[1] Whether a debtor and an underwriter are jointly and severally liable in a joint and several liability assumption in a joint and several liability assumption (affirmative in principle), and whether a non-joint and several liability relationship is not established in a case where an underwriter does not receive a request from an obligor

[2] Criteria for determining the share of the obligor jointly and severally liable for repayment and other joint discharge at his own expense, which can be claimed to the other obligor

[1] Articles 413 and 539 of the Civil Act / [2] Articles 413, 424, and 425 of the Civil Act

[1] [2] Supreme Court Decision 2012Da97420, 97437 decided August 20, 2014 (Gong2014Ha, 1791) / [1] Supreme Court Decision 2009Da32409 decided August 20, 2009 (Gong2009Ha, 1540)

Lot Construction Co., Ltd. (Law Firm Sejong, Attorneys Exclusive-hee et al., Counsel for the plaintiff-appellant)

National Bank of Korea (Law Firm Central, Attorneys Jeon Soo-soo et al., Counsel for the defendant-appellant)

An independent party intervenor 1 and five others (Attorneys crude Dai-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na62440, 62457 decided May 23, 2013

All appeals are dismissed. The costs of appeal are assessed against independent party intervenors.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Since it is very rare to accept the obligation through a contract with the obligee without the obligee’s request in the case of the assumption of the obligation jointly and severally liable obligation, the obligor and the underwriter are generally and severally liable for a joint and several liability relationship with the obligee, and if there is no subjective joint and several liability relationship due to the obligor’s request by the underwriter (see Supreme Court Decision 2009Da32409, Aug. 20, 2009, etc.). In addition, when one of the obligors jointly and severally liable has made repayment or other joint and several liability due to his own withdrawal, he may exercise the right to demand reimbursement for the portion to be borne by the other jointly and severally liable, but the share to be borne is presumed to be equal, or if there is a special agreement between the obligors and jointly liable or if the ratio of each obligor’s profit to be borne by the obligor is different in relation to

According to the reasoning of the judgment below and the records, the plaintiff as a contractor, as an independent party intervenor (hereinafter "the intervenor"), constructed condominiums and incidental facilities on the project site of this case as an executor, and entered into the business agreement of this case for the purpose of selling the building site and building with trust property; ② the business agreement of this case was entered into in the business agreement of this case with the participant to raise the total amount of business funds, such as land and construction expenses; and ③ the above participant, upon the termination of the business agreement, agreed to pay the principal and interest on the loan under the above loan agreement of this case and other business expenses immediately; ③ the plaintiff, in principle, bears the duty of completion of the liability and the duty of sale of the loan of this case, if the plaintiff fails to perform this by the final repayment date, shall concurrently assume the obligation of the above intervenor's loan of this case; ④ the loan of this case from March 28, 2008 to January 28, 2009, the plaintiff could delay the payment of interest on the loan of this case from this case to the participant.

In light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff, pursuant to the instant business agreement and loan agreement, concurrently assumed the obligation of the instant Intervenor, and thus, the Plaintiff and the said Intervenor jointly assumed the obligation of the instant Intervenor under a subjective joint and several obligation relationship with the Plaintiff and the said Intervenor. In light of the structure of the instant business and the content of the loan agreement, etc., it is reasonable to deem that the said Intervenor agreed to ultimately bear the obligation of the instant loan between the Plaintiff and the said Intervenor, or that the said Intervenor used the entire amount of the instant loan as the project cost for which

Therefore, the court below's conclusion that the plaintiff can exercise the right to indemnity against the above intervenor as to the whole repayment amount of the loan of this case is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal nature of the assumption of obligation and the legal principles as to the internal apportionment ratio, or omitting judgment.

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

After finding the facts as stated in its reasoning based on the adopted evidence, the court below held that the evidence submitted by the above intervenors alone is insufficient to recognize that the plaintiff failed to perform his duty of completing liability because the plaintiff did not intentionally take out the business rights of this case or start up the obligation to sell the responsibility, and that the plaintiff cannot be deemed as not acquiring the right to indemnity against the above Intervenor solely on the ground that the above Intervenor is seeking to gain enormous benefits by acquiring the status of the business operator, tourism business operator, and owner of the above Intervenor's business, status and authorization right as the business operator, tourism business operator and owner of the business, the business site and the site of this case, and the amount deposited in the project expense account, etc., as alleged by the above Intervenor, by exercising only the obligation to repay the loan to the lender, and by exercising the right to subrogation of the obligor.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to the burden of proof of causes attributable to the violation of the duty of completion of liability, as otherwise alleged in the ground of appeal.

3. As to the fourth ground for appeal

In light of the fact that the right to benefit under the instant trust agreement is “the right to receive money generated from the trust real estate and its operating profit and the equivalent right,” and is distinct from the right to claim for ownership transfer registration of the instant real estate, the lower court determined that the instant right to claim ownership transfer cannot be deemed null and void, since it is difficult to view that the said right to claim ownership transfer is included in the right to benefit under the instant trust agreement, which is the object of the instant right

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the right to benefit under the trust contract

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)