[1] The purpose of Article 3 (1) of the Special Act on the Protection of Guarantors is to request a document stating the name and seal or signature of the guarantor in the expression of guarantee, and whether the standard and document prepared to determine whether the above method has been complied with is required to include the words “sureties” or “guaranteed” in the expression of guarantee (negative)

[2] In a general guarantee where the guarantor has expressed his/her intent to guarantee by signing and sealing or signing the certificate of credit on the confirmed principal obligation, whether the requirements under the former part of Article 4 of the Special Act on the Protection of Guarantee of Guarantee of Secrecy, which requires that the maximum amount of the guaranteed obligation be specified in writing, are satisfied (affirmative in principle)

[1] Article 3(1) of the Special Act on the Protection of Surety" provides that "a guarantee shall take effect upon a written statement with the name and seal or signature of the guarantor." The expression of intent of guarantee requires a document with the name and seal or signature of the guarantor. On the other hand, more clear means of confirmation as to the existence and content of guarantee is guaranteed, and on the other hand, the guarantor seeks to provide a guarantee as a result of deliberation and resolution without leading the guarantor to the extent possible to the extent possible. Therefore, as to the expression of intent of guarantee, the general legal principles as to the interpretation of legal acts are applied, but the above legal provisions shall be determined in accordance with the above purport. Further, in determining this, it shall be determined in accordance with the above purport. In full view of the contents and form of the written statement, the process or form leading to the guarantee, the type or content of the principal obligation, the relationship between the parties, and the contents and quantity of the previous transactions. Thus, it is reasonable to consider the fact that the above legal provisions merely requires a written statement or written guarantee."

[2] The former part of Article 4 of the Special Act on the Protection of Guarantor requires that “where a guarantee contract is concluded, the maximum amount of the guaranteed obligation be specified in writing.” This is understood to have been set up in accordance with the excessive provision of Article 3(1) of the above Act so that the guarantor can estimate in advance the main amount of the legal burden he/she owes in guaranteeing the guarantor. Therefore, in the case of a general guarantee in which the guarantor expresses his/her intent to guarantee in the form of name and seal or signature and seal or signature and in which case the amount of the principal obligation owed by the principal obligor is clearly stated in the document, the requirements in the former part of Article 4 of the above Act shall be deemed to have been duly satisfied, and other subordinate obligations such as interest or delay damages shall not be required to separately specify the amount.

[1] Article 3 (1) of the Special Act on the Protection of Suretys / [2] Article 4 of the Special Act on the Protection of Suretys

Tetra Korea Co., Ltd.

Defendant (Attorney Park Young-hoon et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2012Na8437 Decided February 7, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 3(1) of the Special Act on the Protection of Guarantor provides that “A guarantee shall take effect upon the document with the name and seal or signature of the guarantor’s signature and seal or signature.” The expression of intent to guarantee is clearly indicated and thus, a more clear means of confirmation is guaranteed as to the existence and content of the guarantee, and on the other hand, the guarantor seeks to provide a guarantee as a result of deliberation and resolution without entering into a decent guarantee as much as possible. Therefore, the general legal principles on the interpretation of legal acts are applied to the expression of intent to guarantee, but further, the determination shall be in accordance with the above purport. In determining this, it shall be made in full view of the contents and form of the written statement, the system or form of the principal obligation resulting from the guarantee, the type or content of the principal obligation, the relationship between the parties, and the contents and quantity of the previous transaction. Thus, it is reasonable to consider the fact that the above provision merely requires a written guarantee or document stating that “A certain intent of guarantee is expressed.”

Meanwhile, the former part of Article 4 of the above Act requires that “the maximum amount of the guaranteed obligation shall be specified in writing when a guarantee contract is concluded.” This is understood to enable the guarantor to estimate in advance the main contents of the legal burden he/she bears in providing the guarantee in accordance with the excessive provision of Article 3(1) of the above Act. Therefore, in cases of a general guarantee in which the guarantor expresses his/her intent to guarantee in the manner of signing and sealing or signing the bond certificate concerning the established principal obligation, if the amount of the principal obligation is clearly stated in the document, then the requirements in the former part of Article 4 of the above Act are legally satisfied, and it is not required that the amount of the principal obligation should be specified separately for the subordinate obligation such as interest or delay damages, barring any special circumstances.

2. The lower court determined as follows.

A. First, the lower court acknowledged the following facts.

① On March 31, 2010, LSS industry (hereinafter “Nonindicted Company”) borrowed KRW 5 million from the Plaintiff, and prepared and delivered a document stating that, in addition to the intent of the loan, the Plaintiff will make the total sum of KRW 10,500,000 and KRW 9,500,000,000,000,000,000 for the previous loan and KRW 1,4.5 million, to the Plaintiff by April 10, 2010.

② The Defendant used Nonparty 1, the representative director of the Nonparty Company, in the position of director of the Nonparty Company, and took part in the overall management of the Nonparty Company, including business and financing, while taking advantage of the position of director of the Nonparty Company. At the Plaintiff’s loan of KRW 5 million, Nonparty 2, the representative of the Plaintiff, at the Plaintiff’s above loan of KRW 5 million, was an unpaid debt of the Nonparty Company, and the Defendant, at the request of Nonparty 1, made an additional loan of KRW 5 million to Nonparty 2, who was the representative of the Plaintiff, and the Defendant, at the above request of Nonparty 1, entered his name on the right side

B. Furthermore, in full view of the above facts, the court below determined that the defendant signed the above loan certificate with the intent to guarantee the debt of the non-party company with the total amount of KRW 24.5 million.

In addition, the court below rejected the defendant's assertion that the above loan certificate is invalid because the defendant's intent of guarantee is not indicated and the maximum amount of guarantee is not specified, and it violates Articles 3 (1) and 4 of the Special Act on the Protection of Guarantee, and thus it is invalid, on the ground that the defendant signed the above loan certificate with the intent to guarantee, and as seen above, the defendant signed the above loan certificate with the intent to guarantee, and "the maximum amount of the defendant's guarantee obligation is the amount of debt such

Therefore, the lower court determined that the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 20% per annum from September 29, 2011 to the day of full payment, which is the day following the day when the original copy of the instant payment order was served on the Plaintiff, to the day of full payment.

3. Examining the records in light of the aforementioned legal principles, we affirm the judgment below’s finding of facts and determination as just. Contrary to the allegations in the grounds of appeal, there were no errors by recognizing facts contrary to logical and empirical rules, or by misapprehending the legal principles as to Articles 3(1) and 4 of the Special Act on the Protection of Guarantee and the Declaration of Intention of Guarantee and the Protection of Guarantee.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)