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(영문) 수원지방법원성남지원 2015.11.25 2015가합2214
보증채무금
Text

1. The defendant shall pay to the plaintiff the amount of KRW 204,542,113 and the amount of KRW 86,602,387 from February 13, 2015 to the date of full payment.

Reasons

1. Facts of recognition;

A. On July 15, 2006, the Plaintiff lent 100 million won interest rate of 2% to C, and on July 15, 2007, the due date for payment was determined and lent to C. The Defendant guaranteed the above loan obligations against C on the same day.

B. On July 21, 2006, the Defendant created each right to collateral security with respect to their respective shares among the land owned by the Defendant in Gwangju City D, E, and F, and each right to collateral security with respect to the Plaintiff as the mortgagee.

C. The Plaintiff was paid only interest from C until July 15, 2008, and was unable to receive 100 million won of the leased principal and interest thereon after July 16, 2008, and applied for a voluntary auction based on the right to collateral security established on each of the above lands owned by the Defendant, and received dividends of KRW 53,397,613 during the said voluntary auction procedure on February 12, 2015.

[The grounds for recognition] of absence of dispute, entry of Gap evidence 1 through 3, the purport of the whole pleadings and arguments.

2. According to the above facts of determination as to the cause of the claim, the defendant, as a joint and several surety, has the obligation to pay the plaintiff a loan of KRW 100 million and interest at the rate of 24% per annum from July 16, 2008 to the date of full payment.

Meanwhile, the Plaintiff received 40,00,000 won out of 53,397,613 won as dividends in the auction procedure at a voluntary auction procedure, and the remainder 13,397,613 won as to the principal and the remainder 13,397,613 won as to the appropriation of payment to the principal. However, the order of appropriation is stipulated in Article 479 of the Civil Act as to the expenses, interest, and principal, and Article 476 of the Civil Act as to the appropriation of payment to the principal is not applicable mutatis mutandis. Thus, unless there is a special agreement between the parties, such appropriation shall be made in the order of appropriation to the expenses, interest, and principal, and even

(see, e.g., Supreme Court Decision 80Da3009, May 26, 1981). Thus, there is no evidence to prove that there was an agreement between the Plaintiff and the Defendant on the appropriation of debt.

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