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1. The part against the defendant in the judgment of the first instance shall be revoked;
2. The plaintiff's claim against the defendant is dismissed in entirety.
Reasons
Facts of recognition
Co-Defendant A corporation in the first instance trial (hereinafter “A”) entered into a credit guarantee agreement with the Plaintiff on March 23, 201 (hereinafter “credit guarantee agreement”) with the amount of KRW 595,00,000,000, and then borrowed KRW 700,000 from the National Bank. ② On May 30, 2011, it entered into a separate credit guarantee agreement with the amount of KRW 399,50,000 (hereinafter “the second credit guarantee agreement”) and then borrowed KRW 470,000 from the Industrial Bank of Korea.
Co-Defendant B of the first instance trial (hereinafter referred to as “B”) jointly and severally guaranteed the obligation to be borne by A to the Plaintiff according to the aforementioned credit guarantee agreement.
Article 12 of the above Credit Guarantee Agreement provides that, if a plaintiff performs a guaranteed obligation, the principal debtor and the joint guarantor shall pay the amount of the guaranteed obligation and the amount of the guaranteed obligation in advance to the date of full payment of the guaranteed obligation (12% per annum from December 1, 2012 to the date of full payment of the guaranteed obligation) calculated by the plaintiff (12% per annum from the date of full payment of the guaranteed obligation), (2) penalty, and other expenses incurred in the procedure for preserving the principal obligation, etc. shall be repaid; (3) Article 8(1) provides that the principal debtor may pay the guaranteed obligation in advance without notification or peremptory notice to the principal debtor and the joint guarantor (Article 9).
On April 29, 2013, the Plaintiff’s subrogation caused an insured incident upon A’s delay of performance of the guaranteed obligation by the said bank. On August 21, 2013, the Plaintiff paid, respectively, KRW 405,90,59 to the Bank of Korea on September 9, 2013, the principal and interest of loan KRW 604,67,324, and ② to the National Bank of Korea on August 21, 2013.
The Plaintiff recovered from A on August 21, 2013 KRW 1,996,350, and appropriated it for the repayment of the principal of the claim for indemnity under the first credit guarantee agreement. Accordingly, the principal of the claim for indemnity under the first credit guarantee agreement shall be 602,680,974.