A. Where a joint and several surety and real estate owned by a surety are seized, whether interruption of prescription takes effect even if the attachment is not notified

B. In the case of paragraph (a) above, whether extinctive prescription is interrupted

(c) The method of notifying the decision on commencing auction to have an effect of interrupting prescription against the primary debtor;

A. If a creditor applies for a voluntary auction of the secured real estate owned by a joint and several surety and the secured real estate owned by a surety and becomes effective as a result of the decision on commencement of auction, the creditor may claim the suspension of prescription against the joint and several surety and the surety's property even without notifying the seizure.

B. Since the interruption of the prescription takes effect between the parties involved in the interruption of prescription and their successors, even in the case mentioned in the above Paragraph (a), a joint and several surety and a person who has pledged his/her property to secure another's property to secure another's property may claim that the principal obligation has expired due to the subsidiary nature of the guaranteed obligation. Thus, unless there are grounds for the interruption of prescription against the principal obligor, it cannot be deemed that the principal obligation has been interrupted even

C. If a ruling to commence auction was served on the principal debtor who is an interested party at the auction procedure, the principal debtor shall be deemed to have the effect of interrupting the extinctive prescription of the relevant secured claim pursuant to Article 176 of the Civil Act. However, in order to be deemed to have been notified of the fact of seizure pursuant to Article 176 of the Civil Act, the fact of seizure shall be served on the principal debtor by means of delivery or notice of the auction date so that the principal debtor can be informed of the fact of seizure, and it shall not be deemed that the fact of seizure has been notified even in cases where the debtor was unable to know the fact of seizure by means

A. Article 168 subparag. 2(b) of the Civil Act; Article 169 of the Civil Act; Article 176 of the Civil Act; Article 165 of the Civil Procedure Act

B. Supreme Court Decision 77Da418 delivered on September 13, 1977 (Gong1990, 462) 89Meu32606 delivered on January 12, 1990 (Gong1990, 1572)

Attorney Lee Jong-ho et al., Counsel for the defendant-appellant

Defendant

Seoul High Court Decision 92Na38401 delivered on March 23, 1993

All appeals are dismissed.

The costs of appeal shall be assessed against each appellant.

The Plaintiff’s attorney’s ground of appeal is examined.

On the first ground for appeal

1. According to the reasoning of the judgment below, the court below acknowledged that on May 2, 1985, the plaintiff and the non-party ○○○○○ (hereinafter referred to as the "non-party") agreed to purchase and sell rubber products, etc. produced by the plaintiff on May 2, 1985, and the non-party shall create a right to collateral in order to secure the plaintiff's transaction obligation. The non-party shall create a right to collateral as deemed appropriate to secure the plaintiff's transaction obligation. If the non-party's total debt amount against the plaintiff, such as securities and transaction balance issued or endorsed by the non-party exceeds the maximum debt amount by the creation of the above right to collateral, the excess amount shall be the plaintiff's entrusted goods, and the non-party shall sell the above entrusted goods in accordance with the sale conditions instructed by the plaintiff and immediately return the price to the plaintiff. The contract period shall be two years, but if the parties raise no objection, the contract period shall be deemed to be renewed, and there is no error in the misapprehension of legal principles as to the contract or interpretation of Article 163 of the Civil Act.

2. In the instant case, even if the Plaintiff and the Nonparty concluded a contract using the title of agent, as recognized by the lower court, if the contractual relationship between the Plaintiff and the Nonparty within the scope of the maximum debt amount of the right to collateral security with respect to the purchase of the goods from the Plaintiff, a supplier of the goods, and the sales of the goods under their own account, such contractual relationship shall be deemed to have been continuously concluded, and it shall not be deemed an entrustment contract in that it cannot be deemed a commercial agent under the Commercial Act or any similar contract under the Commercial Act, and the sales of the goods shall not be deemed an entrustment contract in that it does not

3. The arguments are that sales under Article 163 subparagraph 6 of the Civil Code include only a single sales, and that sales continuously do not include a continuous sales, but there is no ground to restrict such sales, and they cannot be accepted as it is without merit.

Therefore, there is no reason to discuss.

On the second ground for appeal

1. The interruption of the prescription takes effect between the parties involved in the interruption of prescription and their successors (Article 169 of the Civil Act). If the plaintiff filed an application for voluntary auction of the secured real estate in this case owned by the defendant who is a joint and several surety and also a surety, and the seizure following the decision on commencement of auction takes effect, the plaintiff may assert the interruption of the prescription against the defendant even if the defendant did not notify the defendant of the seizure. However, even in such a case, the defendant may assert that the principal obligation has expired due to the subsidiary nature of the guaranteed obligation. Thus, unless there is any ground for the interruption of prescription against the principal obligor, the interruption of prescription cannot be deemed to have expired due to the cause for the interruption of prescription against the defendant, and if the interruption of prescription following the above decision on commencement of auction takes effect to the principal obligor, the fact of the seizure shall be notified.

