2014Da15545 Claims, etc.

Seoul Credit Guarantee Foundation

B

Seoul Central District Court Decision 2013Na32351 Decided January 10, 2014

June 11, 2015

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.

According to the reasoning of the lower judgment, the lower court determined that: (a) based on its adopted evidence, the Plaintiff entered into the instant credit guarantee agreement with D on March 4, 2010; (b) as a joint and several surety for D under the said credit guarantee agreement; (c) D submitted a credit guarantee statement issued by the Plaintiff to an enterprise bank on the same day to obtain money from the enterprise bank; and (d) caused a credit guarantee accident on July 9, 2011; (b) however, A entered into the instant sales contract with the Defendant, which is only the sole property between the Defendant and the Defendant, on April 22, 2010, and completed the registration of the right to claim ownership transfer registration on each of the above real property under the Defendant’s name; (c) on the premise that A entered into the said sales contract on April 22, 2011; (d) it was highly probable that the Plaintiff’s credit guarantee bond was still established at the time of signing the said sales contract; and (d) it was highly probable that the Plaintiff’s credit guarantee bond was still established at the Plaintiff’s credit guarantee bond at the time.

However, according to the above facts acknowledged by the court below, as of April 22, 2010, the time when A and the defendant entered into the instant contract for the purchase and sale was not within three months from July 9, 201, which was the date of the occurrence of a credit guarantee accident, but within one year and two months from July 9, 201, as determined by the court below. Thus, the court below should have deliberated and judged on whether there was a high probability of the Plaintiff’s claim for the deposit against A as of April 22, 2010, which was the date of the instant contract and the conclusion of a contract.

Nevertheless, unlike facts acknowledged by the lower court, on April 22, 201, based on the premise that the instant trade reservation was concluded on April 22, 2011, the lower court determined that the Plaintiff was highly probable at the time of the conclusion of the instant trade reservation on the ground that the credit guarantee accident occurred at the time when three months have not elapsed since it was based on the premise that the instant trade reservation was concluded. In so doing, the lower court erred by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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

Justices Lee Jae-soo

Justices Kim Yong-deok

The Chief Justice Park Jae-young

Justices Kim Gin-young