Where a bank has concluded a loan for consumption with a third party who is not the actual principal debtor in order to avoid the restriction on credit limit for the same person, whether the above loan contract for consumption is null and void as a joint signature (effective)

In order to establish a false agreement, the intention and indication of expression of intent are inconsistent with that of the other party, and there is an agreement with the other party as to such inconsistency. If a third party visits a bank directly and signs and seals it as a principal debtor in a monetary loan agreement, the third party itself indicates that it is the principal debtor in the relevant loan agreement for consumption. Even if a third party has the intention to obtain a loan under the name of a third party and to allow the third party to use it, or to repay principal and interest to the other party at his own expense, barring any special circumstance, it is merely an intention to vest the economic effect of the loan for consumption to the other party, and its legal effect cannot be deemed as an intention to vest the other party, and thus, it is difficult to deem that there is a disagreement with the intention of the third party.

Article 108 of the Civil Act

Supreme Court Decision 96Da18182 delivered on September 10, 1996 (Gong1996Ha, 3000) Supreme Court Decision 96Da21492 delivered on September 24, 1996 (Gong1996Ha, 3181), Supreme Court Decision 97Da8403 delivered on July 25, 1997 (Gong197Ha, 2694)

National Bank Co., Ltd. (Law Firm Rate, Attorneys Hy Chang-soo et al., Counsel for the defendant-appellant)

Defendant

Seoul District Court Decision 97Na56210 delivered on March 24, 1998

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the expiration of the period).

1. According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of the evidence of employment.

A. Nonparty 1 obtained a loan of KRW 10,00,00 on November 2, 1993 from the Plaintiff’s camdong Branch, the head of the Plaintiff’s camdong Branch, at the Plaintiff’s camdong Branch, from KRW 10,00,00 on November 2, 1993, and KRW 20,000 on December 10 of the same year. After Nonparty 2 was transferred to the camdong Branch, Nonparty 1 intended to obtain an additional loan of KRW 30,00,000 from the Dodong Branch, and Nonparty 2 could no longer obtain a loan under the name of Nonparty 1 due to the restriction on loans to the same person set out in the Plaintiff’s internal business guidelines, but at that time, Nonparty 1 could obtain a loan of KRW 300,00,000 under the name of the Plaintiff’s 300,000 in the name of the maximum debt amount, and explain it to the Defendant 160,001.

B. On November 25, 1994, the defendant and the non-party 1 entered into the loan agreement of this case with the main debtor and the non-party 1 as joint guarantor. The employee in charge of the plaintiff bank did not at all investigate the basic credit of the defendant's occupation or property status, etc. and had the defendant affix his signature and seal only to the main debtor column of the monetary loan loan agreement (Evidence A) and then delivered the passbook in the name of the defendant to the non-party 1. The non-party 1 paid interest on the loan by automatic transfer from his own account to his own account.

2. The lower court determined as follows on the basis of the foregoing facts recognized as follows.

The non-party 1 was unable to pay the defendant as a principal debtor in the form of a principal debtor in order to avoid the limit on credit to the same person as the principal debtor, and the bank of the plaintiff also understood this, and did not ask the defendant to conduct basic credit investigation or data as the principal debtor. Thus, the defendant is merely merely a person who lends the principal debtor's name, and between the plaintiff bank and the non-party 1 is the principal debtor as the substantial party to a loan for consumption. Thus, the loan contract of this case where the principal debtor is the principal debtor, it is reasonable to see that the contract of this case was formally done without the intent of debt burden under the understanding of the plaintiff bank, and thus, it constitutes a legal act that constitutes a false representation.

3. However, it is difficult to accept the fact-finding and decision of the court below in the following respect.

According to the number and credit situation inquiry (Evidence No. 4-5), customer credit information inquiry table (Evidence No. 4-4, 6-6), and credit customer registration table (Evidence No. 10-10), the Plaintiff bank prepared data, such as the number and credit inquiry, customer credit information inquiry table, credit customer registration table, etc. against the Defendant upon entering into the loan agreement of this case, and the number and credit inquiry meeting contains the details of transactions with the Defendant bank, the customer credit information inquiry table, credit information inquiry table, credit customer registration table, etc., and the customer credit information column and credit card issuance column include information on the customer credit information inquiry table, the fact-finding and credit card issuance column include information on the issuance of the Plaintiff's credit card as the principal debtor, and the Defendant's personal information on the relation with the non-party No. 1, a joint guarantor, as recognized by the lower court, is difficult to view that the Plaintiff bank did not conduct a basic investigation on the credit of the Defendant.

In addition, in order to establish a false agreement, the intention and indication of the expression of intent are inconsistent with that of the other party, and there is an agreement with the other party as to the difference. Even according to the factual relations acknowledged by the court below, the defendant directly visited the main branch of the plaintiff bank and signed and sealed as the principal debtor in the monetary loan agreement (Evidence A) for consumption. Thus, the defendant expressed his/her intention to the plaintiff bank as the principal debtor in the loan agreement for consumption of this case. As recognized by the court below, even if the defendant had an intention to obtain a loan from the same person designated by the plaintiff bank in the name of the defendant or intended to repay the principal and interest thereof at the expense of the non-party 1, barring any special circumstance, it is merely an intention to vest the economic effect of the loan for consumption of this case to the non-party 1, and it cannot be deemed that there is a disagreement between the defendant's intention and its indication (see, e.g., Supreme Court Decision 97Da8430, Jul. 25, 1997).

In addition, in light of the fact that the Plaintiff bank, upon entering into the loan agreement of this case, conducted a credit investigation into the Defendant as seen above and registered the Defendant as the principal debtor to the customer, it is reasonable to view that the Plaintiff bank as the principal debtor was also the Plaintiff bank, as indicated in the loan agreement of cash consumption (Evidence A).

Nevertheless, the court below erred in finding some facts as above and judged that the loan contract of this case was null and void because it constitutes a false conspiracy. The court below erred by misunderstanding facts in violation of the rules of evidence and misunderstanding the legal principles as to false conspiracy, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

4. 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 Cho Chang-hun (Presiding Justice)