Whether a guarantor of the confirmed obligation bears the guaranteed obligation even if the due date for the obligation is extended (affirmative in principle), and where there is a special agreement that the guarantor's consent is necessary for the existence of the guaranteed obligation when the due date for the obligation is extended, the time and method of consent

A guarantor who guaranteed a certain obligation with respect to a certain fixed obligation, regardless of whether the term of performance for the guaranteed obligation has been extended without the consent of the guarantor, is in principle liable for the guaranteed obligation. However, the agreement shall be followed, if there is a special agreement between the parties to the effect that the guaranteed obligation will continue to be guaranteed only when the term of performance for the guaranteed obligation has been extended with the consent of the guarantor. In such a case, the guarantor’s consent to an extension of the term of performance for the purpose of continuing the guaranteed obligation refers to the intent to discharge the guaranteed obligation with respect to the principal obligation whose term of performance has been extended, and as long as the above intent includes, the consent can be made by means of implied declaration of intent as well as

Article 428 of the Civil Act

Supreme Court Decision 2005Da9326 Decided June 14, 2007

K&C Co., Ltd. (former Trade Name: C&C Corporation)

Defendant (Attorney Lee Dong-sik, Counsel for defendant-appellant)

Seoul High Court Decision 2009Na44572 decided September 24, 2009

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Upon admitting the judgment of the court of first instance on June 30, 2005, the court below concluded a credit transaction agreement with the mutual savings bank of the court below to grant loans of KRW 1.688 million to the joint defendant corporation corporation (hereinafter referred to as the "Doidephone") on June 30, 2006 (hereinafter referred to as the "the loan of this case"), and recognized the fact that the defendant, the representative director of the Doidephone, guaranteed the loan of this case on June 30, 2006 and carried out the loan of this case. Further, at the time of the agreement that the above savings bank and the principal debtor Doidephone were to extend the payment period on June 30, 2006 to the extension on August 30, 2006, the court below rejected the defendant's objection to the purport that the defendant was aware of the extension of the payment period as the representative director of the Doidephone, and on this basis, the defendant did not know that the payment period of the loan of this case was due and did not know.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its determination by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. A guarantor, who guaranteed a certain obligation, bears the guaranteed obligation regardless of whether the term of the guaranteed obligation has been extended without the consent of the guarantor. However, if there is an agreement between the parties to the effect that the guaranteed obligation continues to be guaranteed only when the term of the guaranteed obligation has been extended with the consent of the guarantor, such agreement shall be complied with (see, e.g., Supreme Court Decision 2005Da9326, Jun. 14, 2007). In this case, the guarantor’s consent to an extension of the term of the guaranteed obligation that is necessary to continue to maintain the guaranteed obligation refers to the intent to pay the guaranteed obligation to the principal obligation whose term of the guaranteed obligation has been extended, and as long as the term includes the above intent, the consent can be seen as not only before the term of the guaranteed obligation has been extended, but also after the extension of the term of the term of the guaranteed obligation, and

After finding the facts as stated in its holding, the court below determined that the term of Article 9 of the terms of this case is reasonable to be interpreted as a special contract with the effect that if a financial institution extends the repayment date of the principal obligation without the consent of the guarantor, the guaranteed obligation will expire upon the expiration of the repayment date, but (2) the defendant was aware of the extension of the payment period for the loan of this case, and thereafter, on December 27, 2007, as a joint guarantor for the loan of this case who acquired the loan of this case from the above savings bank from the plaintiff who acquired the loan of this case from the above savings bank as the joint guarantor for the loan of this case, "the plaintiff still fails to meet the terms of the loan of this case (the general loan of this case, loan of this case, loan balance 1,697,417,847, June 30, 2005, and repayment date of the loan of this case which the plaintiff acquired from the above savings bank, and the defendant's obligation of joint and several guarantee still did not continue to meet the terms of this case.

Examining the reasoning of the judgment below in light of the above legal principles, it is interpreted that the Defendant, the guarantor, has consented to the extension of the payment period, as the guarantor, to repay the loan obligation of this case as extended on August 30, 2006 as the repayment period set by the Defendant’s contract of this case. Therefore, it is reasonable to view that the Defendant continues to bear the guarantee obligation for the loan obligation of this case, the payment period of which has been extended notwithstanding the above contract provisions

Therefore, although the reasoning of the judgment below is partially insufficient, the judgment below did not err in the misapprehension of legal principles as to the existence and interpretation of expression of intent, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

The Defendant asserts that the lower court erred by misapprehending that the Defendant, the representative director of the instant main obligor, was excluded from the scope of the guarantor subject to protection under Article 9 of the Terms and Conditions of this case, thereby violating the legal doctrine on the general standard of interpretation of the Terms and Conditions.

However, examining the reasoning of the judgment below, the court below does not seem to have limited interpretation of the scope of guarantor under Article 9 of the Clause of this case as alleged by the defendant. Thus, this part of the ground of appeal is based on the erroneous premise and cannot be accepted

4. Conclusion

Therefore, the appeal is dismissed, and the 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 Shin Young-chul (Presiding Justice)