[1] The meaning of “part of liability” in the exercise of the right to indemnity between obligors, and whether the amount equivalent to the ratio of sharing of other obligors, out of their amount of joint immunity, may be exercised to the extent that the amount equivalent to the ratio of sharing of one’s joint immunity exceeds the amount equivalent to the ratio of one’s own apportionment among the amount of other obligors (affirmative)

[2] Where a set-off objection has a reasonable ground and it seems clear that the amount of automatic credit exceeds the amount of the passive credit, and where delay has occurred as the repayment period of the passive credit has already arrived before the set-off point, matters to be clarified in the reasoning of the judgment by the court

[1] In the internal relationship between joint and several sureties, each of the joint and several sureties guaranteed some portion within the scope of his/her share amount, and it is common to expect that the joint and several liability should be jointly and severally liable for all of the other joint and several sureties jointly and severally liable for damages, while the relationship between the joint and several sureties plans to resolve only the share amount. Therefore, in order for one of the joint and several sureties to exercise the right to indemnity against the other joint and several sureties on the ground of joint and several sureties, the Civil Act requires that he/she paid “in excess of the share of his/her own liability” (Article 448(2)). However, when one of the joint and several sureties exercises the right to indemnity against the other joint and several obligors on the ground of joint and several sureties’s liability, it is reasonable to view that, in exercising the right to indemnity among the joint and several obligors’ joint and several liability, the “part of joint and several liability” refers to the proportion of the joint and several obligors jointly and severally liable at the different share of liability amount.

[2] In a case where a declaration of intent of offset has been made, the obligation is deemed to be extinguished on an equal amount retroactively from the time of offset. As such, if the difference in the amount of the obligation under the offset is calculated or the appropriation of offset is deemed to be based on the time of offset. Therefore, in a case where delay occurs due to the arrival of the time of payment of the obligation under the offset, then the damages for delay of the obligation under the passive obligation should be calculated up to the time of offset, and then the original obligation must be retired first and the balance should be retired with automatic claim. In addition, in a case where a claim of offset has res judicata effect as to the amount asserted against offset regardless of whether it is accepted or not (Article 216(2) of the Civil Procedure Act), even though the defense of offset is reasonable and it is apparent that the amount of the obligation under the offset exceeds the amount of the obligation under the offset, if it is recognized that delay occurred due to the arrival of the time of the obligation under the offset, even if it is not calculated daily until the amount of the obligation to be extinguished by the offset is clear by the parties to a specific reason for setting of res judicata.

[1] Articles 425(1) and 448(2) of the Civil Act / [2] Article 216(2) of the Civil Procedure Act, Article 492 of the Civil Act

[2] Supreme Court Decision 2005Da8125 decided Jul. 8, 2005 (Gong2005Ha, 1303)

Plaintiff

Defendant (Bae, Kim & Lee LLC, Attorneys Ahn Young-soo et al., Counsel for the defendant-appellant)

Supreme Court Decision 2011Da8005 Decided August 17, 2012

Seoul Central District Court Decision 2012Na41020 decided May 22, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, it is proper to determine that the court below may claim compensation against the defendant, who is jointly and severally liable in relation to the case of division of inherited property and the litigation cost of the non-party embezzlement case (hereinafter “instant litigation cost”) paid by the plaintiff through his account on the grounds as stated in its reasoning, and there is no error in the misapprehension of legal principles as to the meaning of “self-refiscing” and the burden of proof, which are requisite

2. Regarding ground of appeal No. 2

In the internal relationship between the joint and several sureties, each of the joint and several sureties guaranteed some portion within the scope of his/her share, and it is common to expect that only the principal debtor should settle the indemnity relationship with respect to any of the goods jointly and severally liable among the joint and several obligors jointly and severally liable. However, in order for one of the joint and several sureties to exercise the right to indemnity against the other joint and several sureties on the ground of the joint and several liability, the Civil Act stipulates that one of the joint and several sureties has performed the repayment in excess of the share of his/her own liability (Article 448(2)). However, when one of the joint and several sureties exercises the right to indemnity against the other joint and several obligors on the ground of the joint and several liability, he/she may exercise the right to indemnity against the “share of the joint and several liability” without such restriction (Article 425(1)). As a result, it is reasonable to view that, in exercising the right to indemnity among the joint and several obligors jointly and severally liable, “part of the joint and several liability” means one’s partial exemption.

In the same purport, even if the amount paid by the defendant as the litigation costs of this case exceeds the amount calculated by applying the defendant's apportionment ratio to the total amount of the litigation costs of this case to the plaintiff, the court below is just in holding that the defendant is liable to pay the difference between the amount calculated by applying the defendant's apportionment ratio to the total amount of the litigation costs of this case to the plaintiff, and the amount calculated by applying the plaintiff's apportionment ratio to the total amount of the plaintiff's litigation costs of this case to the total amount of the litigation costs of this case to the plaintiff as the compensation amount. There is no error in the misapprehension

3. As to the third ground for appeal

In the event of declaration of intention of offset, the obligation is deemed to be extinguished on an equal amount retroactively to the time of offset. As such, the difference in the amount of the claim by offset or the appropriation of offset shall be based on the time of offset. Therefore, where delay occurs due to the arrival of the time of payment of the passive claim prior to that time, then the damages for delay shall be calculated by calculating the damages for delay of the passive claim up to that time, and where delay occurs due to the arrival of the time of payment of the passive claim, the damages for delay shall be retired from the automatic claim first, and the original shall be retired with the balance (see, e.g., Supreme Court Decision 2005Da8125, Jul. 8, 2005). In addition, the claim of offset has res judicata effect on the amount asserted by offset regardless of whether it is accepted or not (Article 216(2) of the Civil Procedure Act). Thus, even if the defense of offset is clearly apparent that the amount of the automatic claim exceeds the amount of the claim by the time of offset, even if it is recognized that time of offset in itself can be determined within the specific time of offset.

According to the reasoning of the judgment of the court below, the court below, based on its reasoning, determined that the defendant is liable to pay the plaintiff the indemnity amount of KRW 24,329,133 and its delay damages, and further, asserted that the defendant offsets the plaintiff against the claim of KRW 155,432,082 against the plaintiff by the claim of KRW 155,432,082. The defendant is liable to pay KRW 15,432,082, which is the value at the time of the commencement of the inheritance of the management right of this case acquired by the defendant through the judgment of this case. The plaintiff's above indemnity claim of KRW 155,432,082, which was extinguished by the defendant's expression of intent of offset. However, even after examining the reasoning of the judgment of the court below, there is no mentioning the time of offset, and the starting date of the repayment damages which were extinguished by the above offset, and there is no error in the misapprehension of the judgment of the court below.

On the other hand, the first instance court dismissed the Plaintiff’s claim because it did not recognize the Plaintiff’s claim for reimbursement itself, while recognizing the Plaintiff’s claim for reimbursement, the lower court dismissed the Plaintiff’s appeal on the ground that the first instance court, which dismissed the Plaintiff’s claim as a result of the Defendant’s counterclaim, was justifiable. However, while recognizing the Plaintiff’s claim by denying the claim itself, the lower court’s dismissal of the Plaintiff’s claim differs from the scope of res judicata pursuant to Article 216 of the Civil Procedure Act, on the ground that the lower court’s dismissal of the Plaintiff’s claim differs from the scope of res judicata effect pursuant to Article 216 of the same Act. As such, the lower court did not dismiss the Plaintiff’s appeal on the ground that the same conclusion is the same,

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)