In case where there is a special agreement for the loss of the benefit of a period under a condition precedent, whether the obligee, even though there is no obligee’s declaration of intent for the loss of the period if there is a cause for the loss of the benefit of the period under the special agreement, can be placed

If an obligee’s separate declaration of intent is made under a so-called special contract for loss of benefit under a condition precedent which causes the same effect as the time due is due, the cause for loss of benefit under the special contract occurs, and the obligee’s declaration of intent to lose the benefit within the time limit is not made, the effect of the due date becomes due and the obligor is placed in a state of delay in performance from that time, unless there

Articles 387 and 388 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Bank of Korea

Defendant (Law Firm Two, Attorneys Lee Ho-woo et al., Counsel for the defendant-appellant)

Supreme Court Decision 98Da6763 Delivered on July 10, 1998

Seoul District Court Decision 98Na40885 delivered on February 4, 1999

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

We examine the grounds of appeal.

1. Where an obligee’s separate declaration of intent was made under a so-called special contract for the loss of benefit under a condition precedent which causes the same effect as that of the immediate due date even if there is no separate declaration of intention by the obligee, the occurrence of the cause for loss of benefit under the said special agreement, and at the same time, the obligee’s declaration of intent to lose the benefit under the condition becomes effective, and the obligor, barring any special circumstance, shall be placed in a state of delay in performance from that time (see, e.g., Supreme Court Decisions 88Meu1463, Sept. 29, 198; 97Da12990, Aug. 29, 19

2. According to the reasoning of the lower judgment and the record, the Plaintiff agreed to lend various items of funds, including the instant loans jointly and severally guaranteed by the Defendant to the non-party Samyang District Co., Ltd. (hereinafter referred to as the "non-party Co., Ltd."). The non-party Co., Ltd. agreed to lose profits under the condition of suspension as seen above. The non-party Co., Ltd. was to pay the principal and interest of each of the above loans in a normal condition of suspension, and the non-party Co., Ltd. lost its profits due to the occurrence of bankruptcy, one of the grounds for loss of profits under the terms agreed on February 10, 1993. Thus, each

With the same purport, the court below rejected the defendant's assertion that each of the above loans should be first appropriated to the loan obligations of this case, which was established first of all of the above loans, and the payment of debt in proportion to each of the above loans is just on the premise that each of the above loans becomes due at the auction procedure conducted by the plaintiff on the collateral provided by the non-party company after the non-party company's default, and that each of the above loans has lost the benefit due to the non-party company's default, even though each of the above loans has lost the benefit due to the non-party company's default, the above loans at the same time did not reach the due date, and as for the legal appropriation of debt between the obligations for which the deadline has not been set, the above dividends should be appropriated first of all of the above loans, and there is no error in the misapprehension of legal principles as to mistake of facts and satisfaction of payment due to the violation of the rules of evidence, as argued by the defendant.

3. Therefore, the appeal is dismissed, and all 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 Cho Chang-hoon (Presiding Justice)