2012Na28065 Claims

Credit Guarantee Fund

A Stock Company

Seoul Central District Court Decision 2011Da104855 Decided May 29, 2012

November 1, 2012

November 15, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant shall jointly and severally pay to the plaintiff 85,345,279 won and 85,345,247 won among them to the service date of a copy of the complaint of this case and 15% per annum from February 23, 2011 to the service date of a copy of the complaint of this case and 20% per annum from the next day to the day of complete payment.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, except for adding the following judgments, and thus, it refers to the reasoning of the court of first instance pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on addition

The plaintiff asserts that the guarantee of October 27, 2008 was an obligation to pay the indemnity amount based on the guarantee of the above pre-existing date on October 27, 2003 to the plaintiff, since the extension of the guarantee term or the renewal of the guarantee term for the purpose of substitution for the extension of the repayment term. The national bank does not merely make a substitution for the plaintiff's notification of the change of the credit guarantee term, but it was a substitute with the renewal guarantee newly issued by the plaintiff. Thus, the defendant is obliged to pay the indemnity amount to the plaintiff based on the guarantee of the above pre-existing date on October 27, 2003.

However, the terms and conditions of the exemption of this case were applied from the terms and conditions which were enforced after January 1, 1986. The previous terms and conditions of the exemption of this case were extended based on the notice of change in the terms and conditions of guarantee for the extension of the principal obligation, and thus, the creditor bank (the national bank in this case) did not take the due process of extending the due date of the principal obligation, and it is frequently a dispute between the plaintiff and the creditor bank due to the interpretation of the identity, such as the existence and extinguishment of the guaranteed obligation and the existence of the former guaranteed obligation, etc., in case where the creditor bank (the national bank in this case) provided substitute loans in the form of a new loan without taking the due process of extending the due date of the principal obligation. Thus, the above exemption clause was newly added to the above new loan clause so that the plaintiff can prevent unexpected damages by investigating the changes in the property of the guarantor or the principal debtor and making it possible to take the re-guarantee procedure (see, e.g., Supreme Court Decision 88Meu2080, Sept. 27, 198).

In such a case, it shall be deemed that the existing obligation still remains a quasi-loan for consumption while maintaining the identity of the existing obligation. In such a case, unless there are special circumstances such as an agreement between the creditor (the National Bank in this case) and the guarantor to be exempted from the liability for guarantee in advance, but the creditor under the credit guarantee terms and conditions provide that the creditor shall not be exempted from the liability for substitute loan due to the notification of change in the terms and conditions of the credit guarantee, and if the creditor violates the terms and conditions of the credit guarantee, the credit guarantor shall not be exempted from the liability. The purport of the provision is to say that the credit guarantee liability of the credit guarantor shall be exempted even in a case where a substitute loan is made in accordance with the form of a new loan and the obligation remaining after the maintenance of the identity of the existing obligation (see, e.g., Supreme Court Decision 97Da16077, Feb. 27, 1998). In other words, the plaintiff's new guarantee obligation becomes final and conclusive if the existing credit guarantee obligation becomes final and conclusive in this case 200.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

New judges of the presiding judge;

Judges Compensation Board

Judges Lee Jae-Un

1) In the first instance trial, Defendant B Co., Ltd. and E accepted all of the Plaintiff’s claims.