[1] A person who is recognized as a merchant in a case where the name of authorization or permission to an administrative agency or the name of business registration and the actual business owner are different (=the actual business owner)

[2] In a case where a person who actually runs a real estate brokerage business guarantees the buyer's remainder of obligation by preparing a letter of guarantee with a responsibility for such brokerage, whether such guarantee constitutes a commercial activity (affirmative)

[3] The standard point of time to determine whether a statutory subrogation can be granted and the scope of discharge where a security has been lost or decreased due to an obligee’s intentional act or negligence (=the time of loss or decrease

[4] In a case where the right to collateral security was cancelled by the creditor's negligence and accordingly the guarantor asserted the exemption from liability pursuant to Article 485 of the Civil Code, the case reversing the court below's rejection of the guarantor's assertion of exemption from liability on the ground that the court below did not determine whether the guarantor's exemption from liability was cancelled at the time of cancellation of the right to collateral security, and it was not possible for the guarantor to receive distribution on behalf of the creditor, even if the real auction was sold at a low price

[1] A merchant refers to a person who engages in a commercial activity under his/her own name. Here, the term "real name" means the subject to whom the rights and obligations arising out of a commercial activity accrue, and thus, should be determined in substance. Thus, if the name of authorization or permission to an administrative agency or the name of business registration reported to the National Tax Service and the actual business owner are different, the merchant becomes the latter.

[2] A real estate brokerage business is a "act concerning brokerage" as provided by Article 46 subparagraph 11 of the Commercial Act, which constitutes a basic commercial activity, and a merchant's act for business is presumed to be a commercial activity, and a merchant's act is presumed to be an act for business. If a merchant actually engages in a real estate brokerage business and offers a letter of guarantee with a responsibility for such brokerage and guarantees the buyer's balance of obligations, such guarantee shall be presumed to be an act for business, and it shall be deemed a commercial activity unless there is any evidence to reverse such presumption.

[3] In the event a security is lost or decreased by an obligee’s intentional act or negligence, whether a statutory subrogation is exempted from liability pursuant to Article 485 of the Civil Code, and the scope of exemption should be determined at the standard point of time when the security is lost or decreased.

[4] In a case where the right to collateral security was cancelled by the creditor's negligence and accordingly the guarantor asserted the exemption from liability pursuant to Article 485 of the Civil Code, the case reversing the court below's rejection of the guarantor's assertion of the exemption from liability on the ground that the court below did not determine whether the guarantor's exemption from liability was cancelled at the time of cancellation of the right to collateral security and, even if the real auction was sold at low price and the right to collateral security was not cancelled due to the result of the real auction

[1] Article 4 of the Commercial Act / [2] Articles 4, 46 subparag. 11, and 47 of the Commercial Act / [3] Article 485 of the Civil Act / [4] Article 485 of the Civil Act

[3] Supreme Court Decision 2001Da36283 decided Oct. 9, 2001 (Gong2001Ha, 2433) Supreme Court Decision 2001Da42677 decided Dec. 24, 2001 (Gong2002Sang, 344)

Plaintiff

Defendant (Attorney Lee Yong-hoon et al., Counsel for the defendant-appellant)

Supreme Court Decision 2006Da76897 Decided February 9, 2007

Busan High Court Decision 2007Na5427 decided September 11, 2007

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. On the first ground for appeal

In full view of the evidence in the judgment below, the court below held that the letter of guarantee in this case was prepared on the basis of the defendant's intent. In light of the records, the judgment of the court below is just, and there is no violation of the rules of evidence,

2. On the second ground for appeal

A merchant refers to a person who engages in commercial activities under his/her own name. Here, the term "self-title" means a person who is the subject to the rights and obligations arising out of commercial activities. As such, the real estate brokerage business is a merchant in the name of the administrative agency or the name of the business registration reported to the National Tax Service and the actual business entity. On the other hand, the real estate brokerage business constitutes a "act concerning brokerage" as provided by Article 46 subparagraph 11 of the Commercial Act, and the act of the merchant is an act for business, and the act of the merchant is presumed to be an act for business, and the act of the merchant is presumed to be an act for business, and the act of the merchant is presumed to be an act for business. According to the facts stated in the judgment, since the defendant, who is the merchant, actually engaged in the real estate brokerage business, actually prepared a letter of guarantee and guaranteed the buyer's balance of the buyer's obligations, such act is presumed to be an act for business, and there is no evidence to reverse such presumption. Therefore, the judgment of the court below is justifiable in light of the legal principles or records.

3. On the third ground for appeal

A. The court below rejected the defendant's assertion that "the plaintiff was granted the second priority right of maximum debt amount of 120 million won in the name of the non-party 2, who is the plaintiff, as security of the purchase-price claim of this case, with respect to the land of this case, and the land of this case had an equivalent security value, but around April 22, 2003, the above mortgage establishment registration was cancelled on the wind that the non-party 1 had consented to the termination of the above mortgage establishment registration without being informed of the secured debt of this case. The loss of the right to collateral above was caused by the plaintiff's negligence and thus, the defendant who is the guarantor is exempted from the obligation to the extent that it cannot be repaid." The court below rejected the defendant's assertion that "the plaintiff cannot be reimbursed the debt of this case due to the loss of the right to collateral security, due to the plaintiff's loss of the right to collateral security, the plaintiff cannot be reimbursed the debt of this case to the non-party 1, who is the head of Changwon District Court.

B. Since the Defendant guaranteed the obligation for the remainder of the sale in this case, he is a person who has a legitimate interest in repaying the obligation for the remainder of the sale in this case, and as a matter of course, he subrogates the Plaintiff as the obligee (Article 481 of the Civil Act). In such a case, when the security is lost or decreased by the Plaintiff’s intentional or negligent act as the obligee, the Defendant is exempted from liability to the extent that it cannot be repaid due to the loss or decrease of the security (Article 485 of the Civil Act). Meanwhile, in a case where the security is lost or decreased by the obligee’s intentional or negligent act, whether the statutory subrogation is exempted from liability and the scope of exemption should be determined at the time of the loss or decrease of the security (see, e.g., Supreme Court Decisions 201Da36283, Oct. 9, 201; 201Da42677, Dec. 24, 2001).

Examining the record in light of the above legal principles, the Plaintiff was granted the second priority right of KRW 120 million with respect to the land of this case from Nonparty 1, who is the debtor, as the collateral of the purchase-price claim. around April 22, 2003, the Plaintiff could not be seen as having cancelled the registration of creation of the above collateral right with the wind of the non-party 1's deception as the collateral of the right to collateral purchase-price claim. Since the market price of the land of this case at the time of April 22, 2003, was 57,856,00 (the amount appraised as of February 13, 2003 in the voluntary auction procedure of the land of this case, the maximum debt amount of the first priority right was 350,000,000 won, and it cannot be seen as having been cancelled by the Defendant's negligence after the sale of the land of this case. Meanwhile, it cannot be seen as having lost the market price of this case.

Nevertheless, the lower court rejected the Defendant’s claim for exemption under Article 485 of the Civil Act. In so doing, the lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on Article 485 of the Civil Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)