(영문) 대법원 2019.10.31.선고 2017다279586 판결

1. Article 3(1) of the former Special Act on the Protection of Suretys (amended by Act No. 13125, Feb. 3, 2015) provides that “A guarantee shall take effect when the intent is written with the name and seal or signature of the guarantor.” The term “the signature of the guarantor” stipulated in the foregoing provision means, in principle, the name of the guarantor himself/herself, and it is reasonable to interpret that it does not constitute a substitute for the name of the guarantor (see Supreme Court Decisions 2016Da233576, Dec. 13, 2017; 2018Da282473, Mar. 14, 2019).

2. The reasoning of the lower judgment and the record reveal the following facts.

A. D, upon receiving a copy of the Defendant’s driver’s license from the Defendant, filed an application for the instant loan with C Co., Ltd. (hereinafter “Non-Party C Bank”), and prepared a letter of credit guarantee and a credit transaction agreement (hereinafter “the instant joint and several guarantee agreement”) with the content that “the Defendant is jointly and severally guaranteed the Defendant’s obligation of the instant loan.” The Defendant’s name recorded in the column for each joint and several surety of the written document is written written agreement with D, but did not sign and seal it.

B. D submitted the instant joint and several guarantee contract and the copy of the driver’s license under the name of the Defendant to the Nonparty C Bank for a defect in the application for the loan, the employees of the Nonparty C Bank directly contact the Defendant by telephone and asked the Defendant about whether he/she is the Defendant, whether he/she was written in the instant joint and several guarantee contract, and whether he/she wishes to provide a joint and several guarantee for D, and at that time, the Defendant responded to the purport that

3. Examining the above facts in light of the legal principles as seen earlier, the joint and several guarantee contract of this case is not directly signed by the defendant but signed by D in the name of the defendant, and even if the defendant had expressed his intent of joint and several guarantee for the debt of this case by telephone call with the employees of the non-party Cbank, it cannot be deemed as the name and seal or signature of

Unless there exist any circumstances, it is reasonable to view that a guarantee does not take effect, and even if D was delegated by the Defendant and instead of the Defendant’s signature, it does not change.

4. Nevertheless, based on the circumstances indicated in its reasoning, the lower court determined that, even if the Defendant did not directly sign and affix a seal on the instant joint and several guarantee contract, it is reasonable to deem that it delegated D and caused it to sign the above document in the name of the Defendant and sign the name and sign, thereby making the Defendant enter into a joint and several guarantee contract for the instant loan obligation by proxy. Even if not, it is reasonable to deem that the Defendant was ex post facto engaged in the joint and several guarantee contract between Nonparty C Bank and the Defendant on the debt of the instant loan in the name of the Defendant. The lower court determined to the effect that the joint and several guarantee contract between Nonparty C Bank and the Defendant was valid.

As a result, the judgment of the court below was erroneous in its determination contrary to the precedents of the Supreme Court, as stipulated in Article 3 subparagraph 2 of the Trial of Small Claims Act.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.