Whether the debtor and the underwriter are jointly and severally liable in the overlapping assumption of the obligation

Since it is very rare to take over the obligation by contract with the obligee without the obligee's request, the obligor and the underwriter are in principle a joint and several liability relationship with a subjective joint and several liability relationship, and if there is no subjective joint and several relationship because the underwriter did not receive the obligor's request, it shall be deemed that there is a non-joint and several relationship.

Articles 413 and 453 of the Civil Act

Plaintiff Co., Ltd. (Law Firm Spotsan, Attorneys Park Young-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 Co., Ltd. and three others (Law Firm Gyeong & Yang, Attorneys Jeong Jae-deok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na46052 decided March 25, 2009

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. Without being alleged in the lower court, any assertion newly made in the final appeal cannot be a legitimate ground of appeal against the lower judgment (see, e.g., Supreme Court Decision 2001Da63575, Jan. 25, 2002).

The record reveals that the repayment period of the instant loan obligation against the Plaintiff of Nonparty 1 was October 20, 1999, and thus, the benefit of time was lost due to the non-party 1 corporation’s default on or around January 2, 199. In such a case, the occurrence of the cause for loss of time limit does not immediately lead to the arrival of the due date, and the Plaintiff’s notification or claim, which is the obligee, must be interpreted as the arrival of the due date only when the obligee acted in the obligee’s intent. Thus, the allegation in the grounds of appeal that this part of the grounds of appeal cannot be a legitimate ground of appeal.

2. As to the Defendants’ assertion on the expiration of the extinctive prescription period, the Plaintiff’s claim for the instant loan to the Defendants and the instant claim for reimbursement against Nonparty 1 corporation on November 10, 2001, prior to the expiration of the extinctive prescription period, and around April 19, 2005, the Plaintiff filed a judicial claim against Nonparty 1 corporation. Defendant 1 and Defendant 2, the overlapping obligation of the instant claim for reimbursement with the Plaintiff, are acknowledged as having a subjective co-ownership relationship with Nonparty 1 corporation, and Defendant 1 and Defendant 2, the obligor of the instant claim for reimbursement with Defendant 1 corporation, on the ground that it appears to be jointly and severally liable with Nonparty 1 corporation, the obligor, and Defendant 2 corporation, on the ground that it did not have any legal effect of the aforementioned joint and several debt acquisition relationship with Defendant 1 corporation on the ground that it did not reach the conclusion of the extinctive prescription period, the lower court rejected all of the aforementioned joint and several debt acquisition relationship between Defendant 1 and Defendant 2, the joint and several liability relationship with Defendant 1 corporation.

However, we cannot accept the above decision of the court below for the following reasons.

In the overlapping assumption of obligation, it is very rare to take over the obligation through a contract with the obligee without the obligee’s request. Therefore, in principle, the obligor and the underwriter are jointly and severally related to the obligor and the obligor are in a subjective joint and several liability relationship, and if there is no subjective joint and several liability relationship due to the obligor’s request. However, in light of the reasoning of the lower judgment and the record, Defendant 1 and Defendant 2, under the overlapping assumption of obligation contract between Nonparty 1 and Defendant 1 and Defendant 1 and Defendant 1 and Defendant 2’s each of the instant joint and several obligation obligations as set forth in the overlapping assumption of obligation contract, are clearly performed with Nonparty 1 and Defendant 2’s joint and several obligation obligations as set forth in the instant joint and several obligation obligations, and Nonparty 1 and Defendant 2 agreed to it. In light of the aforementioned legal principles, it is reasonable to view that the aforementioned joint and several obligation relationship between Defendant 1 and Nonparty 2, the obligor, and Nonparty 1 and Defendant 1, the obligor, in accordance with the aforementioned joint and several obligation relationship.

Nevertheless, the court below rejected the plaintiff's above assertion solely on the grounds stated in the above judgment. The court below erred in the misapprehension of legal principles as to the overlapping assumption of obligation, etc., and it is obvious that this error affected the judgment.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Shin Young-chul (Presiding Justice)