[1] Whether a unilateral act of bearing an obligation, such as a joint and several guarantee agreement, can constitute an unfair legal act under Article 104 of the Civil Code (negative)

[2] Where a company designated as an industrial rationalization company and its representative director entered into a joint and several guarantee contract for a large amount of debt outside the capacity to bear solely on the ground that it is the position of the representative director in the insolvency crisis and then has renewed the same contract for about 11 consecutive years on the basis thereof every year, the case holding that the joint and several guarantee contract is null and void in violation

[1] A juristic act which has manifestly lost fairness as stipulated in Article 104 of the Civil Code refers to an act of obtaining unfair property profits by making the other party pay in return that has significantly lost balance compared to his/her own performance. Thus, a juristic act which, without any consideration as provided in a joint and several surety contract, one of the parties bears an obligation to the other party without any consideration is not a juristic act of a nature that can discuss whether it is fair.

[2] Where a company designated as an industrial rationalization company and its representative director entered into a joint and several guarantee contract for a large amount of debt outside the capacity to bear solely on the ground that it is the position of the representative director in the insolvency crisis and then has renewed the same contract every year for about 11 years on the basis thereof, such joint and several guarantee contract shall be null and void in violation of the good faith principle

[1] Articles 104 and 428 of the Civil Act / [2] Articles 2 and 428 of the Civil Act

[1] Supreme Court Decision 93Da6409 delivered on October 26, 1993 (Gong1993Ha, 3173) Supreme Court Decision 96Da49650 delivered on March 11, 1997 (Gong1997Sang, 1064) Supreme Court Decision 9Da5683 delivered on February 11, 200 (Gong2000Sang, 686)

[Defendant-Appellant] Defendant 1 and 2 others (Attorney Soh-jin et al., Counsel for defendant-appellant)

Han Bank Co., Ltd. (Law Firm Chungcheong, Attorneys Choi Ho-young et al., Counsel for the plaintiff-appellant)

October 15, 1999

1. On January 3, 1996, it is confirmed that there does not exist any joint and several liability obligations based on a joint and several guarantee contract concluded with the defendant for the purpose of the third-party housing company.

2. The costs of lawsuit shall be borne by the defendant.

The same judgment as the disposition (the plaintiff, around January 3, 1996, sought a judgment that the contract for joint and several surety (joint and several surety guarantee) entered into with the defendant for a third-party house on the stock market on January 3, 1996, is invalid, and is the same as the preliminary order. However, the primary purport of the claim seems to be the same as the primary purport of the claim, and therefore, it is ultimately deemed that one claim seeking a judgment like the order is filed).

1. Basic facts

The following facts may be acknowledged by integrating the whole purport of the pleadings in each of the descriptions in Gap1, Gap2-1, Eul 3, Eul 1, Eul 2-5, Eul 2-1, Eul 2-2:

A. At the time of November 21, 1985, the Plaintiff is the representative director of Sam-Profit Housing Co., Ltd. (hereinafter referred to as the “sub-Profit Housing”) and the wife of Lee Jong-ok, who was a major shareholder (16.93% of the issued shares).

B. Three houses were designated as industrial rationalization enterprises by the government on November 21, 1985 as the financial situation of the company becomes worse, and at the same day, the management contract was concluded between the defendant bank and the defendant bank on the same day, and this paper submitted a letter to the effect that this paper waives all the powers concerning three houses such as three houses and the right to manage the company. On September 22, 1986, this paper, after the approval for the designation of the above industrial rationalization enterprise was granted on March 4, 1987, dismissed from office as the representative director of the three houses, dismissed from office as director on March 4, 1987, and three houses thereafter were managed by the defendant bank on September 17, 1998.

C. On the other hand, on November 21, 1985, the Plaintiff concluded a joint and several surety contract with the Defendant bank for all of the obligations of the Defendant bank in Sam-Hy Housing, and then renewed the said joint and several surety contract every year. Finally, on January 3, 1996, the Plaintiff renewed the said joint and several surety contract (hereinafter “instant joint and several surety contract”).

D. The debt to the defendant bank of Sam-Hy Housing was 144,60,000,000 won around November 30, 1985, and around December 31, 1995, the debt was 188,70,000 won.

