[1] The validity of a loan agreement made by lending a third party in the form under the mutual savings and finance company's understanding in order to avoid the lending limit to the same person under the former Mutual Savings and Finance Act (negative)

[2] The legal nature of the substitution and the existence of a guarantee liability for the existing obligation in the case of a substitution (affirmative)

[3] The case holding that a contract which establishes a new obligation with the aim of extending the repayment period of the existing obligation of the loan constitutes a novation with no identity between the two obligations, and is a contract which finally terminates the existing obligation and establishes a new obligation

[4] Legislative intent of Article 505 of the Civil Code and whether in the case of a novation agreement, agreement between the parties on the transfer of the former obligation to a new obligation as a security for the former obligation may be implicitly agreed (affirmative)

[5] The case holding that the parties to an agreement on the transfer of existing loans to a new loan obligation under the right to collateral security regarding the existing loan obligation is acknowledged implicitly by viewing the existing loan as a new loan

[1] In order to avoid the application of Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of Jan. 5, 1995) which limits the amount of loans to a same person, where a real principal debtor pays a third party to the amount of loans that he/she intends to actually borrow as a principal debtor, and where a third party is prepared in the name of the following third party with the intent not to be liable as a debtor for the third party with the understanding of the mutual savings and finance companies, the third party is merely a person who lends only the name in the form and the actual party to the loan contract is the mutual savings and finance company and the actual party to the loan contract is the principal debtor. Thus, the loan agreement in the name of the third party is merely a legal act that becomes invalid as a false conspiracy without the intention to bear the liability pursuant to the mutual savings and finance companies' understanding

[2] Although the so-called substitution, which provides new loans only formally without actually receiving funds, constitutes a separate loan, barring any special circumstance, the legal nature of the so-called substitution, which actually extends the maturity of the existing debt, shall be deemed as a quasi-loan continuing to exist while maintaining its identity. In such a case, the guarantee liability for the existing debt shall continue to exist unless there are special circumstances, such as an agreement to exempt the obligee from the liability of the guarantee liability where a substitute is made in advance between the obligee and the guarantor in accordance with the form of new loan.

[3] The case holding that although an existing loan and a new loan are extended for the purpose of the extension of the term of the existing loan, their original loan, interest rate, delay damages rate, etc. are different, part of the interest obligations of the existing loan were changed into the principal of the new loan, and such alteration of the term of the existing loan is required to extend the term of the loan, the bill transaction agreement during the existing loan should also be extended, but it was not possible to extend the term of the existing loan for more than one month, even if the new loan was made for the purpose of the extension of the term of the existing loan and the repayment in such case constitutes a novation with no identity between the two obligations, even if the new loan was made for the purpose of the extension of the term of the existing loan obligations.

[4] Article 505 (Transfer of Security to New Obligation) of the Civil Code provides that "a security of the previous obligation may be secured by a new obligation to the extent of its original purpose. However, a security provided by a third party shall be subject to its acceptance." This provision provides that since a security of the previous obligation is extinguished by a novation, any personal and physical security following it shall be extinguished as a matter of course in accordance with the principle of subsidiaryness, and even if the parties agree to establish a mortgage, etc. on the new obligation, it is impossible to preserve the order due to the extinguishment of the previous obligation. However, if there are many results, it is impossible to preserve the order due to the extinguishment of the mortgage, etc., but it is possible to grant an exception to subsidiary nature for the convenience of the parties in consideration of the fact that there is a lot of results contrary to the intention of the parties. In the case of a new contract, it is possible to make such a stipulation, but it is not necessarily necessary to make an explicit agreement, and it is also possible to make an implied agreement.

[5] The case holding that the parties to a mortgage agreement on the transfer of an existing loan to a new loan obligation with the consideration of a new loan, impliedly, is recognized

[1] Articles 108 and 598 of the Civil Act, Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of January 5, 1995) (see Article 12 of the current Mutual Savings and Finance Company Act) / [2] Articles 105, 428, 500, and 605 of the Civil Act / [3] Article 500 of the Civil Act / [4] Article 505 of the Civil Act / [5] Article 505 of the Civil Act

[1] Supreme Court Decision 96Da18076 delivered on August 23, 1996 (Gong1996Ha, 2847), Supreme Court Decision 98Da48989 delivered on March 12, 199 (Gong199Sang, 657), Supreme Court Decision 2000Da65864 Delivered on February 23, 2001 (Gong2001Sang, 759), Supreme Court Decision 2001Da11765 Delivered on May 29, 2001 (Gong201Ha, 1477) / [2] Supreme Court Decision 97Da16077 delivered on February 27, 199 (Gong198, 8619) 209Da249794 delivered on June 23, 202, Supreme Court Decision 2009Da247979 decided May 29, 2014

Sungam Mutual Savings and Finance Co., Ltd. (Law Firm White, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant in bankruptcy (Law Firm Han River, Attorneys Hah-min et al., Counsel for the bankruptcy)

Gwangju High Court Decision 2000Na3506 delivered on December 22, 2000

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

We examine the grounds of appeal.

