[1] Whether guarantee of a bill of exchange is guaranteed in addition to a bill’s liabilities (negative)

[2] Whether the Korea Technology Finance Corporation can be deemed to guarantee a bill guarantee under the Financial Assistance to New Technology Businesses Act even a cause-based obligation (negative)

[1] In principle, a person who explicitly provides a guarantee on a promissory note issued by another person shall be liable only for the obligation arising from the guarantee on the promissory note. In particular, the person is liable for the guarantee on the underlying obligation only when he/she provides a guarantee on the promissory note with the purport that he/she guarantees the obligation that is the cause of the issuance of the promissory note. Thus, even if another person provides a guarantee on the promissory note issued and delivered by another person for the guarantee on the payment of the goods, it is nothing more than granting a guarantee on the underlying obligation under civil law, barring any special circumstance to deem that he/she provided a guarantee on the promissory note with the effect that he/she provided a guarantee on the payment of the goods to a supplier who enters into a contract for the supply of goods, and it cannot be viewed otherwise even if he/she was aware

[2] According to Articles 2 subparag. 7(b), 12, 17, 28 subparag. 3, and 29 subparag. 1 of the Financial Assistance to New Technology Businesses Act, and Article 4(2)3 of the Enforcement Decree of the same Act, even if the Korea Technology Credit Guarantee Fund stated a phrase stating a transaction obligation in the course of guaranteeing a bill of exchange, it is interpreted to the effect that the bill is issued as a security bill, and it is merely an interpretation to specify the secured transaction in the relation that the bill is issued as a security bill, and it cannot be deemed that the Korea Technology Credit Guarantee Fund directly provides a joint and several surety under the Civil Act for a transaction obligation, other than a bill guarantee, unless the said purport is indicated otherwise in its guarantee of a bill, it cannot be deemed that the Korea Technology Credit Guarantee Fund immediately provided a joint and several surety for a transaction obligation under the Civil Act for a security of the price for goods.

[1] Article 428 of the Civil Act, Articles 15 and 77 of the Bills of Exchange and Promissory Notes Act / [2] Article 428 of the Civil Act, Articles 15 and 77 of the Bills of Exchange and Promissory Notes Act, Article 2 subparag. 7 (b) of the Financial Assistance to New Technology Businesses Act, Articles 12, 17, 28 subparag. 3 and 29 subparag. 1 of the Act, Article 4(2)3 of the Enforcement Decree of the Financial Assistance to New Technology Businesses

[1] Supreme Court Decision 94Da5397 delivered on August 26, 1994 (Gong1994Ha, 2524) Supreme Court Decision 97Da3705 delivered on December 9, 1997 (Gong1998Sang, 227)

Elmmmmmm Co., Ltd. (Attorney Jeon Jong-gu, Counsel for defendant-appellant)

The Korea Technology Finance Corporation (Law Firm Jung-gu, Attorneys Jeong Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na22869 delivered on December 2, 1997

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

In principle, a person who guarantees a bill explicitly in a promissory note issued by another person shall be liable only for the obligation arising from the guarantee of the bill. In particular, the person bears the responsibility to guarantee the obligation for the cause of the bill only when he/she has guaranteed the obligation that is the cause of the issuance of the bill to the creditor. Thus, barring any special circumstance to deem that a guarantee of the bill was otherwise provided to a promissory note issued and delivered by another person for the guarantee of the payment of the goods to the supplier that entered into a contract for the supply of the goods, barring any special circumstance, it is nothing more than granting the credit by the guarantee of the obligation on the bill as the guarantor of the bill, and even if he/she was aware that the bill was issued and delivered for the guarantee of the payment of the goods to the supplier at the time of the guarantee of the bill, it cannot be viewed otherwise (see, e.g., Supreme Court Decisions 94Da5397, Aug. 26, 199; 97Da3705, Dec. 9, 1997).

However, according to the reasoning of the judgment of the court below, the court below comprehensively based on the evidence adopted in its judgment, provided the plaintiff with collateral of bills and other bills between the non-party company (hereinafter "non-party company") around July 19, 193, and provided the plaintiff with petrochemicals. If the non-party company did not honor or suspend current account transaction with a financial institution, it shall lose the benefit of the due date for the remainder of the bill and shall pay damages for delay in accordance with the overdue interest rate of general loans in commercial banks. While the non-party company was supplied with goods by the plaintiff as of April 16, 1996, the payment date of the non-party company was 200,00,000 won for the purpose of securing the payment of the bill and the non-party company's obligation to pay damages for delay to the plaintiff 97,00,000 won as of April 9, 1997, the defendant, while knowing that the bill in this case was issued for the purpose of securing the payment of the bill in this case, shall be deemed to be 97.

However, Articles 2 subparag. 7(b), 12, 17, 28 subparag. 3, and 29 subparag. 1 of the Financial Assistance to New Technology Businesses Act and Article 4(2)3 of the Enforcement Decree of the same Act provide that, even if the Defendant is a corporation established to guarantee the liabilities of enterprises which lack security requirement and facilitate financing of the company, the Defendant guarantees the monetary liabilities related to the payment of taxes, issuance or distribution of bills, construction or services, etc., as a general credit guarantee for companies below a certain size for the purpose of realizing the purpose of its establishment, and the method of guarantee is delegated by the Operating Committee established under Article 17 of the above Act. On the other hand, according to the records, the Defendant’s operating manual (record No. 88 pages) cannot be viewed as a method of issuing a credit guarantee certificate to the effect that the Defendant was aware of the fact that the payment of bills is guaranteed by the issuer of the bill in the manner of guaranteeing the obligations of the Plaintiff company after the issuance of the bill.

Nevertheless, it cannot be said that the court below erred by misapprehending the legal principles on the guarantee of bills and the guarantee of joint and several liability under the Civil Act, or by recognizing the facts without any evidence and thereby violating the rules of evidence, merely because the defendant was aware that the bill of this case was issued and delivered as a collateral bill. The part pointing this out in the grounds of appeal is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)