Dae Young-gu Co., Ltd. (Law Firm Jungwon, Attorneys Jeon-ju et al., Counsel for defendant-appellant)

Yong-Namethyl Co., Ltd. (Law Firm Dam LLC, Attorneys Yellow-sik et al., Counsel for the defendant-appellant)

November 8, 2017

1. The defendant shall pay to the plaintiff 77,419,200 won with 15% interest per annum from July 4, 2017 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On September 9, 2016, the Defendant awarded a contract to ○○ Comprehensive Construction Co., Ltd. (hereinafter “○○ Construction”) for construction cost of KRW 2,535,500,000 (hereinafter “instant construction”).

B. From September 26, 2016 to December 26, 2016, ○○ Construction supplied ready-mixeds equivalent to KRW 183,104,850 (hereinafter “instant goods”) from the Plaintiff for use in the instant construction, and paid KRW 105,685,650 out of the price.

C. On October 5, 2016, the Plaintiff was issued a written contract (hereinafter “instant contract”) from ○○ Construction to the Plaintiff.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1 and 2, Eul No. 1 and the purport of the whole pleadings

2. The parties' assertion

The plaintiff asserts that the defendant is jointly and severally liable to pay 7,419,200 won for the unpaid goods (=183,104,850 won - 105,685,650 won) and damages for delay.

In regard to this, the defendant asserts that even if there was no joint and several liability contract between the plaintiff and the plaintiff, the contract of this case does not contain intent and scope of the joint and several liability, and thus the joint and several liability contract of this case was null and void. ③ Even if the contract of this case was not repaid, the plaintiff did not notify the defendant of the non-performance of the principal obligation of ○○ Construction, so it shall not be liable for any damages.

3. Determination

(a) Whether a joint and several guarantee contract is concluded;

According to the statement in Gap evidence No. 1, the witness testimony and the whole purport of the argument by non-party 1, the defendant's employee non-party 1 or non-party 2, who managed the construction of this case, affixed his name tag and seal to the column of joint and several sureties of the contract of this case. The following circumstances revealed by the evidence mentioned above, which can be found in the above facts. In other words, the contract of this case does not clearly state that "the defendant shall stand joint and several sureties for the obligation to pay for the goods of this case" but it is reasonable to deem that the contract of this case was jointly and severally guaranteed by the defendant and non-party 1, who is a merchant, to purchase the goods of this case and supply the goods of this case as stated above, and submit it to the plaintiff in order to be supplied with ready-mixed as stated above. The defendant affixed his name plate and seal to the "joint and several sureties" column of the contract of this case, and considering that the defendant and non-party 1, an employee of this case, did not know the meaning of joint and several sureties.

B. Whether the scope of joint and several guarantee is specified

Article 6(1) and (2) of the Special Act on the Protection of Surety (hereinafter “Surety Protection Act”) provides that, in the event that a creditor and a principal debtor guarantee a debt incurred from a specific transaction contract or any other transaction of a certain kind, the creditor and the principal debtor, the maximum amount of the debt guaranteed shall be specified in writing, and that the guarantee contract that does not specify the maximum amount of the debt in writing shall not be effective. Thus, the following circumstances, which can be recognized by the statement No. 1, the witness’s testimony and pleading in the contract of this case, indicate 61,100 won per square meter of ready-mixed supplied in the contract of this case, namely, the fact that the unit price per square meter of ready-mixed supplied in the contract of this case is 61,100 won, and that the large amount of ready-mixed supplied in the contract of this case can be determined because of the fact that the large amount of ready-mixed supplied can also be determined because of the fact that the design of the contract of this case is completed at the above site.

C. Whether the price of the instant goods is repaid

The evidence alone presented by the Defendant alone is insufficient to recognize the fact that the entire price of the instant goods has been repaid, and there is no other evidence to acknowledge it.

(d) Whether damage occurs due to the failure to notify the principal obligation of the failure to perform the principal obligation;

Article 5(1) and (4) of the Surety Protection Act provides that when the principal debtor fails to perform the principal, interest and other obligations for not less than three months, or when the principal debtor becomes aware of the impossibility of performing the obligation within the due date, the guarantor shall, without delay, notify the guarantor thereof, and the guarantor shall be exempted from the obligation to the extent he/she has suffered loss.

However, even according to the defendant's assertion, if the plaintiff notified ○ Construction of the fact that the obligation to pay the price of the instant goods was not fulfilled, the purport is that the defendant incurred loss due to the failure to pay the price of the instant construction to ○○ Construction on March 14, 2017. According to the overall purport of the statement and pleading No. 1, the conditions for approval of the price of the instant goods can be acknowledged as the fact that the price of the instant goods is 90 days before the end of the following month after the end of the month. According to this, the price of the instant goods supplied on September 2016, which is the highest due date, shall be issued as of January 31, 2017 at the end of the due date, and even if the bill was not approved on the above payment date, the plaintiff did not notify the defendant until April 30, 2017, the plaintiff's duty to notify it to ○○ Construction pursuant to Article 5 of the Act, and thus, the defendant cannot be viewed as having neglected to pay the causal relationship between the principal obligation.

E. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 77,419,200 for the unpaid goods and damages for delay calculated at the rate of 15% per annum from July 4, 2017 to the date of full payment, which is the day following the delivery of a copy of the instant complaint.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges or higher-ranking