National Agricultural Cooperative Federation (Attorney Park Jong-ok, Counsel for defendant-appellant)

(Attorney Park Jae-woo, Counsel for the plaintiff-appellant)

October 1, 2008

Gwangju District Court Decision 2007Kadan14368 Decided May 20, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in total, in the first and second instances.

1. Purport of claim

The defendant shall pay to the plaintiff the amount of KRW 540,373,479 and KRW 530,00,000 among them, 7.6% per annum from January 31, 2007 to October 10, 207, and 20% per annum from August 11, 2007 to the date of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On February 1, 2001, the Defendant entered into a credit guarantee agreement with Nonparty 1, the principal of which is KRW 570,000,000 of the guaranteed principal, January 31, 2002, and 80% of the guaranteed rate (hereinafter “credit guarantee agreement of this case”) in order to guarantee the payment of the loan to be borne by Nonparty 1 against the Plaintiff in the future, and issued the said written credit guarantee to the Defendant on the same day.

B. On February 2, 2001, the Plaintiff concluded an automatic loan agreement (hereinafter the instant loan agreement) with Nonparty 1 on the maximum amount of KRW 712,50,000 agreed with Nonparty 1 as security, and on January 31, 2002, with interest rate of KRW 9.25% per annum.

C. From January 31, 2002 to January 31, 2006, the Defendant entered into an additional transaction agreement with Nonparty 2 to extend the period of repayment for the Plaintiff’s obligation to the Plaintiff by one year each time when the period of repayment for the obligation to the Plaintiff expires, and issued each additional transaction agreement to the Plaintiff. Upon receipt of the above additional transaction agreement, the Plaintiff continued to extend the period of the instant loan agreement between Nonparty 2 and Nonparty 2 by the extended period under the above additional transaction agreement. As a result, the final period of the instant loan agreement became January 31, 2007.

D. On February 24, 2004, Nonparty 2 agreed with the Plaintiff to reduce the credit limit amount of the instant loan agreement to KRW 662,50,000,000. On the same day, the Plaintiff and the Defendant agreed to reduce the guarantee amount to KRW 530,000 on the same day.

E. On April 16, 2001, Nonparty 1 withdrawn KRW 265,836,560 from the above passbook, and from time to time after receiving the first loan after receiving the loan after the loan agreement of this case, he lost the benefit of October 29, 2006 while repeating the loan. On November 7, 2006, the Plaintiff notified the Defendant of a credit guarantee accident, and on January 30, 2007, notified the Defendant of the credit guarantee principal of this case of KRW 530,00,373,479, the sum of KRW 540,373,479, and the interest accrued until that time was paid to the Defendant. However, the Defendant refused to perform the guaranteed obligation.

[Reasons for Recognition] Evidence Nos. 1 through 15, Evidence Nos. 1 and 2, and the purport of the whole pleadings

2. The parties' arguments and issues

F. Establishment of guaranteed liability

According to the above facts, the defendant is obligated to pay the amount of KRW 540,373,479 under the credit guarantee contract of this case (i.e., the principal of the credit guarantee + the amount of KRW 530,00,000 + interest of KRW 10,373,479 up to January 30, 207) and delay damages pursuant to the credit guarantee contract of this case, unless there are special circumstances to the plaintiff.

G. Party’s assertion

(1) Article 3(1) of the Credit Guarantee Terms and Conditions applicable to the instant credit guarantee agreement (hereinafter referred to as the “this guarantee agreement”) provides that “a creditor shall be liable for the performance of one or more separate loans in compliance with the credit guarantee terms and conditions within 60 days from the date of issuance of the letter of guarantee indicated on the front of the letter of guarantee.” The Defendant asserts that the Plaintiff’s initial loan performance against Nonparty 1 was made only on April 16, 2001 after the lapse of 60 days from February 1, 2001, the date of issuance of the letter of credit guarantee, and thus, the relationship between the Plaintiff and the Defendant is not established, and the Defendant is not liable for the performance of the guaranteed obligation.

(2) On this issue, the Plaintiff asserts that the clause of this case is invalid pursuant to Article 6 of the Regulation of Standardized Contracts Act because it is a clause that, without any legal basis, excludes or limits the guarantor's liability without any justifiable reason, is unfairly unfavorable to the customer, and thus, is unfair in violation of the principle of good faith. ② The Defendant concluded an additional transaction agreement to extend the guarantee term for Nonparty 1, and notified the Plaintiff of the change of the credit guarantee term is ratified as having a credit guarantee relationship with regard to the obligation of the king, and it is not reasonable that the Defendant consented to the extension of the guarantee term without any objection for five years to deny the establishment of the credit guarantee relationship itself by giving rise to the Plaintiff's extension of the guarantee term and the reservation of the execution of the credit, and it is contrary to the principle of good faith. ③ The Defendant revised the credit guarantee agreement to be established if the basic loan agreement is newly concluded within 60 days from the date of the credit guarantee notice in the case of an automatic passbook loan.

