The case holding that, in case where the actual borrower has purchased a truck in the name of a company taking part in an installment, and entered into a guarantee insurance contract with the insurance company for the guarantee of the payment of the installment, and the person who became a joint guarantor under the guarantee insurance contract for the actual borrower has subrogatedly paid the installment amount, he cannot claim for the insurance company taking part in the liability for indemnity under the guarantee insurance contract, in case

In a case where Gap, the actual borrower, entered into a so-called branch contract with the automobile company, and entered into a guarantee insurance contract with the insurance company for the guarantee of payment of the installment, and Eul, the principal owner of Eul, made a joint and several guarantee obligation to the insurance company for the guarantee of payment of the installment, and the subrogated payment of the installment to Eul, the former owner, bears the obligation to pay the installment to the automobile company as the purchaser or owner of the truck in the external relationship, but the latter is ultimately liable for the payment of the installment between the former and the latter. If Eul becomes the joint and several surety under the guarantee insurance contract upon Eul's request, the latter becomes the joint and several surety under the guarantee insurance contract for the payment of the installment borne by Gap. Thus, in the form of a guarantee insurance contract, even if the former is the principal obligor's obligation to the insurance company and the latter is the joint and several surety, the latter cannot be said to be a joint and several surety for the insurance company as the joint and several surety for the latter.

Article 441 of the Civil Act

Plaintiff

Unlimited Partnership Li-based Transport Agents

Suwon District Court Decision 93Na8792 delivered on November 26, 1993

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that the above non-party 1 purchased 1 ton of truck with the above non-party 1's own funds, and the defendant received a certain amount of fees from the above non-party 1 and registered the above cargo vehicle in his name, and the defendant entered into a so-called entry contract which manages the above vehicle, such as the payment of installments and taxes and public charges, under the name of the non-party 1's name on February 28, 1990. The non-party 2 purchased 1's automobile from the non-party 2's non-party 3's non-party 9 insurance company's non-party 1's non-party 4 insurance company's non-party 1's non-party 1's joint and several liability insurance company's non-party 9's first guaranteed obligation to pay the above guaranteed amount to the non-party 1's non-party 2's non-party 1's non-party 3 company's non-party 1's indemnity insurance company's compensation obligation.

2. However, according to the records of this case, in the external relationship between the defendant and the above non-party 1, the defendant bears the obligation to pay the installments to the above automobile company as the purchaser or owner of the above truck, but even if the plaintiff is a joint guarantor under the above branch entry contract, the above non-party 1 is ultimately liable to pay the installments. If the plaintiff becomes a joint guarantor under the above guaranteed insurance contract, the plaintiff also becomes a joint guarantor under the above insurance contract for the above non-party 1's obligation to pay the installments in relation to the above non-party 1. Thus, if the above non-party 1 still remains a joint guarantor under the above guaranteed insurance contract in the internal relationship between the defendant and the above non-party 1, the above non-party 1 still has the obligation to pay the installments after the transfer or takeover of the above truck, it is reasonable to deem that the defendant is the principal debtor of the above insurance company under the above guaranteed insurance contract and the plaintiff is a joint guarantor, even if the plaintiff has subrogated the above insurance company's obligation to the above insurer as a joint guarantor.

Therefore, the court below should have reviewed whether the defendant exempted the above non-party 1 from the obligation to pay the above non-party 1 under the above sub-transfer contract, and made the above non-party 1 to bear the obligation to pay the above non-party 3 as the actual borrower, or whether the above non-party 1 still bears the obligation to pay the payment based on the above sub-transfer contract, or whether the defendant company recognized the above transfer and the above non-party 3 and concluded a new sub-transfer contract with the above non-party 3, and then, if the defendant decided not to exempt the above non-party 1 from the obligation to pay the installments after the above transfer and takeover, the plaintiff can claim the payment by subrogation against the defendant. However, if the above non-party 1 still bears the obligation to pay the payment after the transfer and takeover, the plaintiff cannot claim the payment by subrogation against the defendant. Thus, the court below erred in the misapprehension of legal principles as to the contract and joint and several surety, which affected the conclusion of the judgment.

3. Accordingly, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)