[1] Whether a joint and several surety for the surety to be liable by the principal obligor bears the same obligation as that of the principal obligor (affirmative in principle)

[2] The case holding that the court below erred in the misapprehension of legal principle in a case where the court below's judgment that the above litigation costs cannot be claimed against the joint guarantor, in a case where Gap's housing guarantee company entered into a warranty contract for the defects of Eul's apartment and Byung's apartment and agreed that Eul shall be reimbursed for all incidental obligations such as the amount paid by Eul to the guarantee creditor and the litigation costs, and Jung's joint and several liability was jointly and severally guaranteed against Eul's guarantee creditor; Byung's council of occupants' representatives of Byung's apartment units became final and conclusive as substitution for the conciliation

[1] Articles 428, 429, and 441 of the Civil Act / [2] Articles 105, 428, 429, and 441 of the Civil Act

Korea Housing Guarantee Co., Ltd. (Law Firm U&A, Attorneys Cho Yong-soo et al., Counsel for the defendant-appellant)

Defendant (Attorney Jin-jin et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Na10213 decided December 16, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Based on its adopted evidence, the court below concluded a contract for the warranty of defects on May 14, 1998 with the non-party 2, 199, the provisional attachment contract with the non-party 1, 207, the provisional attachment contract for the apartment (hereinafter "the apartment of this case") as to the apartment of this case ("the apartment of this case"), and decided not only the amount the plaintiff paid to the guarantee creditor but also the plaintiff's substitute payment, the legal procedure expenses paid by the plaintiff, and the litigation expenses. The defendant, non-party 1, and 2, etc. jointly guaranteed the liability for indemnity against the plaintiff of this case. The council of occupants' representatives of this case, on May 23, 2006, filed a lawsuit against the non-party 1, 2006, 8796, the Seoul Southern District Court's 200, 2009Na1235 (the plaintiff's "the plaintiff and the 201, 2010, 2005, 2016, respectively.

Furthermore, the lower court determined that each of the amounts listed in the [Attachment 9] Nos. 9 and 14 of the lower judgment was a litigation cost related to the above Seoul High Court case 2009Na122335 (former), and that the decision in lieu of the conciliation of each of the costs of litigation in the above case becomes final and conclusive, and that each of the amounts listed in the [Attachment 6] Nos. 6, 11, and 21 of the lower judgment lost against the Plaintiff was already final and conclusive, on the grounds that the above Cheongju District Court 2009Kahap894 of the Provisional Attachment No. 2011Kadan20138 of the Seoul Central District Court and the decision to pay the Plaintiff for the litigation cost

2. However, it is difficult to accept the above determination by the court below for the following reasons.

(a) Where the primary debtor guarantees jointly the liability for indemnity to be borne by the guarantor upon the performance of the surety obligation, the joint guarantor shall bear the same obligation as the primary debtor unless there are special circumstances;

First, according to the reasoning of the judgment below and the evidence duly admitted by the court below, the council of occupants' representatives of the apartment in this case filed a lawsuit against the plaintiff seeking 988,321,856 won and damages for delay thereof, but the decision in lieu of conciliation was finalized by August 16, 2010 as the plaintiff paid 350,000 won to the council of occupants' representatives until August 16, 2010. The litigation expenses paid by the above appellate court reveal the fact that the council of occupants' representatives, the principal debtor, did not repair defects arising in the apartment in the apartment in this case.

In light of the above circumstances, the principal obligor, as the incidental debt stipulated in the defect liability contract, has the obligation to reimburse the Plaintiff with respect to the cost of lawsuit spent within the reasonable scope, and the Defendant, a joint guarantor, also bears the same obligation. Even if the decision in lieu of the adjustment of the cost of lawsuit between the council of occupants' representatives and the Plaintiff has become final and conclusive in the above appellate case, its effect merely arises between the council of occupants' representatives and the

B. Next, according to the reasoning of the lower judgment and the evidence duly admitted by the lower court, Nonparty 1, on December 23, 2009, filed a lawsuit against the Plaintiff for provisional attachment of KRW 280,49Kahap894, which was demanded by the Plaintiff on January 13, 2010, paid KRW 280,492,570, which was required by the Plaintiff on January 14, 2010, and paid KRW 7,43,540, including property investigation expenses, litigation expenses, taxes related to the registration of provisional attachment, and agent fees, which were required by the Plaintiff on January 14, 2010, the said court dismissed the Plaintiff’s application for provisional attachment of KRW 287,926,110, which was the full amount of indemnity requested by the Plaintiff on February 17, 201, on the ground that the Plaintiff’s claim that the provisional attachment of KRW 361,201, which was revoked on the ground that the Plaintiff’s claim that the provisional attachment of KRW 36136,2136,21,20.

In light of the fact that Nonparty 1 lost the Plaintiff on the ground that he brought a lawsuit on the objection of each of the above provisional seizure and repaid the amount of indemnity to the Plaintiff, as seen earlier, the litigation expenses incurred by the Plaintiff in the case of the above provisional seizure are disbursed to preserve the claim for advance reimbursement. As such, the litigation expenses incurred by the Plaintiff in the case of the above provisional seizure are the principal obligor, and the Defendant, a joint guarantor, also is the joint and several surety. Even if the Plaintiff lost in the case of each of the above provisional seizure and the Plaintiff was confirmed to bear the litigation expenses, its effect does not change merely because it occurs between the Plaintiff and Nonparty 1 in the relevant case.

C. Nevertheless, the lower court determined otherwise that the litigation costs cannot be claimed against the Defendant, a joint guarantor, solely on the ground that the Plaintiff’s burden of litigation costs became final and conclusive. The lower court erred by misapprehending the legal doctrine on the scope of the guaranteed obligation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. 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 Jo Hee-de (Presiding Justice)