Whether the guarantor who has performed the guaranteed obligation may claim for reimbursement against the principal obligor after the expiration of the extinctive prescription of the principal obligation and the guaranteed obligation, where the extinctive prescription differs (affirmative)

Where a guarantor performs the guaranteed obligation, for which the period of prescription has expired, and requests for reimbursement from the principal obligor, unless the period of extinctive prescription has expired because the guaranteed obligation and the principal obligation have different periods of prescription, the principal obligor may not refuse a claim of the surety for reimbursement of the extinguished obligation.

Articles 441, 425(2) of the Civil Act, and Article 48 of the Specialized Construction Mutual Aid Association Act

Specialized Construction Financial Cooperative (Attorney Jin-ho, Counsel for the defendant-appellant)

Taewon Co., Ltd. (Attorney Kim Gi-soo, Counsel for the defendant-appellant)

1. The defendant shall pay to the plaintiff 56,80,000 won with an interest of twenty-five percent per annum from September 28, 1994 to the day of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties:

A. The Plaintiff Union is a special law that is established pursuant to the Specialized Construction Mutual Aid Association Act for the purpose of providing necessary guarantee and financing to specialized constructors.

B. On January 16, 191, the Defendant Company, a member of the Plaintiff Company, was awarded a subcontract performance guarantee amounting to KRW 560,80,000 for the total construction cost, and from February 1, 1991 to August 31 of the same year during the construction period, among the local extension and packing of the monan and dong Rape that the said Company contracted by the said company from Jeonnam-do, for the extension and packing of the local highway, the Defendant Company, a member of the Plaintiff Company, was awarded a subcontract for the construction period of KRW 560,80,000 for the performance of the said subcontracted project by the Defendant Company, and the Plaintiff Company issued a subcontract performance guarantee amounting to KRW 56,800,00 for the performance of the said subcontracted project by the Defendant Company, and the guarantee period is the same as the construction period (the extension of guarantee period by the time of the completion

2. The parties' assertion

The plaintiff union asserts that the defendant company could not perform the subcontracted project of this case due to the reasons attributable to it, and that the non-party financial company, the creditor of this case, paid KRW 56,80,000 to the non-party financial company, according to the above performance guarantee, it is claiming that the above money and damages for delay should be claimed against the defendant company

In this regard, the defendant company first asserted that since the subcontract of this case was delayed due to the reasons attributable to the non-party mining company, there was no damage claim equivalent to the execution profit arising from the subcontract of this case against the defendant company of the non-party mining company. Second, the plaintiff union cannot exercise its right to indemnity against the defendant company since the right to claim the payment of the deposit against the non-party mining company was extinguished after the expiration of the prescription period.

3. The occurrence of liability for indemnity;

(a) recognised facts;

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence 1-2, 3, 6, 12, 13, 14, 16, 20 through 31, 34, 35, Gap evidence 2-1, 2 (the same as evidence Nos. 1 and 2), Gap evidence 3, 4, Eul evidence 10-1, 2, 3, 13-2, 13-2, 19, and Eul evidence 13-2, 19, and testimony of the witness evidence No. 13-10, 17, and 18, and testimony of the witness population is not believed:

(1) According to Article 26 of the subcontract agreement entered into between the defendant company and the non-party mining enterprise, when it becomes clear that the non-party mining enterprise is unable to complete the construction work within the construction period due to the cause attributable to the defendant company, which is the subcontractor, the non-party mining enterprise may rescind the contract. In this case, the contract deposit (this refers to the amount of KRW 56,800,000 guaranteed by the plaintiff association)

(2) Around March 191, 191, the Defendant Company started the subcontracted project of this case. According to the specifications of the subcontracted project of this case, the said steel monitation works must be resisted to reach 75 meters of the water surface to the 21.53 meters of the 21.5 meters of the water surface, and the inside is excavated. Since the Defendant Company failed to meet the capacity and performance of its input equipment, the Defendant Company did not resist only up to 16.4 meters of the water surface average of 16.4 meters from the water surface until the end of May 1991. The Defendant Company excavated only 33 out of the above 42 steel monits and excavated only up to 12.24 meters of the average, and it was extremely unlikely to complete the construction in the air agreed upon.

