In a case where there is an agreement between the obligee and the obligor on the satisfaction of the obligation, whether the obligor may apply for the satisfaction of the obligation differently from such agreement (negative)

If there is an agreement between the obligee and the obligor on the satisfaction of an obligation in advance, and the content of the agreement is insufficient to extinguish all the obligation to the obligee, the obligee’s satisfaction order and method as deemed appropriate, and as long as the obligee has performed performance in accordance with the order and method deemed reasonable by the obligee in accordance with the above agreement, the appropriation is effective. Thus, in a case where there is a separate agreement on the satisfaction of an obligation in advance, the obligee’s satisfaction of an obligation shall be appropriated in accordance with the order and method as deemed reasonable by the obligee. Thus, even if the obligor’s satisfaction of an obligation is designated as prior to the above agreement, unless the obligee explicitly or explicitly gives consent thereto, the designation is null and void

Article 476 of the Civil Act

Supreme Court Decision 84Meu1324 Decided March 24, 1987 (Gong1987, 701) Supreme Court Decision 90Da18678 Decided July 23, 1991 (Gong1991, 2220) Supreme Court Decision 91Da17092 Decided December 10, 1991 (Gong192, 480)

The bankruptcy trustee and the non-party other than the non-party who are the bankruptcy trustee of the Dong Bank, the bankruptcy trustee of the Dong Bank.

Defendant (Attorney Cho Jae-tae, Counsel for the defendant-appellant)

Seoul District Court Decision 97Na55194 delivered on May 21, 1998

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

We examine the grounds of appeal.

1. On the first ground for appeal

If there is an agreement between the obligee and the obligor on the satisfaction of an obligation in advance, and the content of the agreement is insufficient to extinguish all the obligation to the obligee, the obligee’s performance is to be appropriated in the order and manner that the obligee considers appropriate, in accordance with the order and method that the obligee considers appropriate, and as long as the obligee has made an application for the satisfaction of an obligation in accordance with the order and method that the obligee considers appropriate (see, e.g., Supreme Court Decision 90Da18678, Jul. 23, 191). Thus, if there is a separate agreement on the satisfaction of an obligation in advance, the obligor is to be appropriated for the repayment of a specific obligation, unlike the above agreement, and the designation is not effective unless the obligee explicitly or implicitly agrees to it, and it is not extinguished because the obligation designated by the obligor is performed.

In the same purport, the court below determined that the non-party company's principal debtor under the payment guarantee agreement (the non-party company) and the non-party company's joint and several surety are the basic terms and conditions for loans to the plaintiff, including the above payment guarantee transaction agreement, and the order and method of satisfaction of obligations as stated in the plaintiff's credit settlement agreement as stated in its reasoning. The plaintiff received 2,570,000 won from the non-party company on February 25, 1997 from the non-party company's repayment of 2,570,000 won and the above amount was insufficient to extinguish the non-party company's repayment of obligations, and it was just for the non-party company to appropriate 1,32,00,000 won in the order of 0th of the above payment guarantee agreement and the defendant's 10th of the above 40th of the above 30th of the above 4th of the above 30th of the above 30th of the above 4th of the above payment guarantee agreement.

The defendant's ground of appeal on this part is without merit.

2. On the second ground for appeal

A. According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the plaintiff's debt of this case was extinguished first out of the debt arising after May 8, 1995 out of the debt under the bill transaction agreement dated August 26, 1994, which was paid by the non-party company in the order of debt appropriation in order of the above credit settlement regulations, even if the plaintiff appropriated the above debt to the non-party company in the order of debt appropriation in accordance with the above credit settlement regulations, the above debt of this case is included in the secured debt of the right to collateral security which was disposed of by the non-party company in order to raise the above debt, while the debt of this case is not included in the secured debt and it was generated by the defendant's joint and several guarantee. Thus, it cannot be viewed as in violation of the above credit settlement regulations, since the plaintiff's credit settlement regulations are disadvantageous to the plaintiff due to the above order of debt preservation liability and degree or difficulty of disposition, the plaintiff's claim that the above debt payment was made in preference to the above debt payment agreement of this case.

B. In light of the records, since the right to collateral security established by the plaintiff with respect to the above collateral is recognized as a comprehensive collateral security, barring any special circumstance, the debt of this case shall be deemed as included in the secured debt. It cannot be deemed that the debt of this case was excluded from the secured debt of the above secured collateral solely on the ground that the defendant requested additional collateral upon the request of the plaintiff due to lack of existing collateral such as the above comprehensive collateral security at the time of the payment guarantee transaction agreement which caused the occurrence of the debt of this case as stated in the judgment below. Thus, the court below erred by misapprehending the legal principles as to the scope of the secured debt of this case, or by misapprehending the scope of the secured debt of this case.

However, Article 13 of the Plaintiff’s Credit Adjustment Regulations provides for the order of appropriation of debt to the provisions of paragraphs (1) through (5), and Paragraph (6) provides that the application of the provisions of paragraphs (3) through (5) is disadvantageous to the preservation of debt in the order of priority pursuant to the above paragraphs (3) through (5), since the Plaintiff may change the order of appropriation of debt in the order of paragraphs (3) through (5) where it is necessary to preserve debt pursuant to the above provisions, and the Plaintiff can find out the fact that the above money received from the non-party company was appropriated for the repayment of debt under the above bill transaction agreement prior to the repayment of debt in the case of this case, and therefore, the repayment of debt in this case does not result from the exercise of security right. Thus, the Plaintiff’s debt is justified.

Therefore, even if the judgment of the court below on the order of appropriation of the above error was erroneous by mistake of facts as seen earlier, the above additional judgment does not affect the conclusion of the judgment, and eventually, the defendant's allegation in this part of the grounds of appeal is without merit.

3. 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 Lee Im-soo (Presiding Justice)