2. If a ruling to commence the auction was served on the principal debtor who is an interested party at the above auction procedure, the principal debtor shall be deemed to have the effect of interrupting the extinctive prescription of the relevant secured claim pursuant to Article 176 of the Civil Act. However, in order for the principal debtor to be deemed to have been notified of the fact of seizure pursuant to Article 176 of the Civil Act, the notice of the ruling to commence the auction or the notice of the auction date shall be served on the principal debtor by means of delivery, so that the principal debtor can know the fact of seizure, and this cannot be deemed to have been notified to the debtor even in a case where the debtor was unable to know the fact of seizure by means of mail delivery (delivery) or by public notice, even if the fact of seizure was served on the debtor by means of service by public notice

3. As to the plaintiff's re-appeal against the defendant's defense of the interruption of prescription, in light of the fact that Article 176 of the Civil Act provides that if an attachment does not take effect against the person who is entitled to prescription, the interruption of prescription shall not take effect unless it has been notified to him/her, the court below rejected the plaintiff's assertion of the interruption of prescription as to the remainder of the plaintiff's claim without any justifiable reasons, since the decision of commencing the auction on the interruption of prescription has an effect of seizure under the former Auction Act, even if there is a decision of commencing the auction as to the security of this case, if the debtor and the owner of the security are different, the fact of seizure shall be served on the debtor by means of mail (delivery) or delivery other than by public notice, but the fact of seizure shall be deemed to have been notified. In the auction procedure of this case, the court below's decision that the decision of the court below is just and without merit as to the defendant's defense as to the interruption of prescription against the principal debtor's guaranteed obligation.

The judgment of the court below does not contain an error of law by misunderstanding the legal principles concerning the interruption of extinctive prescription or delivery, and there is no reason to discuss

On the third ground for appeal

According to the evidence No. 7 as cited by the court below, the non-party failed to pay the total amount of KRW 46,513,040 to the plaintiff at once, and on December 28, 1987, the non-party paid in installments the amount of KRW 2,60,000 each month from June 30, 198 to November 30, 1989. If the repayment is delayed at once, it would lose the benefit of time, and deliver a written statement of repayment that the non-party would not raise an objection even if he disposes of the real estate of this case provided by the defendant to the whole balance at once. Thus, it is clear that the non-party agreed to pay in installments the existing goods payment to the plaintiff, and it cannot be deemed that the non-party entered into a new contract of debt liability instead of extinguishing the existing goods payment obligation. Thus, there is no reason to conclude that the period of extinctive prescription for the existing obligation is changed to five years due to the submission of the above statement of payment.

We examine the Defendant’s grounds of appeal.

1. According to the records, the fact-finding of the court below is acceptable, and the court below's measures that recognized that the non-party supplied goods, such as transfer from November 1, 1986 to April 1, 1987, the sum of the price that the non-party did not pay to the plaintiff is KRW 46,513,040, based on the evidence cited by the court below, such as the statement of evidence No. 2 and the testimony of the non-party No. 2 by the witness, etc., are acceptable, and there is no violation of the rules of evidence.

2. In light of the background and process of the conclusion of the instant contract, and the Defendant’s signature and seal on the special agreement transaction agreement (Evidence A) cannot be readily concluded that the said special agreement is merely an example, solely on the ground that the said special agreement is printed in the same word, and the content indicated in the document cannot be deemed as having an effect as the Defendant’s declaration of intent.

3. In addition, if the facts are acknowledged by the court below, the part exceeding the maximum debt amount of the right to collateral security as to the instant security is applied to the sale price of the Plaintiff’s consigned property and thus the extinctive prescription has not been completed due to the application of the provision on the commercial prescription for five years as the sale price of the Plaintiff’s consigned property. The argument of the court below is that KRW 16,102,210 of the successful bid price of this case delivered by the Plaintiff should be preferentially appropriated for the sale price of the consigned property, but it cannot be accepted as it should be appropriated for the secured debt of the security right

It is not reasonable to dispute the fact-finding of the lower court, which is the full authority of the lower court, on the ground that the facts acknowledged by the lower court are different from the facts acknowledged by the lower court, or that the lower court was not admitted by its independent opinion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)