in parallel with the Plaintiff’s consent and with the Plaintiff’s consent, and to perform them jointly and severally with the Plaintiff. Defendant 2 and 4 respectively jointly and severally agreed on each of the above obligations with Defendant Kudong Construction and Defendant Kudong Construction Co., Ltd. (hereinafter “Defendant Kudong Construction”).

2. Determination as to the cause of action

According to the above facts, the defendants are jointly and severally liable to pay to the plaintiff the loans of this case and the principal of the claims for reimbursement of this case and damages for delay, unless there are special circumstances.

3. Determination as to the defendants' assertion

C. Determination on the non-existence of the assumption of obligation agreement

Defendant Samsung Construction and Defendant 2 asserted to the effect that, since the Plaintiff’s seal is omitted in the overlapping debt acquisition contract proving that the overlapping debt acquisition contract was concluded between the Plaintiff and Defendant Samsung Construction, the said overlapping debt acquisition contract is not effective.

According to Gap evidence No. 1-1 (the counter-performance contract between the plaintiff and the above defendants), although the plaintiff's seal is omitted, it can be recognized that the plaintiff's house and the defendant Samsung Construction, which is the debtor, are affixed with the seal of the defendant Samsung Construction, which is the assumption of the obligation. Even though the above facts of recognition are the debtor, and even if the house and the defendant Samsung Construction are affixed with the seal, it is also recognized that the above facts of recognition are combined with the witness's testimony before the remand and the purport of the whole pleadings. In other words, the non-party who was the representative of the house, even though the non-party, who was the representative of the house, was the intention of having the apartment rental business where the house was in progress before August 199, with the intention of having the construction of the apartment house succeed, and the counter-party's share acquisition contract with the seal of the defendant Samsung Construction, the counter-party's debt acquisition contract with the plaintiff and the counter-party's debt debt acquisition contract with the above defendant's counter-performance contract with the above reasons.

D. Judgment as to the non-existence of board of directors resolution

Defendant Samsung Construction and Defendant 2 again asserted that an overlapping assumption of obligation is null and void inasmuch as Defendant Samsung Construction did not undergo a resolution of the board of directors when taking over the obligation to the Plaintiff of the housing, even though Defendant Samsung Construction did not undergo a resolution of the board of directors when taking over the obligation to the Plaintiff of the housing. However, as alleged by the aforementioned Defendants, there is no evidence as to the fact that the said Defendants knew or could have known such circumstance, and therefore, the said Defendants’ assertion is without merit, without examining the existence of the board of directors’ resolution.

E. Determination on the non-performance of the condition precedent

In addition, Defendant Samsung Construction and Defendant 2 made a condition that the aforementioned overlapping debt acquisition contract, including the Plaintiff, should be subject to the consent of the creditors of the Housing and Housing Bank and the Korea Credit Guarantee Fund to succeed to the apartment house rental business even through the assumption of obligation by the creditors of the Housing and Housing Bank, including the Plaintiff, and the Housing and Housing Bank and the Korea Credit Guarantee Fund. Ultimately, the above suspension condition was not fulfilled due to the opposition of the Korea Housing and Housing Bank and the Korea Credit Guarantee Fund, and thus, the above overlapping debt acquisition contract did not take effect. However, it is insufficient to recognize that the testimony of the non-party witness of the trial prior to the remand of the case was inherent in the above suspension condition in the above overlapping debt acquisition contract, and there is no other evidence to acknowledge it, the above assertion by

F. Determination on the grounds for extinctive prescription defense

(1) The defendants' objection to the statute of limitations

The defendants asserted that the plaintiff's credit of this case and the credit of this case were extinguished by the statute of limitations. Thus, although the term of repayment of the loan of this case had expired on October 20, 1999, the house lost the benefit of the term on November 20, 1998, according to the statements of Nos. 1 and 4, it is clear that the defendant SamGyeong Construction and the defendant 2 agreed to pay the amount of subrogated payment stated in attached Form 1 "the details of guarantee and statement of indemnity amount" among the credit of this case by 30 days from September 30, 199 to March 31, 201, the lawsuit of this case was concluded to have been divided into 97 days from September 30, 199 to 30 days from March 31, 201, and that the period of reimbursement of this case was 97 days from May 20, 2000 to 19 days from August 31, 2009.

