[1] The validity of a loan agreement made by lending a third party in the form under the mutual savings and finance company's understanding in order to avoid the lending limit to the same person under the former Mutual Savings and Finance Act (negative)

[2] The case holding that it constitutes an approval for the whole amount of a debt where an objective purpose is to repay a part of a debt which is a debt which is several non-performing loans, but a subjective intent was to repay a number of debts in whole

[1] In order to avoid the application of Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of Jan. 5, 1995) which limits the amount of loans to a same person, where a real principal debtor pays a third party to the amount of debts that he/she intends to actually borrow, and where a third party is prepared in the name of a third party under the intention not to assume the responsibility as a debtor for the third party with the understanding of the Mutual Savings and Finance Company, the third party is merely a person who lends only the name in the form, and the actual party to the loan contract is the mutual savings and finance company and the actual principal debtor, the loan agreement in the name of the third party is merely a legal act that constitutes a false conspiracy and thus constitutes a false conspiracy.

[2] The case holding that the debtor's act does not indicate the awareness that the debtor's act is a whole debt and does not have any specific debt, but does not indicate the concept that the debtor's act is a specific debt, in case where the debtor makes a settlement of accounts as if only the remaining debt remains, excluding a part of the creditor's actual debt, and the debtor makes a repayment with the knowledge that the remaining debt remains, and the debtor has been discharged with the knowledge that it is a whole debt excluded by the creditor, and even if the remaining debt has been presented as a result of the settlement, the debtor's act is naturally discharged, and it is not a specific debt, but a specific debt is not a part of the debt.

[1] Article 108 of the Civil Code, Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of Jan. 5, 1995) / [2] Article 168 subparagraph 3 of the Civil Code, Article 177 of the Civil Code

[1] Supreme Court Decision 96Da18076 delivered on August 23, 1996 (Gong1996Ha, 2847), Supreme Court Decision 98Da17909 delivered on September 4, 1998 (Gong1998Ha, 2394), Supreme Court Decision 98Da48989 delivered on March 12, 199 (Gong1999Sang, 657), Supreme Court Decision 92Da947 delivered on April 14, 1992 (Gong192, 1595) (Gong195Ha, 3622), Supreme Court Decision 95Da30178 delivered on September 29, 195 (Gong195Ha, 3622), Supreme Court Decision 2008Da308305 delivered on April 25, 200)

Hyundai Mutual Savings Bank

Defendant 1 and one other (Attorney Song Man-chul, Counsel for the defendant-appellant)

Jeonju District Court Decision 99Na543 delivered on October 18, 2000

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Jeonju District Court Panel Division. The appeal against Defendant 1 is dismissed. The costs of appeal between the Plaintiff and Defendant 1 are assessed against the Plaintiff.

We examine the grounds of appeal.

1. As to Defendant 1

In order to avoid the application of Article 12 of the former Mutual Savings and Finance Company (amended by Act No. 4867 of Jan. 5, 1995) which limits the amount of loans to a same person, where a real principal debtor pays a third party as a principal debtor with respect to the amount of debts that he intends to actually borrow to a same person, and where a third party is prepared with the intention not to be liable as a debtor with respect to the mutual savings and finance company, a third party is merely a person who lends only the name in the form, and the real party to the loan contract is a mutual savings and finance company and a real principal debtor, and thus a third party is merely a juristic act that constitutes a false conspiracy under the mutual savings and finance company’s understanding and without the intent to assume the liability (see Supreme Court Decisions 96Da18076, Aug. 23, 1996; 98Da48989, Mar. 12, 199).

After finding the facts in the judgment below based on the evidence adopted by the court below, the loan agreement between the plaintiff and defendant 1 is justified in accordance with the above legal principles, and there is no violation of law such as incomplete deliberation, lack of reasons, and misapprehension of legal principles as to false conspiracy as alleged in the grounds of appeal. The Supreme Court's decision which is cited in the grounds of appeal is inappropriate to be invoked in the case of this case, unlike the case.

2. As to Defendant 2

According to the reasoning of the judgment below, on June 11, 1993, Defendant 2 paid a sum of KRW 284,347,446 to the Plaintiff and repaid the remainder of the debt other than the instant debt, but the above Defendant and the Plaintiff recognized the fact that the said Defendant and the Plaintiff were to be mistaken for the Defendant’s actual repayment of all the Defendant’s debt to the Plaintiff including the instant debt. However, the above Defendant paid the above amount with the intent to repay all the Defendant’s debt which had not been repaid to the Plaintiff at the time of the above, and the Plaintiff also received the above amount with the same intent. Thus, the Plaintiff’s assertion on the interruption of extinctive prescription on the premise that the above amount was paid to the Plaintiff at the time of the above Defendant with the intent to partially repay several debts to the Plaintiff is dismissed. In other words, it is difficult to accept this part of the judgment on this point in view of the following points.

Approval as a ground for interruption of extinctive prescription is established when an obligor who is a party to the benefit of prescription indicates that the party to the benefit of prescription would lose the right or his/her agent is aware of the existence of the right. The method of indication does not require any form, regardless of any implied or explicit cases (see, e.g., Supreme Court Decisions 92Da947, Apr. 14, 1992; 95Da30178, Sept. 29, 195; 98Da63193, Apr. 25, 2000). Moreover, approval is a unilateral act that recognizes the existence of the right of the other party to the benefit of prescription, and it is unnecessary to verify matters concerning the cause, contents, and scope of the right.

However, according to the records, the above defendant at the time, in order to avoid the restriction on the loan limit of the same person, was liable for not less than 10 loans in the name of a third party, and the intent to repay all debts which have not been repaid during the above loan amount to the plaintiff's employee. The above defendant settled as if only the remaining debts have been repaid by the plaintiff's employee, and the above defendant was aware that the remaining debts have been repaid by the above defendant. At the time, the above defendant could sufficiently be said to have been repaid as a matter of course even if the plaintiff settled the remaining debts including the debts in this case and presented them as remaining debts. Thus, the above defendant's act should be deemed to have been performed as a whole by the plaintiff, with the awareness that only his debts have been settled, and the above defendant did not have any other debts, or with the intent to designate a specific debt, and expressed the concept that he bears all debts to the plaintiff at the time of the above loan amount.

Therefore, even though the repayment of debt by the above defendant under the above circumstances must be deemed to have been approved for the whole debt of the above defendant which remains objectively at the time, the court below's rejection of the plaintiff's assertion on the interruption of extinctive prescription for the above reasons does not err in the misapprehension of the party's intent or in the misapprehension of legal principles as to the interruption of extinctive prescription due to the approval of the debt, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment of the court below against the defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal against the defendant 1 is dismissed, and the costs of appeal between the defendant and the defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Han-gu (Presiding Justice)