H. Key issue

Therefore, the issues of the instant case are ① whether the terms and conditions of the instant contract are invalid, ② whether the Defendant ratified the establishment of a credit guarantee relationship, and whether the Defendant’s denial of the establishment of a credit guarantee relationship goes against the good faith principle, ③ whether the amended terms and conditions of the instant credit guarantee should be applied.

3. Judgment on the issue

A. As to whether the terms and conditions of the instant contract are invalid

(1) Article 28 (Establishment of Guarantee Relationship) of the Credit Guarantee Fund Act (hereinafter referred to as the "Fund Act") shall, when the Fund has decided to provide a credit guarantee to a company, notify the relevant company and any prospective creditor of the company thereof. <2) Credit guarantee relationship is established when the principal obligation between the company notified under paragraph (1) and the creditor of the company, as provided in paragraph (1), comes into existence. <3) When the principal obligation has not been established within 60 days from the date of the notification under paragraph (1) of this Article, the relevant credit guarantee relationship shall not be established. The above purport of Article 3 (1) of the Credit Guarantee Agreement incorporated into the contract at the time of the conclusion of the instant credit guarantee contract is "the credit guarantee relationship under this guarantee agreement shall be established where the creditor executes one or more separate loans in conformity with the conditions of the credit guarantee within 60 days from the date of issuance of the letter of guarantee stated on the front side of this guarantee." Article 18 (4) of the Credit Guarantee Agreement does not state that "in the event of the performance of a loan in violation of Article 3 of the Credit Guarantee Agreement, the defendant."

(2) We examine the following. ① The terms and conditions of the contract of this case clearly provide for the details thereof based on Article 28 of the Fund Act. Article 28 of the Fund Act provides that the purpose of the contract of this case is to increase the time when credit guarantee is issued through credit investigation of the principal debtor at the time when a credit guarantee relationship is established. Thus, the guarantor, in order to prevent an occurrence of damages to the non-party, set a reasonable period for which the Korea Credit Guarantee Fund would maintain the initial credit status and to bear the responsibility for guarantee only to the principal obligation established within such reasonable period. ② The plaintiff's loan performance against non-party 1 is entirely responsible for determining whether it conforms to the terms and conditions of the credit guarantee in this case. Article 1 subparagraph 3 of the Credit Guarantee Clause provides that "the concept and specific scope of the loan implementation" is clearly defined as "payment (including bank transfer) of loans under the "loan Agreement", and ③ The plaintiff's ground that it is unreasonable to require the non-party 1 to provide a new credit guarantee agreement and to exclude it from being issued within 6 days after the initial credit guarantee agreement.

B. As to ratification and violation of the good faith principle

Without any objection for five years as alleged by the Plaintiff, even if the Defendant concluded an additional transaction agreement on several occasions for the extension of the term of guarantee to Nonparty 1, and notified the Plaintiff of each change in the terms of credit guarantee, there is no evidence to deem that the Defendant was aware of the first loan after the lapse of 60 days from the date of issuance of the first letter of credit guarantee at the time of the conclusion of each additional transaction agreement, in the instant case, the above facts alone are insufficient to recognize that the Defendant confirmed that a credit guarantee relationship was established against Nonparty 1’s loan obligations, or that the Defendant asserted immunity against the good faith while denying the establishment of a credit guarantee relationship, and there is no other evidence to support this otherwise, the Plaintiff’s above assertion is

C. As to whether the amended terms and conditions of the instant credit guarantee should be applied

According to the evidence evidence No. 16 of this case, if the basic loan agreement is newly concluded within 60 days from the date of notice of credit guarantee, the defendant's credit guarantee relationship is established. However, it is not because the terms and conditions of this case are the contents of the credit guarantee contract of this case, which are the contents of the credit guarantee contract of this case, but because the parties to this case have the legal or legal character, explicitly or implicitly agreed to be binding on the parties to the contract. Thus, even if the credit guarantee terms and conditions are revised favorably to the plaintiff or the non-party 1 who is the guarantor after the expiration of the credit guarantee period, the parties to the credit guarantee contract have explicit or implied agreement to apply the new credit guarantee terms and conditions to the existing credit guarantee contract, or the defendant does not have any new provision to the existing credit guarantee contract of this case before the amendment of the credit guarantee terms and conditions, the plaintiff's new credit guarantee terms and conditions as the contents of the credit guarantee contract of this case can not be applied to the new credit guarantee contract of this case.

D. Sub-committee

As seen above, since the Plaintiff’s first loan execution against Nonparty 1 was conducted on April 16, 2001 after the lapse of 60 days from February 1, 2001, which was the date of issuance of the letter of credit guarantee, the Defendant’s guarantee obligation was fully exempted in accordance with the above credit guarantee terms and conditions and the exemption criteria.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance which has different conclusions is unfair, so the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed and it is so decided as per

Judges Dog-charter (Presiding Judge)