[1] Where the guarantor of the joint tortfeasor has repaid his/her obligation to compensate the surety, the scope of the right to indemnity against the other joint tortfeasor or the right to claim restitution of unjust enrichment

[2] The case affirming the judgment below rejecting the claim of the fidelity guarantor of the joint tortfeasor against the other joint tortfeasor or the claim of return of unjust enrichment against the other joint tortfeasor, and there is no part of the other joint tortfeasor's liability

[1] In a case where a person who has become a guarantor for a certain joint tortfeasor has repaid the obligation of the guarantor to compensate for damages, the guarantor may exercise the right to indemnity or the right to claim restitution for unjust enrichment against other joint tortfeasor who is not the guarantor. Therefore, in a case where the portion of the liability of the guarantor is all the joint tortfeasor and there is no portion of the liability of the other joint tortfeasor, the guarantor may not claim the reimbursement or the right to claim restitution for unjust enrichment against the other joint tortfeasor, and this is not different from the case of the guarantee

[2] The case affirming the judgment below which rejected the claim of the fidelity guarantor of the joint tortfeasor against the other joint tortfeasor or the claim of return of unjust enrichment against the other joint tortfeasor, on the ground that there is no part of the other joint tortfeasor

[1] Articles 447 and 760 of the Civil Act / [2] Articles 447 and 760 of the Civil Act

[1] Supreme Court Decision 92Da4871 delivered on January 26, 1993 (Gong1993Sang, 849), Supreme Court Decision 93Da32958 delivered on January 11, 1994 (Gong1994Sang, 695), Supreme Court Decision 94Da61410 delivered on September 29, 195 (Gong195Ha, 3611)

[Defendant-Appellant] Han Jin (Attorney Lee Jae-jin, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Park Jong-tae, Counsel for the plaintiff-appellant)

Daegu High Court Decision 95Na2907 delivered on September 27, 1995

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the above non-party 1 should be compensated for damages to the non-party 1's union's non-party 2 after being employed as the president on October 21, 1987, and the above non-party 2 should be compensated for damages to the above union for three years. The above non-party 2 should be compensated for damages as stated in its reasoning, and it is hard to find that the above non-party 2 should be compensated for damages to the above union's total amount of 131,859,939 after being provided with a disguised loan within the above period of fidelity guarantee, and it is hard to find that the above non-party 1 who is the standing director of the above union would obtain a disguised loan from the above non-party 1's union's non-party 2's non-party 1's non-party 2's funds and the above non-party 3's funds were not related to the above non-party 1'the above non-party 2's funds 9.

2. On the second ground for appeal

If a person who has become a guarantor for a certain joint tortfeasor has repaid the obligation of the guarantor to compensate for damages, the guarantor may exercise the right to indemnity or the right to claim the return of unjust enrichment against other joint tortfeasor who is not the guarantor. Therefore, if the part of the guarantor's liability guaranteed by the guarantor is all the joint tortfeasor and there is no part of the other joint tortfeasor's liability, the guarantor may not claim the reimbursement or claim the return of unjust enrichment against the other joint tortfeasor, which is not different from the case of the guarantee of good faith.

Based on the evidence of this case, the court below acknowledged that the above non-party 2, as the chief executive officer of the above union, has decided to use the funds of the union under the disguised loan for the purpose of raising its own business funds by using the status of approval as the chief executive officer, and ordered the working-level worker to prepare necessary loan documents and pass them to the defendant 1. Meanwhile, all of the loans were used for the personal purpose of the above non-party 2, and there is no profit to use them or obtain any profit from the loan. According to these facts, the above non-party 2 and the defendant 1 should bear all the liability for damages to the above union in the internal relationship between the above non-party 2 and the above non-party 1. Thus, the court below is just in holding that the above non-party 2 and the above non-party 2 are not liable for damages as joint tortfeasor by aiding and abetting the above non-party 2's disguised loan, and there is no error in the misapprehension of legal principles as to the plaintiff 1 and the defendant 2's claim for restitution of unjust enrichment.

In addition, even if the Plaintiff paid the full amount of damages of this case beyond the scope of liability as the guarantor of the Plaintiff, even though the scope of liability as the guarantor of the Plaintiff is less than the total amount of damages of this case, if the Plaintiff paid the full amount of damages of this case beyond the scope of liability as determined by the court below, it is merely that the Plaintiff paid the full amount of damages of this case as the guarantor of Nonparty 2, and if Defendant 1’s obligation to the above association is not paid as a third party, it is not possible for the Plaintiff to exercise the right to indemnity or the right to claim for restitution of unjust enrichment against Defendant 1 in relation to the repayment of the above excess amount. Thus, even if the court below did not separately decide on the Plaintiff’s assertion that the part exceeding the scope of liability as the guarantor of the Plaintiff’s fidelity, which exceeds

In the end, all arguments are 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 Yong-hun (Presiding Justice)