[1] The case holding that it does not violate the Act on the Regulation of Terms and Conditions that, at the time of entering into a joint and several guarantee contract for the obligation for conditional facility loan loans acquired as collateral, the lending bank's "acquisition price as security for the lending bank" did not explain to

[2] Whether the liability of the guarantor may be limited to the reasonable scope in cases where a financial institution, the creditor of a joint and several surety contract for conditional loan for the acquisition of mortgage, delays in the calculation of the acquisition price of collateral without justifiable grounds after the completion of the acquisition of collateral and fails to notify the guarantor of the existence and scope of the guaranteed obligation, and causes damage, such as disability in exercising the right to indemnity, etc. (affirmative)

[1] In a case where the bank entered into a conditional joint and several sureties contract for the acquisition of collateral security for the purpose of supplementing physical collateral for the facility loan, and the time the planning facility which is the object of the loan guarantee for the guarantor's guarantee is to be acquired by the subsequent collateral security, and the bank's acquisition price for collateral security for the planned facility is below the amount of loan guaranteed by the "acquisition price for the loan" for the plan facility, the case holding that the failure of the lending bank to explain to the guarantor that the term "the acquisition price for collateral security for the loan bank" is not the "appraisal price for the loan" but the "final examination price assessed by the guarantee value on the basis of the appraisal price for the plan facility" is not contrary to the Regulation of Standardized Contracts Act

[2] In a case where a financial institution, the creditor of a joint and several surety loan contract for conditional loan for the acquisition of mortgage, delays the calculation of the acquisition price and insufficient amount of the collateral without justifiable grounds after the completion of the acquisition of collateral, fails to notify the guarantor as to whether the guarantor continues to exist and the scope of the guarantee, thereby causing loss to the guarantor, such as where the exercise of the guarantor's right to indemnity is hindered or the liability for guarantee is expanded, the financial institution's claim for the performance of the whole guarantee obligation to the guarantor cannot be used against the principle of good faith, and thus

[1] Article 105 of the Civil Code, Article 3 of the Regulation of Standardized Contracts Act / [2] Articles 2 and 429 of the Civil Code

Korea Asset Management Corporation (Attorney Kim Jong-sung, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Han-chul, Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Na3804 decided July 28, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the records, the fact-finding and judgment of the court below on the balance of the principal and interest of this case, interest not paid and delay damages are justified, and there is no violation of the calculation rules or violation of the reasoning, as otherwise alleged in the ground of appeal.

2. As to the grounds of appeal Nos. 2 and 3

The recognition of the obligation to specify and explain the terms and conditions to a business operator is only based on the reason that the customer is not aware of the content of the terms and conditions and is able to avoid unexpected disadvantages to the customer. Thus, even if the terms and conditions are prescribed, if the customer has been able to sufficiently expect without any separate explanation, it cannot be said that the business operator has the obligation to explain such matters (see, e.g., Supreme Court Decisions 9Da55533, Jul. 27, 2001; 2003Da7302, Apr. 27, 2004).

In light of the above legal principles and records, it is reasonable to view that the term "plan facilities" stipulated in the joint and several guarantee contract for conditional loan for the acquisition of facilities of this case cannot be deemed as including real estate installed. The meaning of "the acquisition price of real estate" under the monetary loan agreement of this case is not the "appraisal price" but the "the final evaluation price assessed by the Bank based on the appraisal price of the planned facilities". In light of the Bank's provision on the standard for credit business handling of the Bank, the characteristics of the conditional loan for the acquisition of facilities of this case, the general practices of financial transactions, and the understanding possibility of the defendants, etc., it is reasonable to view that the Industrial Bank of Korea did not explain the meaning of "the acquisition price of real estate" for the conditional loan for the acquisition of facilities of this case at the time of the conclusion of the joint and several guarantee contract of this case, it cannot be deemed as violating the Act on the Regulation of Terms and Conditions, even if it did not explain to the defendants about the meaning of "the acquisition price of real estate" in the contract of this case.

3. As to the fifth ground for appeal

As long as the formation of a disposition document is recognized as authentic, the court shall recognize the existence and content of the expression of intent as stated in the instrument, unless there is any clear and acceptable counter-proof that the contents of the statement are denied. Meanwhile, in cases where there is any difference in the interpretation of a contract between the parties and thus the interpretation of the parties as stated in the instrument is at issue, the court shall comprehensively consider the contents of the text, the motive and circumstances leading up to the agreement, the purpose to be achieved by the agreement, the parties' genuine intent, etc., and shall reasonably interpret it in accordance with logical and empirical rules. In particular, if the content of the contract claimed by one party imposes a serious liability on the other party, the court shall more strictly interpret the contents of the text (see, e.g., Supreme Court Decisions 200Da72572, May 24, 2002; 2007Da13640, Jul. 12, 2007).

