[1] Where a director, etc. of a company jointly and severally guaranteed a debt incurred by a continuous transaction with a third party of the company, the requirements to limit the debt incurred during his/her term of office

[2] In the case of the so-called continuous guarantee contract, where the guarantor has been in the position of director to terminate the guarantee contract by unilateral declaration of intention, and the person who has become a joint guarantor for the company's obligation arising from continuous transactions between the company and the bank inevitably loses the status of director by retiring thereafter, whether the contract can be unilaterally terminated for reasons of change of circumstances (affirmative)

[1] Where a director, etc. of a company jointly and severally guaranteed a debt incurred by a continuous transaction with a third party, he/she shall be held jointly and severally liable for only the debt incurred during his/her term of office for the company's transaction to the directors, etc., due to his/her status as a director, and thus, he/she shall be held jointly and severally liable for the company's debt incurred by the continuous transaction of the company. In addition, there are special circumstances, such as accepting a new joint and several guarantee by the director, etc. who was in office at the time of the transaction whenever the other

[2] In the so-called continuing guarantee to guarantee an uncertain obligation arising from a continuous transactional relationship, in a case where the situation at the time of the establishment of the guarantee contract is significantly changed and the obligation to continue to be borne by the guarantor is deemed unreasonable in light of the parties’ intent interpretation or the good faith principle, barring special circumstances, such as where a creditor, the other party, who is the other party, suffers losses not implied under the good faith principle, the guarantor may terminate the guarantee contract by unilateral declaration of intent to terminate the guarantee contract. Since the company’s obligation arising from a continuous transaction between the company and the bank was in the position of director, it is unreasonable to maintain the status of the guarantor by social norms in a case where a person who has become a joint guarantor of the company’s obligation arising from a continuous transaction between the company and the bank, loses his status as director after retiring from

[1] Articles 2(1), 428, and 429 of the Civil Act / [2] Articles 2(1), 428, and 543 of the Civil Act

[1] Supreme Court Decision 94Da736 delivered on April 7, 1995 (Gong1995Sang, 1811), Supreme Court Decision 95Da17533 delivered on October 29, 1996 (Gong1996Ha, 3512), Supreme Court Decision 98Da3491 delivered on December 22, 1998 (Gong199Sang, 187) / [2] Supreme Court Decision 86Da792 delivered on September 9, 198 (Gong1986, 1384), Supreme Court Decision 92Da2332 delivered on May 26, 1992 (Gong192, 2011), Supreme Court Decision 97Da39819 delivered on December 10, 196 (Gong1997Da198989 delivered on June 198, 199)

Korean Bank, Inc.

Korea Assets Management Corporation

Defendant (Attorney Han-chul et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na15398 delivered on September 17, 1999

The part of the judgment of the court below against the defendant as to the damages for delay exceeding the damages for delay from February 22, 1998 to the full payment rate of 43,805,878 won and 38,500,000 won among them shall be reversed, and this part of the case shall be remanded to the Panel Division of the Seoul District Court. The remaining appeal by the defendant shall be dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal as to the omission of judgment

According to the records, after the closing of argument in the court below, the defendant submitted a preparatory document that contains the argument that the defendant shall deduct the amount equivalent to the security from the joint and several several several several several several suretys of this case, because the plaintiff was unable to exercise a security right based on the right to indemnity against the non-party company by cancelling the collateral one week prior to the non-party 1's wife non-party 2's disposition, which was provided by the non-party 1 by the representative director of the non-party 1 after the closing of argument in the court below. However, the defendant did not state the above preparatory document at the date of pleading in the court below

Therefore, even if the court below did not render a judgment on this, it cannot be deemed that there was a mistake in disregarding the judgment on the defendant's argument. This part of the grounds for appeal cannot be accepted.

2. As to the ground of appeal on the termination of guarantee agreement

A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

On September 18, 1996, the Plaintiff entered into a credit limit transaction contract with the non-party Sam River Co., Ltd. (hereinafter referred to as the "Yong River") by setting the credit limit limit of KRW 150,00,000, and the transaction period of KRW 150,000 as of September 18, 1997. In this case, the Defendant jointly and severally guaranteed the Plaintiff for all obligations that may arise at present or in the future.

On February 3, 1997, the Plaintiff loaned the discounted bill amount of KRW 38,500,000 to Samcheon under the above contract as of May 28 of the same year with the maturity of KRW 23,149,000 on March 4 of the same year designated and loaned the discounted bill amount of KRW 56,80,000 on March 6 of the same year with the maturity of KRW 56,80,000 on May 20 of the same year. The Plaintiff loaned the discounted bill amount of KRW 19,000 on April 21 of the same year with the maturity of KRW 19,00,000 on June 10 of the same year, and each of the above loans was paid at each of the collateral amount of KRW 4,00,000 on the issuance of the promissory note issued by the non-party Korean corporation, each of which was due for each of the above maturity.

