[1] In a case where the intent of the party indicated in the assumption of the obligation is not clear, whether it should be deemed as an overlapping assumption of the obligation (affirmative)

[2] In a case where Gap prepared a letter of confirmation of the repayment that Eul would pay Eul the full amount of Eul's loan to Eul, the case holding that the court below erred in the misapprehension of legal principles where Gap's assumption of debt is not clear as to whether Eul's assumption of debt is exempted from liability or it is an overlapping acceptance, and the judgment below which concluded Eul's acceptance of the obligation with the obligation to assume the obligation with the obligation to assume the obligation with the obligation to assume the obligation with the obligation

[1] Articles 105, 453, and 454 of the Civil Act / [2] Articles 105, 453, and 454 of the Civil Act

[1] Supreme Court Decision 2002Da36228 delivered on September 24, 2002 (Gong2002Ha, 2538)

Plaintiff

Defendant

Gwangju District Court Decision 2010Na14182 Decided August 12, 2011

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

If the assumption of an obligation is overlapped, it is a matter of interpretation of the intention of the parties indicated in the assumption of obligation, and it is deemed that the acceptance of obligation is made in the assumption of obligation, or if it is not clear whether it is an overlapping underwriter or not, it is deemed that it has been taken over repeatedly (see Supreme Court Decision 2002Da36228, Sept. 24, 2002).

In full view of the circumstances in its holding, the lower court determined that it was reasonable to view that the Nonparty, on October 8, 2008, was liable for the same debt with respect to the Plaintiff by entering a new debt relationship on behalf of the former debtor on behalf of the Defendant, who was the former debtor, with the Plaintiff’s implied consent, and that the former debtor, the Defendant, who was the former debtor, was discharged from the debt relationship.

However, the above judgment of the court below is hard to accept for the following reasons.

According to the reasoning of the judgment below and the records of this case, the defendant is unable to fully repay the loan amount of this case to the plaintiff on July 7, 2008, 200 million won on the 11st of the same month, and the plaintiff paid 500,000 won on the 11st of the same month, and upon the defendant's oral statement that the defendant had a loan claim against the Korea Space Infrastructure Technology Corporation, the debtor is the defendant on September 16, 2008 and the third debtor is the above company, and the provisional seizure of the claim amount of 50,000 won was ordered to provisional seizure of the above company's loan amount of 0,000 won, which was stated as the vice president even if the above company is not a regular employee of the above company, and the non-party is 100,000 won upon the request of the plaintiff on October 8, 2008. The plaintiff's request for provisional seizure of 200,000 won without the plaintiff's signature of the above 208.

First, it is examined whether the Plaintiff consented to the assumption of the obligation between the Defendant and the Nonparty. In light of the fact that there is no Plaintiff’s signature in a statement of confirmation of repayment, the Plaintiff appears to have been unaware of the actual existence of claims seized at the time, whether the Nonparty was capable of repayment, and if the Defendant entered into a contract with the duty of debt assumption, the Defendant would have obtained prior consent of the Plaintiff, which is the obligee, but such circumstance was not found in the record, and the Defendant was not in the form where the Nonparty prepares a written confirmation of repayment. In addition, even if the Plaintiff received a written confirmation of repayment prepared and delivered by the Nonparty, it is stated in the statement of confirmation of repayment, stating that “The Plaintiff did not demand against the Defendant after the date of preparation of the written statement of confirmation of repayment, and even if it was received by the Nonparty, it cannot be concluded that the Plaintiff’s intent at the time of receipt of a written confirmation of repayment was merely the Defendant’s exemption from the Defendant and the Nonparty’s acceptance of the obligation only to the Nonparty.

Next, even based on the facts acknowledged by the court below, it is difficult to view that the obligation to assume the discharge has been performed under a contract between the plaintiff and the non-party.

Ultimately, solely on the circumstances acknowledged by the lower court, it cannot be readily concluded that the assumption of an obligation was effective, and thus, it is not clear whether the assumption of obligation in the instant case is a discharge acceptance or a overlapping acceptance. In such a case, according to the legal doctrine as seen earlier, even if the Defendant and the Nonparty concluded the assumption of obligation with the content that the Nonparty would have to pay the loan in the instant case, it cannot be said that the assumption of obligation was made in relation to the Plaintiff, but it can only be deemed as a overlapping assumption of obligation.

Nevertheless, the court below concluded that the plaintiff impliedly consented to the assumption of the obligation with the discharge on the basis of the circumstances stated in its holding. The court below erred by misapprehending the legal principles on the acceptance of the assumption of obligation with the discharge and exceeding the limit of the principle of free evaluation of evidence, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)