(a) Where a guarantor who has effected performance in excess of the share incumbent on him exercises the right of recourse against another guarantor, whether or not such guarantor may claim the effect of provisional seizure effected by the creditor;

B. In the case above, whether the guarantor who performed the obligation can contest the application for cancellation of provisional seizure due to changes in the circumstances of other guarantor.

A. Where there are several guarantors, one of them may exercise the right of indemnity against the other guarantors when he has performed the obligation in excess of the share of his own expense. Within the scope of his right of indemnity, claims held by the previous obligees and the rights relating to the security are naturally transferred to the person effecting the obligation. In case where the creditor has received a decision of provisional attachment against the property of a joint guarantor, the person effecting the obligation who subrogated to the creditor as to the preserved right may execute the provisional attachment upon being granted the succeeded execution clause pursuant to Article 708(1) of the Civil Procedure Act if the creditor is the successor of the creditor, and even if the execution clause has not been granted, he may claim for the benefit of preservation based on the provisional attachment even if the execution clause was not granted.

B. In the above case, the guarantor who has performed the obligation shall be deemed to exercise the right to be preserved for provisional seizure held by the creditor against another joint guarantor within the scope of the right to reimbursement. Thus, the guarantor who has succeeded to the status of the provisional seizure shall not contest an application for revocation of provisional seizure due to changes in circumstances of other joint guarantors, because the provisional seizure does not constitute a right to the security to be transferred in the case of subrogation, or the creditor who has performed the right to be preserved for provisional seizure as a result of a transfer to the guarantor who has performed the obligation to be preserved for provisional seizure,

A. Article 448(2)(b) of the Civil Act; Article 425(c) of the same Act; Article 482(1) A. Article 708(b) of the Civil Procedure Act

A. Supreme Court Decision 90Da20244 delivered on October 22, 1991 (Gong1991, 2797)

Claimant (Attorney Seo-sung et al., Counsel for defendant-appellant)

Bank of Korea

Attorney Lee Jae-ho, Counsel for the Korea Technology Credit Guarantee Fund

Busan High Court Decision 91Na16655 delivered on July 3, 1992

The judgment of the court below is reversed.

The case is remanded to Busan High Court.

1. Summary of the reasoning of the judgment below

On November 20, 190, the court below held that the respondent extended 113,40,00 won to the applicants under the above provisional attachment against the above applicants, and that there was a claim of 114,174,573 won as of January 26, 1991 for the above applicants, with the exception of 190.1.20, the above respondent's right to reimbursement of 20,000 won to the obligees under the provisional attachment against the above applicants, and that there was a defect in the provisional attachment application against the applicants as well as the claim of 114,174,573 won as of January 26, 1991 to the Busan District Court. The above court accepted the request by the respondent for provisional attachment against the above applicants, the respondent did not have the above 200,000,000 won and the amount of 200,000 won and 100,000 won which are the above obligees's claim for reimbursement against the obligees under provisional attachment.

2. Judgment on the ground of appeal No. 1 by the intervenor's attorney

Of the loans 200,00,000 won lent by the respondent to the person other than the above applicant for provisional seizure, the judgment of the court below that the respondent applied for provisional seizure of this case in order to preserve the execution of the remaining principal 100,000,000 won excluding the loans 50,000,000 won as credit guarantee by the defendant and the remaining principal excluding the loans 50,000,000 won and its interest excluding the loans 113,40,000 won and its interest 774,573 won in total is not consistent with the reasoning of the court below's decision that there is no difference between the above facts and 14,174,573 won in the amount of loans excluding the loans 114,573 won in addition to the loans 10,000 won and 200 evidence excluding the above facts excluding the loans 200,000 won excluding the loans 200,000,00 won.

The court below should have reviewed the scope of the obligation guaranteed by the intervenor and the applicant against the respondent, and whether the joint guarantee was made as well as the scope of the obligation guaranteed by the intervenor and the applicant, and their share of the burden. After examining the above, the court below should have reviewed whether the obligation owed by the intervenor to the respondent is included in the preserved right of the provisional seizure of this case.

Nevertheless, the court below, based on the above evidence, recognized that the right to be preserved for the provisional seizure of this case was remaining claims except that the intervenor guaranteed and repaid by the intervenor. Thus, the court below did not err in finding facts without any evidence, and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point this out.

3. Determination on the ground of appeal No. 2

Where there are several guarantors, one of them may exercise the right to demand reimbursement against the other guarantors if he has performed the obligation in excess of the share of his own expense (Article 448(2) and Article 425 of the Civil Act). The claim held by the previous obligees within the scope of the right to demand reimbursement and the right to collateral are naturally transferred to the person performing the obligation (Article 482(1) of the Civil Act). In a case where the creditor has received a decision of provisional seizure as to the property of a certain joint guarantor, the person subrogated to the creditor of the right to be preserved may execute provisional seizure by obtaining succession execution clause in accordance with Article 708(1) of the Civil Procedure Act as the successor of the creditor, if the provisional seizure is executed before the provisional seizure is executed. Even if the above succession execution clause is not granted, it shall be deemed that the creditor may claim for the benefit of preservation by the provisional seizure for himself.

In this case, if the intervenor and the applicant have repaid the above debt to the respondent in excess of their own share of debt against the respondent, the intervenor can exercise the respondent's right to be preserved for the provisional seizure of this case which the respondent had against the applicant within the scope of his right to demand reimbursement against the applicant. Thus, the provisional seizure does not constitute a right to be transferred in the case of subrogation, or the respondent, the respondent, as the result of the intervenor's transfer of the right to be preserved for the provisional seizure, loses the right to be preserved within the scope of the respondent, shall not be deemed to be able to dispute the request for revocation of the provisional seizure of this case by the plaintiff who succeeded to the status of the provisional seizure creditor.

Nevertheless, the court below rejected the intervenor's assertion that the provisional seizure of this case should be maintained solely for the reasons as determined by the court below and maintained the court of first instance that accepted the applicant's request for revocation of provisional seizure. Thus, the court below did not err by misapprehending the legal principles as to the effect of subrogation due to repayment or the revocation of provisional seizure due to changes in circumstances, and it is clear that such illegality has affected the judgment. Thus, there is a reason to point this out.

4. Therefore, the judgment of the court below is reversed, and 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 Yoon-young (Presiding Justice)