[1] Where the contents of reorganization claim are modified by the company reorganization plan, whether it affects the scope of the guarantor's liability (negative)

[2] Whether the interruption of prescription due to the participation in the company reorganization procedure by the creditor also affects the guaranteed obligation (affirmative), and the period of interruption of prescription

[3] The legal nature of damages for delay caused by delay of monetary obligation (=compensation) and the extinctive prescription period

[4] Whether an appeal on the merits is allowed, even if the appeal on the merits is without merit (negative)

[5] In a case where a sentence of provisional execution is attached to the judgment of the court of first instance against which a sentence of provisional execution is not attached, the appellate court that appealed only by the defendant and dismissed an appeal, whether it violates the principle of prohibition of disadvantageous alteration (negative

[1] According to Article 240 (2) of the Company Reorganization Act, a reorganization creditor may at any time claim against a guarantor regardless of the reorganization plan, for his/her original claim, and even if the amount or maturity of the reorganization claim is changed according to the reorganization plan, the scope of the guarantor's liability does not affect.

[2] Article 440 of the Civil Code, which provides for the effect of interruption of prescription against a guarantor of a company, is not a natural provision derived from the nature of the guaranteed obligation, but a policy provision to prevent the extinction of prescription separately for the protection of creditors. Thus, even though Article 240(2) of the Company Reorganization Act excludes the existence of the guaranteed obligation as to the scope of validity of the company reorganization plan, the application of Article 440 of the Civil Code to the effect of interruption of prescription due to the intervention in reorganization proceedings under Article 5 of the same Act is not excluded. Therefore, the effect of interruption of prescription due to the intervention in reorganization proceedings is maintained as long as the exercise of the right to participate in reorganization proceedings continues.

[3] The damages for delay caused by the delay of a pecuniary obligation is not an interest on the damages, and the nature of the damages is not an interest on the damages, and it is not an "claim with a period of less than one year" as stipulated in Article 163 subparagraph 1 of the Civil Code, so it shall not be an object

[4] Any objection against a judgment on the costs of lawsuit shall be permitted only when the whole or part of the appeal against the merits is well-grounded, and it shall not be permitted unless the appeal against the merits is justified.

[5] The declaration of provisional execution is not subject to Article 385 of the Civil Procedure Act, which is based on the principle of disposition authority, regardless of whether there exists a party’s request, and therefore, it does not violate the principle of prohibition of disadvantageous alteration even if the defendant dismissed an appeal at the appellate court that appealed only by the defendant and attached a declaration of provisional execution.

[1] Article 240 (2) of the Company Reorganization Act, Article 430 of the Civil Act / [2] Articles 5 and 240 (2) of the Company Reorganization Act, Article 440 of the Civil Act / [3] Articles 163 subparagraph 1, 390, and 397 of the Civil Act / [4] Articles 361 and 395 of the Civil Procedure Act / [5] Articles 199 and 385 of the Civil Procedure Act

[1] Supreme Court Decision 87Da2055 Decided February 23, 198 (Gong198,58) / [1] Supreme Court Decision 88Da4499 decided June 26, 1990 (Gong1990, 150) 93Da25363 decided August 24, 1993 (Gong1993Ha, 2612), Supreme Court Decision 96Da693 decided April 8, 1997 (Gong1997Sang, 194, 1375) / [2] Supreme Court Decision 93Da47431 decided January 14, 1994 (Gong1994, 1999) 9Da397949 decided March 196, 194

Korea Credit Guarantee Fund (Law Firm Busan, Attorneys Jin-ho et al., Counsel for the defendant-appellant)

Defendant (Attorney Ha Young-young, Counsel for defendant-appellant)

Busan District Court Decision 97Na12294 delivered on July 10, 1998

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

1. According to Article 240 (2) of the Company Reorganization Act, a reorganization creditor may at any time claim against a guarantor, regardless of the reorganization plan, for the original claim, and even if the amount or time for payment of the reorganization claim is changed by the reorganization plan, the scope of liability of the guarantor does not affect (see this Court Decision 88Meu499, Jun. 26, 1990).

In the same purport, the court below is just in rejecting the defendant's assertion that the defendant, a joint guarantor, participated in the reorganization proceedings against the International valve Co., Ltd., which is the principal debtor, and received the claim for reimbursement of this case, and thus, the scope of liability should be limited to the remainder except the part approved by the reorganization program, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal. Therefore, the grounds for appeal on this point

2. Article 440 of the Civil Act, which provides for the effect of interrupting prescription as to a guarantor of a company’s obligation, is not a natural provision derived from the nature of the guaranteed obligation, but a policy provision to prevent the extinction of prescription for the protection of creditors. Thus, even though Article 240(2) of the Company Reorganization Act excludes the subsidiary nature of the guaranteed obligation as to the scope of validity of the company’s reorganization plan, the application of Article 440 of the Civil Act as to the effect of interrupting prescription due to the participation in reorganization proceedings as provided by Article 5 of the same Act is not excluded. Therefore, the effect of interrupting prescription due to the participation in reorganization proceedings is maintained as long as the exercise of the right to participate in reorganization proceedings continues (see this Court Decision 93Da47431 delivered on January 14, 1994).

In the same purport, the court below is just in holding that the period of extinctive prescription of the guaranteed claim against the plaintiff against the defendant was suspended from participating in the reorganization proceedings against an international valve corporation, the principal debtor, around March 1984, and that the reorganization proceedings were concluded on March 10, 1990, and there is no error of law by misunderstanding the legal principles and inconsistent reasoning, as otherwise alleged in the grounds of appeal. Accordingly, the grounds of appeal on this point are not accepted

3. The damages for delay caused by the delay of a pecuniary obligation is not an interest for damages, and it is not an interest for a period not exceeding one year as stipulated in Article 163 subparagraph 1 of the Civil Code. Thus, it is not an object of short-term extinctive prescription for three years (see this Court Decision 94Da57800 delivered on October 13, 1995).

In the same purport, the court below is just in rejecting the defendant's assertion that damages for delay caused by delay in the claim for indemnity of this case are subject to the short-term extinctive prescription for three years, and there is no error of law by misunderstanding legal principles as alleged in the grounds of appeal. Therefore, the grounds

4. The court below is just in rejecting the defendant's assertion that the defendant's conclusion of the guarantee contract of this case constitutes an expression of intent by coercion and that the plaintiff's claim of this case constitutes an abuse of rights, and the defendant's assertion that the plaintiff agreed to modify the claim of this case with the international valve corporation on September 10, 1993 after the completion of reorganization proceedings, or exempted the defendant from the defendant's guarantee obligation, on the grounds as stated in its reasoning. In so doing, the court below did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles as alleged in the grounds of appeal

5. Objection against a judgment on the costs of lawsuit shall be permitted only when all or part of the appeal on the merits is justified, and it shall not be permitted if the appeal on the merits is groundless (see Supreme Court Decision 98Da22048 delivered on September 8, 1998). Thus, unless the appeal on the merits of this case is justified, the argument that the judgment by the court below was unlawful, cannot be accepted, and a provisional execution declaration is not subject to Article 385 of the Civil Procedure Act, which is based on the principle of disposition right, based on matters to be decided ex officio by the court, regardless of the existence of the party's request, and therefore, it does not violate the principle of prohibition of disadvantageous alteration even if the defendant dismissed the appeal at the appellate court which appealed only the judgment of the first instance where the provisional execution had not been declared, while attaching a provisional execution (see Supreme Court Decision 90Da17804 delivered on November 8, 191). Therefore, the grounds for appeal on this point shall not

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)