(2) The Plaintiff’s second ground for interruption of extinctive prescription

On the other hand, it is reasonable to view that Defendant Samyeong Construction and Kudong Construction agreed to perform each of the above obligations jointly and severally with the house while taking over the loans of this case and the indemnity obligations of this case, and that Defendant 2 and Defendant 4 jointly and severally guaranteed each of the above obligations with the house. In light of the above circumstances and the circumstances leading up to the assumption of the obligation as seen earlier, it is reasonable to view that the joint and several liability relationship exists between Defendant Samyeong Construction and Kudong Construction, which is the assumption of the obligation, and between the housing and the debtor, which is the assumption of the obligation. Since Defendants 2 and 4 are in the joint and several liability relationship with each of the Defendant Samdong Construction and the Defendant Kudong Construction, and the joint and several liability relationship with the Defendant Kudong Construction, the interruption of the extinctive prescription due to a judicial claim against the house under Article 416 of the Civil Act extends to the entire Defendants.

In full view of the purport of the arguments in the statement No. 6-1 and No. 6-2, the plaintiff also filed a lawsuit against the housing, around November 2001, the Seoul District Court 2001Gahap68520, and around April 2005, the Seoul Southern District Court 2005Gahap5646, respectively, filed a lawsuit of indemnity claim No. 1 among the claim for indemnity amount of this case, and received a favorable judgment on May 14, 2002 and July 15, 2005. Each of the above judgments became final and conclusive around June 8, 2002 and around August 12, 2005. Accordingly, since both the debt of this case and the claim for indemnity amount of this case extended to the remaining part of the defendant's house, it cannot be recognized that the prescription period of the above part of the defendant's house cannot be interrupted by the interruption of the prescription period of the above part of the defendant's house construction as well as the defendant's joint and several surety.

[Attachment 2] After the date of the closing of argument in the trial after remand, the Plaintiff applied for a payment order against a house, building, etc. to claim the payment of the above bonds even before the expiration of the extinctive prescription period, and the payment order became final and conclusive, the Plaintiff filed an application for resumption of pleading in order to re-fight against the above bonds. However, despite the opportunity to make the aforementioned re-appeal in the litigation proceedings before remand, the above re-appeal that was asserted only after the closing of argument in the litigation proceedings in the trial after remand is the means of attack and defense during the real time period (see Supreme Court Decision 2003Da44387, 44394, Oct. 7, 2005). Thus, this court rendered a judgment without resumption of the date for pleading for the above re-appeal of the Plaintiff)

D. Sub-committee

Therefore, the Defendants are jointly and severally liable to the Plaintiff for delay damages of KRW 329,042,170; KRW 8,263,390; KRW 498,179,383; KRW 19,289,954; KRW 854,774; + KRW 854,70; + KRW 263,263,390 + KRW 498,179,383 + KRW 19,289,954; and KRW 329,000 per annum from the following day of the loan to October 22, 1998; and KRW 19,42,170; and the Defendants’ claims for delay damages of KRW 196 per annum from the following day of the loan to the 194.19.4% annual interest rate per annum; and the Defendants’ claims for delay damages of KRW 329,199; and the Defendants’ respective claims for delay damages of KRW 194, 194.19.3 per annum.45 per annum.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition and the remainder shall be dismissed. Since part of the judgment of the court of first instance against the plaintiff is unfair, the plaintiff's appeal against this part shall be accepted and it is so decided as per Disposition.

[Attachment]

Judges Hwang Jae-sik (Presiding Judge)