2012Da200363 Guarantee obligations

Han Bank Co., Ltd., the taking over of lawsuit of Han Bank

The Korea Trade Insurance Corporation

Seoul Central District Court Decision 2012Na1909 Decided May 10, 2012

December 24, 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.

1. The lower court, citing the reasoning of the first instance judgment, concluded a credit guarantee agreement with the Plaintiff on April 30, 2008 and concluded a credit guarantee agreement of 2.5 million won with the Plaintiff on April 23, 2009 (hereinafter referred to as “A”), and concluded an additional credit guarantee agreement of 20,000 won, including the first credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 30,000 won and the second credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 4,000,000 won and the second credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 4,000 won and the second credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 20,000 won and the second credit guarantee agreement of 20,000 won.

Furthermore, the court below determined that the defendant is exempted from the liability for the guarantee accident occurred within the guarantee period of the second credit guarantee contract of this case as well as the guarantee liability under the first credit guarantee contract of this case, since the second credit guarantee contract of this case was merely a guarantee for the extension of the guarantee period of the first credit guarantee contract of this case, and it cannot be viewed as an independent guarantee independent, inasmuch as the second credit guarantee contract of this case was designated as a joint guarantor under the first credit guarantee contract of this case as the second credit guarantee contract of this case was already designated as a bad credit holder under the credit guarantee management rules of the Korea Federation of Banks, and the second credit guarantee contract of this case was not a new guarantee pursuant to Article 8 (1) 6 of the Export Credit Guarantee Guarantee Execution Agreement of the Korea Federation of Banks.

2. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

(1) According to the records, ① the Defendant entered into an export credit guarantee agreement with the Plaintiff, which is a bank (hereinafter referred to as the “Agreement”), and entrust the Plaintiff with the issuance of export credit guarantee certificates and incidental business related thereto with respect to the export credit guarantee operated by the Defendant; ② Article 5 of the Convention provides that the term “export credit guarantee agreement between the Defendant and the Plaintiff” has the same effect as the Convention; Article 6(2) and (3) of the Convention provides that the Plaintiff may be exempted from liability if the Plaintiff violated the provisions of the implementation agreement, etc.; ③ Article 8(1) of the Enforcement Agreement with the Defendant is prohibited from providing new credit guarantee; (6) of the Act provides that the term “the term “the term “the term “the term “the term “the term “the term” and “the term “the term” of “the term “the term” was 6” of the Act and the “the term “the term “the term was 1” of the Act and the “the term was 8” of the “the term “the term was ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever.

(2) Comprehensively taking account of these facts, B, at the time of the instant credit guarantee contract, was already designated as a person of bad credit standing under the Credit Information Management Regulations of the Korea Federation of Banks, but such reason is merely a ground for nullifying the instant credit guarantee contract itself, rather than a ground for nullifying the instant credit guarantee contract itself.

However, as seen earlier, the second credit guarantee contract of this case differs from the first credit guarantee contract of this case. Since the second credit guarantee contract of this case was newly issued even after the conclusion of the second credit guarantee contract of this case, the second credit guarantee contract of this case was concluded for the purpose of extending the guarantee period as the guarantee period of the first credit guarantee contract of this case expired, the second credit guarantee contract of this case is separate from the first credit guarantee contract of this case (see Supreme Court Decision 2004Da27730, Feb. 8, 2007). The purpose of the second credit guarantee contract of this case is to prevent cases where the defendant exempted the liability for the guarantee under the second credit guarantee contract of this case if the person who was designated as bad credit holder was jointly and severally surety from the guarantee liability of this case after the defendant fulfilled the guarantee liability of this case, it is difficult to view that the defendant's liability for the second credit guarantee contract of this case was not legitimate at the time when the second credit guarantee contract of this case was concluded, and it is difficult to establish the defendant's liability for the second credit guarantee contract of this case.

Therefore, in this case where the plaintiff is liable for the guarantee liability for the guarantee accident occurred during the guarantee period of the second credit guarantee contract of this case, unless the defendant asserts and proves that the defendant's exemption exists as stipulated in the enforcement agreement itself, which was enforced at the time of entering into the second credit guarantee contract of this case, the defendant is liable for the guarantee liability under the second credit guarantee contract of this case.

(3) Nevertheless, the lower court, based on its stated reasoning, determined that the Defendant was exempted from liability for the guarantee accident that occurred during the guarantee period of the instant secondary credit guarantee contract. In so doing, the lower court erred by misapprehending the legal doctrine on the credit guarantee agreement and exemption from liability, etc., thereby adversely affecting

3. 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok