(a) Where a judgment on the principal obligation becomes final and conclusive, and the extinctive prescription is ten years, the extinctive prescription period of the guaranteed obligation;

B. Purport of Article 440 of the Civil Code

(c) Where the maximum rate of overdue interest in a decision made by a member in charge of financial operations after loans from financial institutions has been reduced compared to that of the previous; and

A. Article 165(a) of the Civil Act provides that the period of extinctive prescription shall be ten years for claims established by a judgment, which has the same effect as a judgment, even if the period of extinctive prescription falls under the short-term extinctive prescription. Although the claim established by a judgment, etc. between the parties to the relevant judgment, etc. and the principal debtor becomes ten years, the above final judgment, etc. does not affect the period of extinctive prescription, and the period of extinctive prescription for joint and several suretys of the creditors is still in accordance with the previous period of extinctive prescription.

B. Even if the guaranteed obligation is subordinate to the principal obligation, the guaranteed obligation is independent of the principal obligation and the interruption of prescription against the principal obligor under Article 440 of the Civil Act is effective against the surety. However, this provision is a special provision for the protection of creditors or the securing of claims, rather than based on the subsidiary nature of the guaranteed obligation, provided that the interruption of prescription against the principal obligor takes effect against the principal obligor at the same time unless separate interruption measures are taken against the surety, and the period of prescription after suspension does not naturally affect the surety.

C. The provisions of Article 64(1) of the Bank of Korea Act and Article 30 subparag. 1 of the Banking Act shall be deemed to be the effective law to control the credit business of financial institutions. Therefore, if a financial institution cannot agree on a loan exceeding the highest rate of interest and overdue interest determined by the Monetary Board Operating Committee, and if the highest rate of overdue interest changed by the decision of the Monetary Board Operating Committee after the loan, the overdue interest rate agreed at the time of loan should be deemed to be effective only within the maximum of the above highest rate determined by the Monetary Board Operating Committee.

A. Article 165 of the Civil Act: Article 440 of the Civil Act; Article 64(1) of the Bank of Korea Act; Article 30 subparag. 1 of the Banking Act

Korea Exchange Bank (Attorney Lee Tae-hee, Park Jong-hee, Lee Jong-hee, Counsel for the defendant-appellant-appellant)

Defendant Kim Jong-hwan, Counsel for the defendant-appellant

Seoul High Court Decision 85Na4398 delivered on June 12, 1986

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

The grounds of appeal are examined.

1. On the first ground for appeal:

Article 165 of the Civil Act provides that the period of extinctive prescription shall be ten years for a claim established by a judgment and that has the same effect as a judgment, even in the short-term extinctive prescription. Even if the claim established by a judgment, etc. between a creditor and a principal debtor falls under the period of extinctive prescription, it shall be effective only between the parties to the relevant judgment, etc.

Even if the surety obligation is subordinate to the principal obligation, the surety obligation has an independent obligation separate from the principal obligation, and Article 440 of the Civil Act provides that the interruption of prescription against the principal obligor shall be effective against the surety. However, this provision is a special provision for protecting creditors or securing claims, rather than based on the subsidiary nature of the surety obligation, and this provision does not mean that the effect of interruption of prescription is limited to the effect that, in the event a cause for interrupting prescription has occurred against the principal obligor, the surety does not take any separate interruption measures against the principal obligor, and that, as a matter of course, the period of prescription after the interruption of prescription extends to the surety.

Nevertheless, the court below erred by misapprehending the legal principles on the extinctive prescription period of the guaranteed debt that the defendant rejected the defense of the extinctive prescription in light of the subsidiary nature of the guaranteed debt and thus affected the judgment, since the period of extinctive prescription of the principal debt was changed to 10 years pursuant to Article 165(a) of the Civil Act due to the determination of the order for the provisional execution order against the non-party Samsung Heavy Industries Co., Ltd., which is the principal debtor of the plaintiff, and accordingly, the period of the above principal debt was changed to

2. On the second ground for appeal:

Article 64 (1) of the Bank of Korea Act provides that the Monetary Board may set the highest rate of interest on various kinds of loans and other credit businesses by financial institutions, and Article 30 (1) 1 of the Banking Act provides that financial institutions shall be subject to the decision of the Monetary Board Operating Committee on the highest rate of interest on loans and other credit businesses by financial institutions, and each of these provisions shall be deemed effective regulations to control the credit businesses of financial institutions. Therefore, financial institutions cannot agree on loans exceeding the highest rate of interest and overdue interest set by the Monetary Board Operating Committee on the loans, and if the highest rate of overdue interest set by the Monetary Board Operating Committee on the loans was changed after the loan, and the overdue interest rate agreed at the time of the loan was lower than the agreed overdue interest rate set by the decision of the Monetary Board Operating Committee on the loan, the overdue interest rate set by the Monetary Board Operating Committee on the loan shall be deemed effective only within the maximum rate set by the above decision of the Monetary Board Operating Committee on the loan. According to each of the records, according to Article 30 (1) 1, 4-2 and 1, the above overdue interest rate set by the highest interest rate set at 121.

Nevertheless, the court below rejected the plaintiff bank's assertion that it is obligated to pay overdue interest only within the scope of the overdue interest rate, since the overdue interest rate of the financial institution was changed after it borrowed money to the non-party company, without any explanation on the change in the overdue interest rate, and there is no assertion that there was an agreement to comply with the overdue interest rate of the financial institution at the time of the transaction agreement between the plaintiff and the non-party company, and it did not err by misapprehending the legal principles on the application of overdue interest rate to the loans of the financial institution, which affected the remaining judgment.

Therefore, there are reasons for this issue.

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 judges.

Justices Yoon Yoon-tae (Presiding Justice)