1. Summary of the judgment of the court below

A. The court below determined that the debtor, principal, loan principal, loan item, interest rate, etc. of the case Nos. 1 and 2 do not coincide with each other based on the facts in its holding, and further determined as follows: (a) additional facts are acknowledged, and accordingly, (b).

(1) Additional findings

The Seocho-jin Industrial Development Co., Ltd. (hereinafter referred to as the "Seojin Industrial Development") was established on March 26, 198. The non-party 1, a joint guarantor of the first and second loans, was the joint representative director of Seojin Industrial Development from November 25, 1989 to June 8, 1995, and the joint guarantor of the second loans from September 2, 1997. The non-party 2, a joint guarantor of the second loans, as the debtor of the first loan and the joint guarantor of the second loan, is the director of Seojin Industrial Development from December 1, 1989 to the date of closing of argument in the court below. The non-party 3, the debtor of the first loan, is the relative of the non-party 1 and the debtor of the second loan, and the debtor of the second loan is the non-party 4 who has a real estate development and transactional relationship.

The actual principal debtor of the loan Nos. 1 and 2 was developing so-called "Saman Industrial Development". However, in order to avoid the provision on the restriction on the lending limit to the same person under Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998), the loans were loans No. 1 and 2 provided that the development of Saman Industrial Development fully bears the responsibility for the performance of the obligation as the actual principal debtor, with the intention to avoid the provision on the lending limit to the same person under Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998).

On December 19, 1996, the net Fund refunded the loan principal of KRW 560,00,000 and its interest amount of KRW 70,004,980,00,00,000,000,000,000 as principal bond, and the balance of KRW 30,004,980 is determined to be repaid by Nonparty 1 and the loan of KRW 600,00,00,00 was made by Nonparty 2. The second loan was processed on the account book of the Fund net that the loan was not given to Nonparty 4, who is the principal debtor, but the first loan was repaid by the loan. The second loan was treated as a small credit loan in consideration of the fact that the trading period of the bill transaction agreement is only one month, and the interest rate at the time was applied.

(2) Determination

The actual parties to the loan 1 and 2 of this case are net and real industrial development, and it is reasonable to view the loan 2 of this case as the actual substitution of loan 1 in consideration of the fact that the mortgagee waivers the mortgage and alters the secured debt to the general bond without any collateral, barring special circumstances, it is clear that the secured debt is in violation of transaction practices and empirical rules. Thus, it is reasonable to view the loan 2 of this case as the actual substitution of loan 1 of this case [the dispute related to substitution of loan 2 of this case is mainly arising between the personal and material security and the creditor, and the liability of the secured party is at issue. Even if the loan 2 of this case is deemed the substitution of loan 1 and 3 of loan 2 of this case, it is not likely that the damage could not be predicted in the limited partnership, mutual savings and finance company (merger with the plaintiff company on June 17, 1997) prior to the acquisition of the mortgage 1 and 3 of the collateral 2 of this case's loan 2 of this case as the secured claim amount of this case.

2. The judgment of this Court

A. In order to avoid the application of Article 12 of the former Mutual Savings and Finance Company (amended by Act No. 4867 of Jan. 5, 1995) which limits the limit on the amount of loans to a same person, where a real principal debtor pays a third party to the amount of loans that he/she intends to actually receive in form as the principal debtor, and where a third party is prepared in the name of the following third party with the intent not to be liable as the debtor for the third party with the understanding of the mutual savings and finance companies, the third party is merely a person who lends only the name in form, and the actual party to the loan contract is the mutual savings and finance company and the actual party to the loan contract is the principal debtor, and thus, the loan agreement in the name of the third party is merely a juristic act that constitutes false conspiracy without the intent to bear the liability pursuant to the mutual savings and finance companies’ understanding and thus constitutes a juristic act that constitutes false conspiracy under false conspiracy (see, e.g., Supreme Court Decisions 98Da48989, Mar. 12, 1999).

In light of the records, after recognizing facts as stated in its holding, the court below determined that the substantial party to the loans 1 and 2 of this case is the net industry development and therefore, it is justified in accordance with these legal principles, and there is no error of law that misleads the facts due to a violation of the rules of evidence or an incomplete hearing. The Supreme Court Decision 98Da17909 delivered on September 4, 1998, which is cited in the grounds of appeal, is inappropriate to be invoked in this case, because there is a different issue.