(3) According to the schedule of scheduled construction works submitted by the defendant company to the non-party financial company until May 191, 191, 75% of its major portion should be achieved. From the end of May 1991, the defendant company requested the defendant company to take measures to ensure completion within the construction period on May 29, 1991, since it is impossible for the non-party financial company to complete construction within the construction period, and the non-party financial company demanded the defendant company to take measures to ensure completion within the air, but the defendant company did not respond to any response and thus it is difficult to complete construction within the air on June 5 of the same year.

(4) Accordingly, the Defendant Company suspended the work on the 6th of the same month and on the 8th of the same month, and on the 9th of the same month, claimed that the extension of the construction period and the increase in the construction amount were inevitable by changing the contents of the construction without changing the construction contents or the construction method. On the 18th of the same month, the Defendant Company requested the Defendant Company to prepare measures by asserting that the extension of the construction period and the increase in the construction amount were inevitable. On the 22th of the same month, the Defendant Company finally notified the Defendant Company of the cancellation of the subcontract in accordance with the terms of the rescission of the subcontract contract.

(5) On August 4, 1994, after the rescission of the subcontract contract of this case, the Plaintiff Mutual Aid Association paid KRW 56,800,000 according to the contract for performance guarantee of the subcontracted project of this case to the non-party Li-party mineral company.

(b) Markets:

According to the above facts, the defendant company was unable to complete the subcontracted project in the air due to the cause attributable to the execution of the subcontracted project in this case. Therefore, the non-party subcontractor is liable for damages equivalent to the contract deposit due to the non-party subcontractor's default. On the other hand, the plaintiff union is the guarantor who guaranteed the non-party subcontractor's obligation to pay the above contract deposit to the non-party subcontractor, and the defendant company is liable for compensation against the non-party subcontractor.

C. Extinctive prescription defense of the defendant company

(1) According to Article 48(3) of the Specialized Construction Mutual Aid Association Act, the extinctive prescription of the claim for the payment of the performance bond against the non-party company against the non-party company is two years, and it is apparent that the non-party mining enterprise paid the performance bond after the lapse of two years after the cancellation of the subcontract of this case. Meanwhile, the damage claim for the non-party mining enterprise due to the non-party mining enterprise’s non-party mining enterprise’s non-performance of obligation to the defendant company is a claim with the ten-year extinctive prescription period, and it is apparent that the period of the extinctive prescription has not yet expired (the defendant company asserted that the extinctive prescription of the damage claim against the non-party mining enterprise constitutes the short-term extinctive prescription period of three years under Article 163(3) of the Civil Act, but it is apparent that the damage claim of the contractor is a claim against the contractor of the non-party company, and it does not constitute the period of

2. If so, even if the withdrawal for the performance of the surety obligation of the surety was made after the expiration of the extinctive prescription of the surety obligation, the completion of the extinctive prescription does not constitute a ground for defense against the obligee by the principal obligor, and as long as the Defendant Company, the principal obligor, still bears the principal obligation against the non-party gold Savings Companies, it cannot be said that there is negligence causing damage to the principal obligor due to the discharge of the surety obligation of the surety. Therefore, the Plaintiff Company, the guarantor, can claim against the Defendant Company to the extent that it is exempted from the principal obligor due to the withdrawal, and therefore,

4. Conclusion

Therefore, the defendant company is obligated to pay damages for delay at the rate of 25% per annum from September 28, 1994 to the day of full payment, as requested by the plaintiff, the original copy of the payment order corresponding to the complaint of this case was served on the defendant company after the date of exemption from 56,800,000 won to the plaintiff union. Thus, the plaintiff company's claim of this case of this case shall be accepted for the reasons.

Judges Lee Jae-in (Presiding Judge)