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1. The part against Defendant B among the judgment of the first instance is revoked.
2. Defendant B shall pay to the Plaintiff KRW 238,131,557 and its amount.
Reasons
1. Basic facts
A. On March 13, 2006, the Plaintiff: (a) deposited KRW 260,000,000 (hereinafter “instant loan”) with interest rate of KRW 3,100,000 per month; and (b) at the maturity of payment, determined the remainder before the sale of the D building; and (c) Defendant C guaranteed Defendant B’s obligation for the said loan.
B. On January 10, 2007, the Plaintiff paid interest of KRW 3,100,00 each month from January 30, 2007 to December 30, 2007 with respect to the instant loan, and thereafter, 362,984,713 won including interest of KRW 14% per annum 102,984,713 for five years from January 30, 2008 to December 30, 2012, the Plaintiff shall pay KRW 6,049,745 won as at the end of 6,049,745 won each month from January 30, 2008 to December 30, 2012, and when Defendant B delayed payment of the principal and interest, the Plaintiff prepared a notarial deed stating that he will naturally lose the remainder of his interest without any other notice or peremptory notice and immediately repay it (hereinafter “notarial deed”).
C. From January 31, 2008 to January 19, 2009, Defendant B paid to the Plaintiff KRW 40,000,000 as the principal and interest of the instant loan over 11 times.
[Judgment of the court below] The ground for recognition is without merit, Gap evidence Nos. 1 and 2, and the ground for appeal
2. According to the above facts of recognition as to the cause of claim, KRW 40,00,00 that Defendant B paid to the Plaintiff was less than KRW 42,348,215 ( KRW 6,049,745 x KRW 7) of the total amount of principal and interest that Defendant B owes up to seven times. As such, Defendant B lost the benefit of the term of the instant loan on July 31, 2008, at least seven occasions following the day following the day on which the principal and interest are repaid, and thus, the maturity for the entire principal of the instant loan arrives.
Therefore, Defendant B and Defendant C, the primary debtor, are jointly and severally liable as follows, since the instant loan obligations owed to the Plaintiff by Defendant B arising from commercial activities, Defendant C is the primary debtor pursuant to Article 57(2) of the Commercial Act.