The grounds of appeal pointing out this issue are rejected.

B. However, even if the court below decided that the principal of the loan Nos. 1 and 2 of this case and the interest rate of the loan are inconsistent with each other, it is reasonable to view the loan No. 2 as the actual exchange of the loan No. 1 for the reasons indicated in its holding, and it is difficult to accept the part which judged that the identity of the loan No. 1 and the second loan obligation

The so-called substitution, which performs an existing obligation by providing new loan only formally without receiving funds, constitutes a separate loan, except in extenuating circumstances. However, the legal nature of the existing obligation is merely an extension of the maturity of the existing obligation. In such a case, it shall be deemed a quasi-loan for consumption where the existing obligation still exists while maintaining its identity. In such a case, unless there are special circumstances such as an agreement between the obligee and the guarantor to exempt the guarantee liability in advance, the guarantee liability for the existing obligation shall continue to exist (see, e.g., Supreme Court Decisions 97Da16077, Feb. 27, 1998; 2002Da1543, Jun. 14, 2002).

However, as acknowledged by the court below, the first and second loans of this case are different in terms of the subject of the loan, principal, interest rate, and delay damages rate, and part of the interest obligation of the first loan was changed into the principal of the second loan, and even according to the defendant's assertion, if the change of the subject of the first loan was made to extend the term of the first loan, the bill transaction agreement of the first loan should also be extended, and the bill transaction agreement of the first loan can not be extended for more than one month (refer to the defendant's preparatory document of 293, 337, 339 of the record). Even if the second loan was made for the purpose of extending the term of the first loan, the exchange in this case shall be deemed to constitute a novation without identity between the two obligations (refer to Supreme Court Decision 291Da28124 delivered on December 10, 191, etc.).

Therefore, this part of the judgment of the court below cannot be said to be erroneous in the misapprehension of legal principles as to substitution and quasi-loan for consumption or novation.

C. Meanwhile, Article 505 (Transfer of Security for New Obligations) of the Civil Act provides that "a security for the old obligation may be secured by a new obligation to the extent of its original purpose. However, a security offered by a third party shall be subject to its acceptance." This provision provides that since the old obligation is extinguished by novation, human and material security shall also be extinguished as a matter of course in accordance with the principle of accessory, and even if the parties agree to establish a mortgage, etc. for the new obligation, it is impossible to preserve the order due to the extinguishment of the existing obligation, but it is impossible to preserve the order because the mortgage, etc. for the new obligation is contrary to the intent of the parties. However, in the case of an ordinary contract, it shall be deemed that there is an exception to the nature for the convenience of the parties in consideration of the fact that such a result is contrary to the intention of the parties. It shall be deemed that there is a special stipulation between the parties to transfer the new obligation, but it shall be possible to make an implied agreement without necessarily explicit agreement.

According to the records (see, e.g., Supreme Court Decision 295, 296 Decided Aug. 25, 2000), the defendant alleged that "the defendant is the owner of the real estate in this case and Seojin Industrial Development, a collateral security holder, intended to secure the real estate in this case only out of the first loan and the second loan, and considering the facts that all the first and second loans were actually the debtor was developing Seojin Industrial Development, it can be known that only the first loan was intended to secure the first loan with the real estate in this case." In order to establish the novation, there is an intention to secure the second loan with the real estate in this case, so it is sufficient to view that there was no agreement to maintain the identity, on the other hand, that there was no specific circumstance that the court below did not explicitly point out Article 505 of the Civil Act as a collateral and did not consider that the first loan and the second loan as a collateral in this case were a collateral security contract as a whole, and there is no possibility that the court below's conclusion that the loan and the first loan will not be applied as a collateral.

Furthermore, Article 505 of the Civil Act provides that "the security of the former obligation shall be the security of the new obligation within the scope of its purpose." In the case of the right to collateral security, the scope of the maximum debt amount is limited to the scope of the secured debt amount, but in the case of the right to collateral security, as determined by the court below, since the secured debt of the right to collateral security of this case has been already determined and conclusive as determined by the court below, the second loan claim shall be limited to the amount of the first loan claim of this case, which is the secured debt of the right to collateral security of this case, within the scope

Ultimately, the claim for the second loan should be deemed as the secured claim of the instant right to collateral security. As seen earlier, the error of the lower court did not affect the conclusion of the judgment.

The grounds of appeal pointing out this issue are rejected.

3. Therefore, the appeal is dismissed, and all 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 Yoon Jae-sik (Presiding Justice)