In light of the above legal principles and the facts established by the court below, the joint and several guarantee contract of this case is concluded with the defendants in order to supplement the shortage of physical security compared to the size of the loan at the time of the loan of this case, and if the Industrial Bank of Korea acquires a security right sufficient to secure the new loan of this case, the defendants' joint and several guarantee liability will be extinguished. However, if the acquisition price of the planning facilities of this case by small and medium enterprises falls short of the amount of the loan, the defendants will continue to guarantee the loan until the date of collection of the loan."

However, according to the facts established by the court below, since the Industrial Bank of Korea's security acquisition price of the instant planned facilities is less than KRW 252 million, the principal amount of the instant facility loan is less than KRW 400 million, the Defendants still continue to bear the joint and several liability as to the "underpaid amount" regardless of the Industrial Bank of Korea's acquisition of the subsequent mortgage for the instant planned facilities, and the portion of the initial joint and several liability obligation exceeding the scope of the underpaid amount shall be deemed extinguished.

Therefore, the court below examined the above deficient amount and calculated the scope of the remaining principal and interest obligation to be performed by the Defendants by deeming the Defendants to bear joint and several liability, but on the premise that the Defendants still bear the guaranteed obligation with respect to the entire principal amount of the facility loan of this case and the outstanding interest and delay damages within the limit of KRW 520 million, the initial guarantee limit, the court below accepted the Plaintiff’s claim of this case against the Defendants. In so determining, the court below erred by misapprehending the legal principles on the interpretation of guarantee contract or the scope of the guaranteed obligation, which affected the conclusion of the judgment. The ground of appeal No. 5 pointing this out is with merit.

4. As to the fourth ground for appeal

A. A financial institution shall enter into a guarantee agreement with a guarantor to fill the shortage of physical collateral compared to the size of credit when it lends facilities to a primary debtor. Since a financial institution later acquires sufficient collateral to secure loans to the relevant facilities, it shall be deemed that the guaranteed liability ceases to exist: Provided, That if the acquisition price of collateral for the relevant financial institution falls short of the amount of loan, the guarantee agreement shall be understood as the structure of "the extinction of basic guarantee obligation at the time of acquiring the security of the financial institution or the existence of exceptional guarantee obligation" only for the amount falling short of the amount of loan. Therefore, if a financial institution fails to be notified of the existence of guaranteed obligation by the financial institution for a considerable period of time, it is highly likely that the acquisition of collateral by the financial institution becomes extinct. Accordingly, the guarantor shall exercise the prior right to indemnity and the right to indemnity against the primary debtor, or take necessary measures against the financial institution to prevent the expansion of guarantee liability due to the increase in the amount of guarantee obligation, etc., without delay in calculating the acquisition price of collateral, it shall be deemed that the financial institution's reasonable and reasonable extent of acquisition price of collateral shall be excluded.

B. According to the reasoning of the judgment below, the court below acknowledged that the Industrial Bank of Korea's standard for conducting credit business applicable to a joint and several surety loan contract for conditional loan for acquiring conditional loan for acquisition of mortgage in this case provides that "if the final appraisal price of planning facilities falls short of the relevant loan, the Industrial Bank of Korea shall continue to exist until the recovery date of the loan, and in this case, it shall notify the relevant guarantor of the existence of the liability to guarantee within 45 days after the acquisition of the loan." In light of the aforementioned legal principles and the facts established by the court below, there is no evidence to prove that the Industrial Bank of Korea has notified the Defendants of the existence of the guaranteed obligation under the above provision. In light of the above legal principles and the facts established by the court below, the Industrial Bank of Korea concluded a joint and several surety contract for conditional loan for acquisition of conditional loan for facilities in this case, which is interpreted as mentioned above, and concluded a final examination of the acquisition price in 250,200,000 won, the Industrial Bank of Korea can be seen as giving notice to the Defendants without delay as to the extent of the guaranteed obligation.

Therefore, the court below should have examined whether the Industrial Bank of Korea delayed notice to the Defendants without any justifiable reason, and whether the Defendants suffered any loss therefrom, and should have deliberated and judged on whether the Industrial Bank of Korea’s claim for full performance of the guaranteed obligation against the Defendants could not be made in violation of the good faith principle, and thus, the Defendants’ obligation to provide notice on the existence of guaranteed obligation within a reasonable scope. However, there is no provision stipulating the Industrial Bank of Korea’s obligation to notify the existence of guaranteed obligation in the instant monetary loan agreement and the basic terms and conditions for banking transactions, and there is no provision stipulating the Industrial Bank of Korea’s duty to provide notice on the existence of guaranteed obligation, and the Industrial Bank of Korea’s standard for credit business handling cannot be deemed as affecting the guaranteed obligation even if the Industrial Bank of Korea did not provide such notice. Thus, the court below rejected the Defendants’ claim that the Defendants’ obligation to provide guarantee liability should be reduced or exempted under the good faith principle. In so doing, the court below erred by misapprehending the legal principles on the limitation of the guaranteed liability under the good faith principle, which affected the conclusion

5. Conclusion

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.

Justices Yang Sung-tae (Presiding Justice)