On September 30, 1998, the Plaintiff transferred each of the loans of this case to the succeeding intervenor, and notified the Defendant of the assignment of the claims on November 10 of the same year.

B. The court below determined that the defendant is a joint and several surety of the above facts. Since the defendant was obligated to pay the principal and interest of loans and damages for delay to the intervenor who succeeded to each of the above loans from the plaintiff, since the defendant was in the position of directors at the time of entering into the above contract, the plaintiff was naturally aware of such circumstances, and the contract was terminated by notifying the plaintiff of the fact that the defendant resigned from the office of directors at the time of entering into the joint and several surety, and the plaintiff also agreed to replace the office of joint and several surety with the new director. As such, the defendant's assertion that the defendant did not have a joint and several surety's liability for the loans arising after the above notification was accepted on January 31, 197, and the defendant was still in the position of the director at the time of the above contract's termination, the defendant's new appointment of the office of joint and several surety's 10 or more of the defendant's new appointment of the office of directors at the time of the contract's termination of the contract.

C. Where a director, etc. of a company jointly and severally guaranteed an obligation arising from continuous transactions with a third party, he/she shall be held jointly and severally liable for the company's obligation arising from continuous transactions with the director, etc. for the purpose of paying the company's obligation to the director, etc. In addition, whenever the other party to the transaction makes a transaction, he/she needs to obtain a new joint and several guarantee from the director, etc. who was in office at the time of the transaction at the time of the transaction, and the limitation on liability cannot be interpreted as limited as above (see, e.g., Supreme Court Decisions 94Da736, Apr. 7, 1995; 95Da17533, Oct. 29, 1996; 98Da34919, Dec. 22, 198; 209Da19697, Oct. 29, 198).

However, according to the facts established by the court below and the evidence admitted by the court below, the defendant was employed by the non-party 1 as a business director around April 12, 1985, who established the Samdae River, and was working as a business director from around 1990, but was actually receiving a monthly wage without having been holding stocks or receiving dividends, and the defendant resigned from the Sam Jong River on January 31, 1997 and retired from the office on February 17 of the same year after completing the registration of resignation on the register of the Samdae River on February 17 of the same year. Thus, the defendant notified the plaintiff that he will not be liable for the joint and several liability to the plaintiff with respect to the debt of the plaintiff.

According to the above circumstances, even if the defendant, as determined by the court below, was between the non-party 1, who is the representative director of Sam River, and the defendant and the non-party 3 were jointly and severally guaranteed in order to satisfy the guarantor's property payment performance under the plaintiff's internal regulations, in light of the fact that the defendant, after the resignation of Sam River director, notified the plaintiff of the fact and provided that he will not be held liable for the joint and several liability, the defendant is in the position of the director employed in Sam River, and therefore, it can be deemed that Sam River under the above credit limit transaction contract is a current or future joint and several liability for the plaintiff. In addition, if the defendant resigns from Sam River, if he resigns from office, the situation at the time of the establishment of the guarantee contract would cause a significant change to the situation at the time of the establishment of the guarantee contract, and continuing to impose the guarantor's liability for the guarantee. Thus, the defendant can terminate the guarantee contract of this case by unilateral termination declaration.

Therefore, the joint and several guarantee contract of this case does not have the validity of the contract of this case concerning the loan obligations arising after February 17, 1997, which the defendant expressed his intention to terminate the contract of this case to the plaintiff. Nevertheless, since the defendant was in the position of director of the directors, it cannot be deemed that the court below inevitably caused the joint and several guarantee contract of this case, and on the ground that there are no special circumstances in order to assume only the obligation incurred while the defendant was in the position of director, the court below unilaterally terminated the contract of the joint and several guarantee and held that the defendant cannot be exempted from the joint and several guarantee liability by unilaterally cancelling the contract of the above loan obligations. The court below did not err in the misapprehension of the rules of evidence or by misapprehending the legal principles as to the ground for termination of the continuous guarantee contract, which affected the conclusion of the judgment.

D. However, according to the reasoning of the judgment below, since the obligation of KRW 38,500,000 for loans of February 3, 1997 is a loan obligation incurred by the defendant before the defendant expresses his/her intention to terminate the contract of joint and several sureties, the joint and several sureties contract of this case shall have its effect on the interest and delay damages until February 21, 1998 for the above loans of the above loan and its incidental claim, notwithstanding the defendant's expression of intent to terminate the contract of this case. Therefore, the part concerning the above loan of this case in the grounds of appeal shall not be accepted.

3. Therefore, the part of the judgment of the court below against the defendant as to the portion exceeding the damages for delay from February 22, 1998 to the full payment rate of KRW 43,805,878 ($38,500,000 + KRW 5,305,878) and the part as to the damages for delay from February 22, 1998 to the full payment rate of KRW 38,50,000 among these amounts shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the defendant's remaining appeal shall be dismissed, and it is so decided as per

Justices Lee Yong-woo (Presiding Justice)