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(영문) 창원지방법원통영지원 2017.06.14 2016가단21567
대여금
Text

1. The Defendants: (a) KRW 50,000,000 for each Plaintiff; and (b) each month from April 14, 201 to the date of full payment.

Reasons

1. In addition to the allegations in the evidence Nos. 1 and 2 as to the Plaintiff’s claim, the Plaintiff lent KRW 50,000,000 to Defendant B on April 14, 201, and Defendant C guaranteed the Defendant’s above loan obligation.

Therefore, barring any special circumstance, the Defendants are obligated to pay to the Plaintiff KRW 50,000,000 for each of the loans and delay damages therefor.

2. Determination as to Defendant C’s defense, etc.

A. The gist of the defense, etc. is that Defendant C becomes a guarantor for the guarantee period from April 14, 201 to June 14, 2011, and that Defendant C was not accompanied by Defendant C at the time of preparing a new loan certificate in 2012 can be deemed to have an implied agreement on the termination of the guarantee agreement.

In addition, since the Plaintiff and Defendant B entered into a new monetary loan contract with the content of extending the maturity period, this constitutes a novation, Defendant C does not bear any obligation as a guarantor any longer.

On the other hand, Defendant C had a defense of peremptory notice and search under Article 437 of the Civil Code, but did not prove the fact that the principal obligor has the ability to repay and that its execution would be easy.

Although there was a claim for exemption from liability due to a violation of the notification obligation under Article 5 of the Special Act on the Protection of Surety, it did not prove the damage caused by the violation of the notification obligation.

No further examination is conducted on the above two arguments.

B. The novation of Article 500 of the Civil Act is a contract under which the main part of the existing debt is changed to extinguish the existing debt and to establish a new debt without identity.

If a new arrangement is made with respect to existing obligations, whether such an arrangement constitutes novation or simply changes the maturity or method of repayment of existing obligations shall be determined by the intent of the parties, and if the intent of the parties is not clear.

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