[1] In a case where a credit guarantee relationship is established only when a certain condition is met, and the requirements for a credit guarantee certificate issued by a credit guarantee agency are stated as matters of special agreement, whether a credit guarantee relationship is established only when a special agreement is satisfied (affirmative), and in a case where a credit guarantee relationship is not established under a credit guarantee agreement, if a credit guarantee agency's exemption is stipulated as such, whether the failure of a credit guarantee relationship can be deemed as a mere reason for exemption

[2] Matters to be proved by a person who revokes his/her declaration of intent on grounds of mistake

[1] A credit guarantee agreement provides that a credit guarantee relationship shall be established only when a certain condition is met, and where a credit guarantee agreement issued by a credit guarantee agency is stated as a special agreement, the special agreement shall be satisfied, and the credit guarantee relationship shall be established only when the special agreement is fulfilled. Even if a credit guarantee agreement provides that a credit guarantee agreement does not establish a credit guarantee agreement as an exemption from the liability of a credit guarantee agency, it shall be deemed as the confirmation that a credit guarantee agency is not responsible for the failure of a credit guarantee relationship

[2] A person who revokes an expression of intent on the ground of mistake shall prove that an error had a critical impact on the expression of intent, along with the fact that there was an error in the content of a juristic act. In other words, he/she shall prove that he/she would not have made an expression of intent if he

[1] Article 105 of the Civil Act / [2] Article 109 of the Civil Act

[2] Supreme Court Decision 2007Da74188 decided Jan. 17, 2008 (Gong2008Sang, 218)

Industrial Bank of Korea (Bae & Yang LLC, Attorneys Kang Jong-young et al., Counsel for the defendant-appellant)

Gyeonggi Credit Guarantee Foundation (Law Firm Rotex, Attorneys Cho Han-tae et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2016Na23501 Decided July 13, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Basic factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. The Defendant entered into a credit guarantee agreement with Atex (hereinafter “Axx”) and issued a credit guarantee agreement as follows. Axx was loaned according to the credit guarantee agreement.

(1) On July 30, 2010, the Defendant issued 50,000,000 won guarantee principal and 150,000,000 credit guarantee form in the name of the Agricultural Cooperatives Federation (hereinafter “instant 1 guarantee”). The Agricultural Cooperatives Federation received the said two credit guarantee form from August 2, 2010, and lent KRW 200,000,000 to uex (hereinafter “instant 1 loan”).

(2) On June 30, 201, the Defendant issued to the Plaintiff a credit guarantee statement of KRW 180,000,000 as the guaranteed amount, KRW 180,000,00 as the surety, and the credit guarantee statement of June 29, 2012 as of June 29, 2012 (hereinafter “instant guarantee”). On the same day, the Plaintiff received the said credit guarantee statement and lent KRW 200,000,000 to Ntex (hereinafter “instant second loan”).

Article 5 of the Credit Guarantee Clause attached to the Credit Guarantee Clause 2 of this case provides that "the whole or part of the loan shall be implemented within 60 days from the date of notification of the credit guarantee" under Paragraph 1 Item 3 of the same Article. In addition, Article 22 of the above Terms and Conditions provide that "when the loan is performed in violation of Article 5 (Establishment of Credit Guarantee Relationship)" is not liable for all or part of the guaranteed obligation.

(3) The Defendant issued to the Plaintiff a guarantee of No. 2, the guaranteed amount, the guaranteed amount, and the guarantee amount, the guarantee period of which is the same as the surety, and the guarantee period of which is June 28, 2013 (hereinafter “instant guarantee”). The said guarantee statement contains a special clause stipulating that the instant guarantee is a condition to recover the letter of guarantee No. 2. The Plaintiff granted a refund loan of KRW 200,000,000 on June 29, 2012 (hereinafter “instant third loan”).

B. In regard to the three loans of this case, Nex lost the benefit of time due to its failure to repay the principal. On July 24, 2014, the Plaintiff notified the Defendant of a credit guarantee accident, and on August 12, 2014, requested the Defendant to pay the guaranteed debt under the third guarantee, and on the same day, the first loan of this case was fully repaid.

2. Whether the credit guarantee relationship was not established or exempted (ground of appeal Nos. 1 and 2)

A. The lower court determined as follows, on the Defendant’s assertion that the Defendant did not establish a credit guarantee relationship or exempted from liability, while the Defendant had a duty to pay the Plaintiff the guaranteed liability, since a guarantee accident under the third guarantee of this case occurred.

According to Article 22 of the Credit Guarantee Terms and Conditions, the instant special agreement constitutes not the requirements for the establishment of a guarantee agreement but the grounds for exemption from the time of non-performance. Since the instant special agreement only prescribes the repayment of the instant loan as the condition of guarantee 2, it does not limit the time and method of repayment, the Defendant’s argument that the instant special agreement should be implemented within 60 days cannot be accepted.

B. A credit guarantee relationship is established only when certain requirements are met in a credit guarantee agreement, and where the requirements are stated in a credit guarantee certificate issued by a credit guarantee agency as matters stipulated in a special agreement, such special agreement shall be met, and the credit guarantee relationship shall be established only if the special agreement is met. Even if a credit guarantee agreement provides that the credit guarantee agreement does not establish a credit guarantee agency's exemption from liability, it shall be deemed as the confirmation that the credit guarantee agency does not bear responsibility because it does not establish a credit guarantee relationship.

In light of the above facts and legal principles, the instant special agreement is deemed as a credit guarantee condition, and thus, it is inappropriate for the lower court to deem otherwise to have the grounds for exemption. However, in light of the content and purport of the said credit guarantee clause, the lower court’s conclusion that the Defendant is liable for the obligation under the instant third guarantee on the premise that the time limit for the performance of the instant special agreement was not set. In so determining, the lower court did not err by misapprehending the legal doctrine on the interpretation of the

3. Whether to revoke a declaration of intent by mistake (ground of appeal No. 3)

A person who revokes his/her declaration of intent on grounds of mistake, together with the fact that there was an error in the contents of a juristic act, had a critical impact on the declaration of intent, that is, the person must prove that he/she would not have made the declaration of intent if he/she had not made a mistake (see Supreme Court Decision 2007Da74188, Jan. 17, 2008, etc.).

The lower court rejected the Defendant’s assertion of revocation of declaration of intention by mistake on the ground that there was insufficient proof as to the Defendant at the time of the third guarantee of the instant case as to the fact that there was an error in the content of the legal act and that there was no declaration

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine regarding the revocation of declaration of intent by mistake, without exhaust

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)