[1] The validity of the appropriation of agreement in a case where there are obligations guaranteed by the guarantor among multiple obligations and obligations not so agreed upon

[2] The case holding that the guarantor is liable for the guarantee if the agreed appropriation of the content that the first repayment of the obligation that the due date first arrives is not considerably unfair or contrary to the good faith principle, and as a result, if the obligation guaranteed by the guarantor remains, the guarantor is liable for the guarantee

[1] Articles 428 and 476 of the Civil Act / [2] Articles 428 and 476 of the Civil Act

Aju Industry Co., Ltd. (Law Firm Song Hun, Attorney Jeong-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Soo-soo, Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na8920 Decided June 8, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance as cited by the court below, the defendant, on or around December 2006, supplied 2,295,84 above 544 ground-based building construction (hereinafter "the construction of this case") to the defendant's comprehensive construction company for Hanam-si (hereinafter " Hanam-si") for the construction cost of 2,295,845,00, and the plaintiff entered into a contract with Hanam-si to supply ready-mixed to the plaintiff at the construction site of this case for the supply of ready-mixed. The defendant guaranteed the obligation to pay for Hanam-si containers to the plaintiff at the construction site of this case. The plaintiff, on or after January 25, 2007 through October 27, 2007, supplied 127,199,660 won for the construction work of this case to the defendant's comprehensive construction site of this case with no agreement between the plaintiff and the defendant's final construction site of this case.

However, this decision of the court below is not acceptable for the following reasons.

In the event that there are several obligations secured by the guarantor and other obligations that are not so debt, there is no ground to view that the obligee and the debtor should first repay the obligations owed by the guarantor when the obligee and the debtor agree on the appropriation, and the obligee and the debtor can determine how to appropriate the obligations provided in accordance with the freedom of contract doctrine. However, when such appropriation is remarkably unfair to the guarantor and is contrary to the good faith principle, the effect of the appropriation can be denied.

According to the reasoning of the judgment below and the evidence adopted by the court below, the plaintiff agreed to pay the price of ready-mixed within 90 days after the plaintiff's request for the payment of the price of ready-mixed. Since the plaintiff supplied ready-mixed at the construction site from November 24, 2003 to December 14, 2006, the plaintiff supplied two kinds of construction sites, including the supply of ready-mixed at the construction site at the same time, and the payment of the price of ready-mixed at the construction site at the same time, and the defendant supplied ready-mixed at several construction sites, such as Han-dong, Marin, 2, 2007, the obligation of the guarantor to pay the price of ready-mixed at the construction site at the latest, or the obligation of the defendant to pay the price of the construction to the plaintiff at the construction site at the latest because it is obviously contrary to the existing construction contract at the construction site at the construction site at the latest. The plaintiff's obligation to pay the price of ready-mixed at the construction site at the latest.

Nevertheless, the court below erred in the misapprehension of legal principles as to the validity of the agreed appropriation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)