[1] The meaning of "the signature of the guarantor" under Article 3 (1) of the Special Act on the Protection of the guarantor, and whether it constitutes an act of using another person as a substitute for the name of the guarantor (negative)

[2] The case holding that the court below erred by misapprehending legal principles, in a case where: (a) employees of the credit service company Gap, Eul and Byung were written as debtors; and (b) Byung were entered as joint and several sureties; (c) were given currency for examination of loan; (d) Byung prepared a loan contract, etc. with the name of Eul and Byung and sent it by facsimile; and (e) Byung responded to Eul's intent to stand a joint and several sureties; and (e) Gap loaned money to Byung; (b) Byung demanded Byung to prepare a joint and several sureties contract again; (c) Byung requested Byung to put up a joint and several sureties contract, but Byung refused to put it on the ground that Byung did not have an intention to stand a guarantee, although there was no proof as to the fact that Byung signed the joint and several sureties contract

[1] Article 3(1) of the former Special Act on the Protection of Suretys (amended by Act No. 13125, Feb. 3, 2015; hereinafter “former Act”) requires a guarantor’s name and seal or signature to express his/her intent to guarantee the existence and content of the guarantor by clearly expressing his/her intent to guarantee the method of verifying the existence and content of the guarantor, thereby preventing the dispute, while allowing the guarantor to provide a guarantee as a result of deliberation and inspection, to the extent possible.

In general, signatures refer to the entry of the nominal owner’s name on behalf of the guarantor, unlike the name and seal. However, if a third party on the signature of the guarantor includes the signature of the guarantor, the signature inherent purpose of the signature that the guarantor expresses his/her own intent is set aside, and it results in wide recognition of the establishment of a guarantee agreement through oral and practical words of the guarantor and a guarantee agreement that the guarantor does not know the contents of the guarantee, and this results in excluding the legislative intent of the former Act that intends to protect the guarantor from the decent act of guarantee.

Therefore, considering the legislative purpose, purport, and content of the former Act, it is reasonable to interpret that the “signing of the guarantor” under Article 3(1) of the former Act means, in principle, the name of the guarantor, and that another person’s act on behalf of the guarantor does not constitute an act of using the name of the guarantor.

[2] In a case where an employee of a credit service provider Gap corporation as a joint and several surety, Eul was entered as a debtor, Byung was entered as a joint and several surety, Eul was entered as a loan transaction contract and a contract for joint and several surety entered as a name of Eul and Byung, and Byung gave answers to Eul's intent to provide a loan to Eul by facsimile; Byung was given money; Byung requested Byung to prepare a joint and several surety contract again; Byung did not have an intention to provide a guarantee, the case holding that the court below's decision that the joint and several surety contract should, in principle, be signed by Byung in order to take effect as a guarantee contract for joint and several surety's signature, and it cannot be determined that Byung's signature was signed merely because it appears to have been signed in Byung's name in the column of the joint and several surety contract for joint and several surety; Byung's direct signature was not prepared in the above contract for joint and several surety's name or signed by Byung; Byung's direct signature was not prepared in the contract for joint and several surety's name; Byung's reply to the effect of guarantee contract for Byung's direct signature, but it did not err in Byung's opinion.

[1] Articles 1 and 3(1) of the former Special Act on the Protection of Suretys (Amended by Act No. 13125, Feb. 3, 2015; see Article 428-2(1) of the current Civil Act) / [2] Article 3(1) of the former Special Act on the Protection of Suretys (Amended by Act No. 13125, Feb. 3, 2015; see Article 428-2(1) of the current Civil Act)

[1] Supreme Court Decision 2013Da23372 Decided June 27, 2013 (Gong2013Ha, 1320)

Busan Loan Co., Ltd.

Defendant

Seoul Southern District Court Decision 2016Na51939 decided June 16, 2016

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

Judgment ex officio is made.

1. Article 3(1) of the former Special Act on the Protection of Suretys (amended by Act No. 13125, Feb. 3, 2015; hereinafter “former Act”) provides that “A guarantee shall take effect upon a written statement with the name and seal or signature of the guarantor.”

