(영문) 서울서부지방법원 2017.11.24 2017가단7548

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(영문) 서울서부지방법원 2017.11.24 2017가단7548

공사대금

Text

1. The Defendants jointly share KRW 44,500,000 with respect to the Plaintiff and 6% per annum from July 1, 2016 to May 1, 2017.

Reasons

1. According to the overall purport of evidence Nos. 1 and 2 of the judgment as to the cause of the claim, the Plaintiff entered into a contract with the Defendant A Co., Ltd. (hereinafter “Defendant A”) on the construction of the model house exhibition hall around October 2014, and entered into a modified contract with the Gu Co., Ltd. (hereinafter “Defendant A”) on July 23, 2015, with the contract amount of KRW 760 million as of July 23, 2015; and ② Defendant A shall pay the Plaintiff the amount of KRW 44,500,000 for unpaid construction payment until June 30, 2016. The Defendant B, the representative director of the Defendant A, has the obligation to guarantee the obligation to pay the above construction price of the Defendant A by the date following the contract, and the Defendants shall jointly pay the Plaintiff the unpaid construction price of KRW 44,500,000,000 and delay damages by the date of the contract with the Plaintiff from July 15, 2016.

2. Determination as to Defendant B’s defense

A. Defendant B asserts that since it is a simple surety rather than a joint and several surety, the Plaintiff should first claim the payment of the construction cost of this case against Defendant A who is the principal obligor.

B. On the other hand, even though Defendant B is a simple guarantor, when an obligee claims a guarantor to perform the obligation, the surety may prove that the obligee has the ability to perform the obligation, and that it would be easy to execute the obligation, and that the obligee must first claim against the principal obligor and execute the property. Thus, the surety’s highest and search defense right can be established when the guarantor proves that the principal obligor has the ability to perform and it is easy to execute the obligation, and it cannot be asserted that the obligee first claim against the principal obligor.

It is sufficient that the principal debtor has the ability to repay the defendant SP as the principal debtor.

참조조문

-민법 제437조

-상법

-소송촉진 등에 관한 특례법

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