(영문) 서울고등법원 2017.05.17 2016나2069780

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(영문) 서울고등법원 2017.05.17 2016나2069780

채무부존재확인

Text

1. All appeals filed by the Plaintiff (Counterclaim Defendant) against the instant principal lawsuit and counterclaim are dismissed.

2. The costs of appeal shall be the principal lawsuit.

Reasons

1. The grounds for appeal by the plaintiff citing the judgment of the court of first instance are not significantly different from the allegations in the court of first instance, and the fact-finding and decision of the court of first instance are justified even if the evidence submitted in the court of first instance

Therefore, the reasoning of the judgment of this court is as follows, except for adding the judgment as described in paragraph (2) to the argument that the plaintiff added or emphasized by this court, and therefore, it is identical to the reasoning of the judgment of the first instance.

2. Additional determination

A. (i) The obligation to be borne by the Plaintiff under the instant letter of undertaking on the assertion that the Plaintiff did not obtain the Plaintiff’s consent on the change of the primary debtor is jointly and severally guaranteed by the lessee C.

However, as the lessee changed substantially from July 7, 2014 to B, the principal obligor stated in the instant undertaking was changed, the Defendant notified the Plaintiff of the change of the principal obligor and obtained consent from the Plaintiff on the change of the principal obligor. There was no such procedure.

Therefore, the Plaintiff is not obligated to perform the joint and several debt obligations under the instant letter of undertaking.

According to the evidence No. 2, the plaintiff's obligation to pay rent, management fee, and obligation to restore to the original state borne by the plaintiff under paragraph (1) of the letter of undertaking of this case shall be jointly and severally liable, and it shall be also maintained as it is to the lessee or the plaintiff's transferee. According to the above facts, it is reasonable to view that the plaintiff agreed on November 1, 2013 of the lease agreement of this case to guarantee jointly and severally the obligation to pay rent, etc. that the lessee and the transferee of the lessee bear to the defendant.

Therefore, even if the lessee of the instant lease agreement was changed from July 7, 2014 to B, the Plaintiff on November 2013.

참조조문

-민사소송법 제420조

유사 판례

-서울고등법원 2017.09.14 2017나2010037

-대법원 1999. 10. 22. 선고 98다22451 판결

-대법원 2018.07.11 2018다200518

-수원지방법원 안산지원 2017.01.19 2016가합7637

-제주지방법원 2015.06.26 2013가단20570