The former Surety Protection Act was enacted for the purpose of contributing to the settlement of a credit society by providing for special cases concerning guarantee under the Civil Act with respect to guarantee without any consideration to prevent the economic and mental damage of a guarantor due to guarantee under subparagraph (a) of the said Article, and by establishing a reasonable practice of guarantee contract for monetary obligations (Article 1). Such a request for a document with the name and seal or signature of a guarantor in the declaration of intent to guarantee is made by clearly expressing the intent to guarantee the means of confirmation as to the existence and content of guarantee, thereby guaranteeing the means of confirmation, and preventing disputes, while allowing the guarantor to guarantee as soon as possible, instead of entering into a decent guarantee (see Supreme Court Decision 2013Da23372, Jun. 27, 2013).

In general, signatures refer to the entry of the nominal owner’s name on behalf of the guarantor, unlike the name and seal. However, if a third party on the signature of the guarantor includes the signature of the guarantor, the signature inherent purpose of the signature that the guarantor expresses his/her own intent is set aside, and it results in wide recognition of the establishment of a guarantee agreement through oral and practical words of the guarantor and a guarantee agreement that the guarantor does not know the contents of the guarantee, and this results in excluding the legislative intent of the former Act that intends to protect the guarantor from the decent act of guarantee.

Therefore, considering the legislative purpose, purport, and content of the former Act, it is reasonable to interpret that the “signing of the guarantor” under Article 3(1) of the former Act means, in principle, the name of the guarantor, and that another person’s act on behalf of the guarantor does not constitute an act of using the name of the guarantor.

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On April 8, 2015, the Plaintiff, a credit service provider, received an application for a loan from the loan broker to the effect that “the Nonparty wishes to obtain a loan by setting the loan interest rate of eight million won from the Plaintiff at 34.9% per annum, and the Defendant guaranteed the above loan obligations.”

B. The Plaintiff’s employees received and confirmed the loan transaction contract and joint and several sureties contract stating the Nonparty and the Defendant’s name as joint and several sureties (hereinafter “instant joint and several sureties contract”), personal information provision agreement between the Nonparty and the Defendant, the Defendant’s resident registration certificate, the Defendant’s certificate of eligibility for health insurance, the Defendant’s health and long-term care insurance payment certificate, etc.

C. On April 10, 2015, the Plaintiff’s employee sent a telephone call for the examination of loan with the Defendant. The Defendant, upon informing the Plaintiff’s employee of the Plaintiff’s resident registration number, cooperateed in the procedure for identification, and responded to the effect that “the Nonparty is the person who was residing in the Dong Dong Dongdong, and the Defendant is residing in the apartment house that was concluded in the name of the Defendant with his family, work in the business department of ○○○, a vehicle parts agent, and sent the instant joint and several guarantee contract and credit information in writing and by facsimile.” The Defendant responded to the Defendant’s explanation that the Nonparty had the intent to stand as a joint and several surety.

D. On April 10, 2015, the Plaintiff extended a loan of KRW 8 million to the Nonparty at a rate of 34.9% per annum, and on April 10, 2020 as of the expiration date of the contract.

E. Meanwhile, the Plaintiff again requested the Defendant to prepare a joint and several surety contract, but the Defendant merely responded to telephone conversations with the guidance of the lending broker and refused to prepare a contract on the ground that he/she did not intend to guarantee.

F. The body of the defendant's name recorded in the column for joint and several sureties of the joint and several sureties contract of this case is different from the body of the accusation submitted by the defendant (Evidence No. 12) even if the body of the defendant is the first eye.

3. We examine the above facts in light of the legal principles as seen earlier.

If the joint and several surety contract of this case intends to take effect as a guarantee contract with the defendant's signature, it shall, in principle, be signed by the defendant himself/herself, and it is insufficient to sign by another person. Therefore, it shall not be determined that the defendant's signature exists with only the fact that there has been a signature in the column for the joint and several surety contract of this case, but it shall be clearly determined whether it was directly signed by the defendant or that it was signed by another person with the defendant's name. As to the fact that the defendant has signed directly, the plaintiff

However, although the defendant responded that he prepared the contract of joint and several sureties in the currency with the plaintiff's employees, it is doubtful whether the defendant's direct signature of the contract of joint and several sureties is sufficient to prove that the defendant's name in the column of joint and several sureties of the contract of this case can be different from the defendant's body in light of the circumstance that the defendant's name in the column of joint and several sureties of the contract of this case is different from the defendant's body.

4. Nevertheless, the lower court determined that the signature in the column of the joint and several sureties was valid as a joint and several sureties contract without thoroughly examining the process of preparing the instant joint and several sureties contract, and, in particular, examining whether the Defendant directly signed it.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the signature of the guarantor under Article 3(1) of the former Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)