2. Determination on this safety defense

The defendant bank stated that the joint and several guarantee contract of this case entered into between the plaintiff and the defendant bank for the purpose of third-party house on January 3, 1996 is unfair legal act, or (2) is revoked by the plaintiff's expression of intent to revoke it, or null and void in violation of the good faith principle, and thus, it is alleged that there is no benefit to confirm it. However, as seen above, it is argued to the purport that there is no benefit to confirm it as a claim for confirmation of past legal relationship. As seen above, the plaintiff seeks confirmation that the above claim of this case is the same as the claim of the plaintiff initially sought for confirmation that there is no joint and several guarantee obligation against the defendant bank based on the above joint and several guarantee contract, and thus the plaintiff makes a single claim. Thus, as long as the defendant bank contests the existence of the plaintiff's joint and several guarantee obligation against the defendant bank based on the above joint and several guarantee contract

3. Judgment on the merits

A. Determination on the assertion of unfair legal act

The plaintiff asserted that the first joint and several guarantee contract between the plaintiff and the defendant on November 21, 1985 between the plaintiff and the defendant was concluded by the defendant bank using the plaintiff's rash and experience and was null and void, and that the contract of the joint and several guarantee contract of this case which is renewed accordingly is also null and void. However, a juristic act which has considerably lost fairness as provided in Article 104 of the Civil Act refers to an act of obtaining unfair economic profits by making the other party pay for the benefit significantly lose balance compared with his own benefit. Thus, the juristic act which one party bears a unilateral obligation to the other party without any consideration as in the joint and several guarantee contract of this case is not a juristic act of the nature that can discuss the fairness of the contract (see Supreme Court Decision 92Da5238 delivered on March 23, 1993). The plaintiff's above assertion is without merit in itself.

B. Determination on the assertion of intent by fraud

The plaintiff did not notify the loan amount to the defendant bank or the financial status of the third-income house after the conclusion of the joint and several surety contract of November 21, 1985 until the conclusion of the contract of this case. On December 12, 1995, the joint and several surety contract of this case was concluded with the plaintiff's belief and the above joint and several surety contract of this case was concluded by deceiving Haman, who is the director of the defendant bank's principal office, to be the plaintiff, and was not responsible for the above joint and several surety contract of this case. The plaintiff believed that the above joint and several surety contract of this case was cancelled as a juristic act by fraud. In full view of the purport of oral argument in the testimony of the witness name, it was argued that the above No. Haman had no other reason to recognize the plaintiff's renewal contract of the joint and several surety contract of this case by actively deceiving the plaintiff's signature and seal of this case, and there was no reason to recognize the plaintiff's renewal contract of the above joint and several surety contract of this case.

C. Determination on the assertion of good faith

(1) The plaintiff's assertion

The joint and several guarantee contract of this case was concluded solely on the ground that the Plaintiff was the representative director at the time of November 21, 1985 and was a major shareholder, although there was no relationship with the Sam-Ba Housing. The Defendant, despite the fact that the Plaintiff’s property was not actually useful for securing the claim, forced the conclusion of the above joint and several guarantee contract to pressure the Plaintiff, so such joint and several guarantee contract is null and void contrary to the good faith principle.

(2) Facts and determination of recognition

The plaintiff's initial joint and several sureties contract with the defendant bank for 10th November 21, 1985 was concluded on the following grounds: the plaintiff's first joint and several sureties contract with the defendant bank was concluded on November 21, 1985 because it was merely a major shareholder of 3rd house as of November 21, 1985, and the representative director of 3rd House as of March 4, 1987; the third-income house was renewed each year after the resignation of the director's office; the third-income house was operated by the defendant bank for 10 years after it was closed from the office of the representative director; the plaintiff's debt guarantee contract with the defendant bank was concluded on September 17, 198; the amount of security deposit for the defendant's joint and several sureties contract with the defendant bank was determined as the only asset for 10th 10th 30th 10th 190,000 won; and it was impossible for the plaintiff to conclude the above joint and several sureties contract with the defendant bank.

According to the above facts, the joint and several guarantee contract of this case entered into between the plaintiff and the defendant bank was originally set up with joint and several suretiess and benefiting houses operated by the defendant bank for about 11 consecutive years on the ground that the plaintiff was merely the wife's wife in the bankruptcy crisis, and based on which the defendant bank continued to provide joint and several sureties for a large amount of debt outside the ability to bear as above on the ground that it was merely the wife's wife. This cannot be said to be based on a non- democratic circumstance where the defendant bank does not take reasonable measures to secure the claim against the representative director or the management of the company in accordance with due process and takes unlimited liability to the family of a specific representative director without taking any measures to secure the claim in accordance with due process, and it cannot be said that the defendant bank's joint and several sureties contract of this case was in violation of the principle of good faith. (According to each of the statements in 16-1, 2, 17-1, 2, and 3, the defendant bank is jointly and severally liable as above joint and severally liable by the plaintiff.

4. Conclusion

Thus, there is no debt based on the above joint and several guarantee contract, and as long as the defendant bank contests it, there is a benefit to seek confirmation, so the plaintiff's claim is reasonable and it is decided as per Disposition.

Judges Completion-type (Presiding Judge)