[1] The responsibility of a joint guarantor under a credit guarantee agreement and the oligopolistic stockholder's oligopolistic stockholder's liability under Article 45 of the former Credit Guarantee Fund Act and its identity (negative)

[2] The purpose of the Credit Guarantee Fund's business entrustment agreement is that where a financial institution provides a credit guarantee to a credit guarantee company, where all oligopolistic stockholders of the guaranteed company are not established as a joint guarantor for the guaranteed company, part of the guarantee liability of the Credit Guarantee Fund shall be exempted

[1] The scope of the right to indemnity acquired by the Korea Credit Guarantee Fund which has fulfilled a credit guarantee obligation against the "director who is a primary shareholder" shall not be the same as the case where the "director who is a primary shareholder is a joint and several surety under the credit guarantee agreement, and where only the former Credit Guarantee Fund (amended by Act No. 4953 of Aug. 4, 1995) is liable for legal liability under Article 45 of the former Credit Guarantee Fund Act. In other words, where the "major shareholder" becomes a joint and several surety under the credit guarantee agreement, he shall be liable for the repayment of the total amount of the loan and the amount of damages at the rate determined by the Credit Guarantee Fund. On the other hand, the "director who is not a joint and several surety" and "director who is a primary shareholder" are merely liable for the repayment of the loan to the Korea Credit Guarantee Fund in accordance with the above provision.

[2] In the Credit Guarantee Fund business entrustment agreement between financial institutions, the Korea Credit Guarantee Fund stipulates that the "director who is an oligopolistic shareholder of the guaranteed company" shall be established as a joint and several sureties for the purpose of securing the right to indemnity when the Credit Guarantee Fund performs the guaranteed obligation. However, since the Korea Credit Guarantee Fund has a close interest in the business and has a direct and indirect influence on the business management, it can be known that the purpose of promoting the sound management of the guaranteed company and promoting the soundness of the guarantee is also also to promote the soundness of the guarantee. Therefore, the validity of the agreement that allows the Korea Credit Guarantee Fund to be exempted from part of the guaranteed liability when the Korea Credit Guarantee Fund fails to establish as a joint and several sureties, solely on whether

[1] Article 45 of the former Credit Guarantee Fund Act (amended by Act No. 4953 of Aug. 4, 1995), Article 25 subparagraph 1 of the former Enforcement Decree of the Credit Guarantee Fund Act (amended by Presidential Decree No. 14828 of Dec. 14, 1995) / [2] Article 45 of the former Credit Guarantee Fund Act (amended by Act No. 4953 of Aug. 4, 1995), Article 25 subparagraph 1 of the former Enforcement Decree of the Credit Guarantee Fund Act (amended by Presidential Decree No. 14828 of Dec. 14, 1995)

Industrial Bank of Korea (Attorney Kim Jong-il, Counsel for defendant-appellee)

(Attorney Jeong-nam, Counsel for defendant-appellee)

Seoul District Court Decision 97Na38915 delivered on May 14, 1998

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

We examine the grounds of appeal.

The court below rejected the defendant's assertion that the defendant's joint and several surety's shares owned by the non-party 1, the representative director of the above company, and the non-party 5's shares owned by the non-party 1, the director of non-party 1, and the director of non-party 1, the defendant's joint and several surety under Article 25 (1) of the former Enforcement Decree of the Credit Guarantee Fund Act (amended by Presidential Decree No. 14828 of Dec. 14, 1995) should be established as joint and several surety for the guaranteed company. If the defendant violated the above guidelines, the defendant shall be exempted from the liability corresponding to the certain ratio of the decision of the court below. In handling the credit guarantee contract of this case for the non-party 1, the defendant's joint and several surety, the above company's joint and several surety's shares owned by the non-party 1, the director of non-party 1, the above company's mother's 20/100, and the plaintiff did not receive the above 100's indemnity.

However, we cannot accept the above judgment of the court below.

First of all, the scope of the right to indemnity acquired by the defendant who has fulfilled the credit guarantee obligation against the "director who is a primary shareholder" shall not be the same in the case where the "director who is a primary shareholder is a joint and several surety under the credit guarantee agreement and he is liable only under Article 45 of the above Act. In other words, in the case where the "director who is a primary shareholder" becomes a joint and several surety under the credit guarantee agreement, he is liable for the repayment amount and the total amount of damages determined by the defendant to the defendant who has performed the guarantee obligation under Article 11 of the Credit Guarantee Agreement (Evidence 2), while the "director who is a primary and several surety" is liable only for the repayment of the loan obligation to the plaintiff jointly and severally with the company subject to the credit guarantee obligation under the above law, and as a result, the defendant who has performed the credit guarantee obligation is not liable for the repayment portion only out of the amount of the obligation to be paid to him by the "director" and the "director who is a joint and several surety".

In addition, according to the records, the defendant's establishment of "director who is the main shareholder of the guaranteed company" as a joint and several surety is to secure the right to indemnity when the defendant performs the guaranteed obligation. However, since the defendant has a close interest with the company and has a direct and indirect influence on the corporate management, it can be known that the purpose of inducing the sound management of the guaranteed company and promoting the soundness of the guarantee is also to promote the guarantee, the validity of the above exemption agreement should not be determined solely on whether the defendant's right to indemnity is secured.

Nevertheless, the court below's rejection of the defendant's request for exemption under the agreement with the plaintiff on the ground that the plaintiff did not put any disadvantage to the defendant even though the plaintiff was not a joint and several surety, there is an error of law by misunderstanding the joint and several surety under the credit guarantee agreement, the scope of the liability of the statutory person in charge under Article 45 of the Act, and the purport of the above exemption agreement, and it is obvious that such an error has influenced the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)