[1] Whether a contract of guarantee can be terminated on the ground of change in circumstances where a director has resigned after guaranteeing the obligation of confirmation of the company during his term of office (negative)

[2] The validity of an external transaction that requires a resolution of the board of directors where the representative director without a legitimate resolution of the board of directors (negative with qualification)

[3] In a case where the Credit Guarantee Fund has failed to deliver to the principal debtor a notice of arrival of the guarantee date 30 days prior to the expiration of the guarantee term due to the violation of the internal provisions on the change of the method for processing the extension of the credit guarantee term, whether the agreement on the change of the credit guarantee terms

[4] Whether an obligee is obligated under the good faith principle to notify the guarantor of the credit status of the principal obligor when concluding a guarantee agreement (negative)

[1] Where a director of a company has entered into a guarantee agreement for a company's obligation of which the amount of debt and the due date are specified, the director may not unilaterally terminate the guarantee agreement for reasons of change in the position of director resignation, unlike continuous guarantee or comprehensive guarantee.

[2] In a case where the representative director of a corporation did not actually undergo a resolution of the board of directors while conducting external transactions requiring a resolution of the board of directors, or where a resolution of the board of directors was null and void, if the other party to the transactions knew or could have known the absence of a resolution of the board of directors or

[3] Even if the Credit Guarantee Fund has not delivered a notice of arrival of the credit guarantee date to the principal debtor 30 days prior to the expiration date due to the violation of the provisions on the change of the credit guarantee term extension processing method, such provision is merely an internal business guidelines of the Credit Guarantee Fund, and it does not become null and void in the agreement to change the credit guarantee terms

[4] The guarantee system is essentially taking over the risks of creditors due to the insolvency of the principal debtor, so it is necessary to determine whether to enter into a guarantee contract after investigating the financial resources of the principal debtor, and there is no obligation of the creditor under the good faith principle to notify the guarantor of the financial conditions of the debtor.

[1] Articles 2, 428(1), and 543 of the Civil Act / [2] Articles 209 and 389(3) of the Commercial Act / [3] Article 428 of the Civil Act / [4] Articles 2 and 428 of the Civil Act

[1] Supreme Court Decision 90Da1501 delivered on July 9, 1991 (Gong1991, 2114), Supreme Court Decision 94Da4608 delivered on December 27, 1994 (Gong1995Sang, 671), Supreme Court Decision 95Da27431 delivered on February 9, 1996 (Gong196Sang, 95Da31645 delivered on February 14, 1997 (Gong197Sang, 740) / [2] Supreme Court Decision 94Da39253 delivered on October 28, 1994 (Gong194, 3124), Supreme Court Decision 95Da27939 delivered on April 13, 1995 (Gong294, 197Sang, 194, 197Da196395 delivered on April 13, 1995)

(Attorney Cho Young-il, Counsel for the defendant-appellant)

Defendant (Attorney Ook-hoon et al., Counsel for defendant-appellant)

Seoul District Court Decision 96Na41020 delivered on July 10, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below's finding that the plaintiff extended the credit guarantee period to 80,000,000 won out of the above loans of the non-party company on February 23, 1994 and the non-party 2 was additionally a joint guarantor of the non-party company on February 23, 1994, and concluded a credit guarantee contract between the plaintiff and the non-party 1,00,000 won and the guarantee period on August 23, 1994, the non-party 1 and the non-party 2 guaranteed the non-party company's indemnity obligation against the non-party company on August 23, 1994, and the non-party 1 and the non-party 2 were additionally a joint guarantor of the non-party company on the non-party 2 instead of the previous joint guarantor, as alleged in the grounds for appeal. It did not err in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles on joint and several sureties.

In addition, where a director of a company has entered into a guarantee agreement for the company's obligation of which the amount of debt and the due date are specified, the director cannot unilaterally terminate the guarantee agreement on the grounds of change in the position of director, unlike continuous guarantee or comprehensive collateral guarantee (see Supreme Court Decision 90Da15501, Jul. 9, 191). The decision of the court below to the same purport is justifiable, and there is no error in the misapprehension of legal principles as to the termination of guarantee agreement as otherwise alleged in the ground of appeal. The Supreme Court decision to the grounds of appeal is the guarantee for a continuous transaction between the company and the bank, and it is not appropriate to be invoked in

2. On the second ground for appeal

Where the representative director of a corporation does not actually undergo a resolution of the board of directors while conducting external transactions requiring a resolution of the board of directors, or even if the resolution of the board of directors was made, if the other party to the transactions knew or could have known the absence or invalidation of the resolution of the board of directors, such transactions shall be deemed null and void.

However, in light of the records, the judgment of the court below which rejected the defendant's assertion that the non-party company forged the written resolution of the board of directors without the resolution of the board of directors and concluded a credit guarantee contract with the plaintiff, and that the plaintiff knew or could have known it, is just, and there is no violation of the rules of evidence

3. On the third ground for appeal

According to the records, the court below's finding that the plaintiff's extension of the guarantee period to February 23, 1995 by reducing the guarantee amount of KRW 100,00,000,00 for the credit guarantee conditions for the non-party company as of September 23, 1994 to KRW 20,000,000 for the first time, and the extension of the guarantee period to February 23, 1995 is a pre-determination of the plaintiff Sung-nam branch, which is a dealing business store, and even if the plaintiff did not deliver the notice of the guarantee date notice to the non-party company, which is the principal debtor, 30 days prior to the guarantee period due to the violation of the provisions on the change of the credit guarantee period extension method, such provision is merely a mere internal business guidelines of the plaintiff, and thus, it does not become null and void, and there is no error in the misapprehension of legal principles as to the change of the credit guarantee conditions or the

4. On the fourth and fifth grounds for appeal

Since the guarantee system is essentially taking over the risk of creditors due to the insolvency of the principal obligor, it is reasonable to determine whether to enter into a guarantee contract after investigating the financial resources of the principal obligor, and there is no obligation under the good faith principle to notify the guarantor of the debtor's credit condition. In light of the records, the court below rejected the Defendant's assertion to the same purport that the Plaintiff's claim of this case violates the good faith principle, the Plaintiff's joint and several guarantee agreement of this case between the principal obligor and the Defendant constitutes a juristic act or unfair juristic act in anti-social order, or the Defendant's mistake, or there was a negligence on the part of the Plaintiff, which caused the negligence in the process of offsetting the terms and conditions of the credit guarantee agreement between the Plaintiff and the non-party company at the time of the joint and several guarantee agreement, and there is no violation of the rules of evidence, incomplete deliberation, lack of reasoning, or misapprehension of legal principles

The Supreme Court precedents that are superior to the grounds of appeal are inappropriate to be invoked in the instant case.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)