[1] Where the Credit Guarantee Fund provides a special agreement that it bears the responsibility to guarantee a discount of commercial bills in providing a credit guarantee for a discount of bills, the interpretation of the special agreement

[2] [1] Whether a credit guarantee fund may be held liable for a guarantee solely on the ground that a bill in discount of a bill under a special agreement as stipulated in paragraph (1) was not a commercial bill, or that the credit guarantee fund provided a credit guarantee despite the fact that there was no violation of the duty of due diligence by a financial institution granting a loan

[1] Articles 105 and 428 of the Civil Act, Article 29 of the Credit Guarantee Fund Act / [2] Articles 105 and 428 of the Civil Act, Article 29 of the Credit Guarantee Fund Act

[1] Supreme Court Decision 2000Da23952 decided Nov. 9, 2001 (Gong2002Sang, 4)

National Bank Co., Ltd. (Law Firm Jin-Jin Law, Attorneys Credit Guarantee and one other, Counsel for the defendant-appellant)

Korea Technology Finance Corporation (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na457 delivered on June 27, 2003

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

1. In the event that the Credit Guarantee Fund provides a credit guarantee for a bill discount loan with a guarantee condition added to the guarantee obligation for a commercial bill discount, such a special agreement is purported to limit the contents of the principal obligation that is liable for guarantee, and unlike others, it does not relate to the measures or obligations that the lending financial institution shall take after the establishment of the guaranteed obligation. The need to verify whether a commercial bill is required to comply with such special agreement from the lending financial institution's standpoint is merely required at the stage of the establishment of the guaranteed obligation, which is the principal obligation, and it does not require any measures or obligations after its establishment. Thus, it is reasonable to view that the special agreement is concluded that if a bill for which a lending financial institution provides a loan, which is liable for a bill, is not a commercial bill, it is not a credit guarantee obligation, and therefore, it does not establish a credit guarantee relationship with respect to the lending obligation (see Supreme Court Decision 200Da23952, Nov. 9, 201)

According to the reasoning of the judgment below, the court below held that each of the promissory notes of this case discounted by the plaintiff is a commercial bill, and that the loan obligation due to discount of each of the promissory notes of this case is not a credit guarantee of the defendant. In light of the above legal principles and records, the above fact-finding and judgment of the court below are justified, and there are no errors in the misapprehension of the facts against the rules of evidence or the burden of proof, as alleged in the grounds of appeal.

2. According to the records, although the plaintiff alleged in the court below that each of the Promissory Notes in this case was not a commercial bill even though the defendant was aware that it was not a commercial bill, the court below did not make any decision on this issue. However, there is no evidence supporting that the defendant provided a credit guarantee even though he was aware that each of the Promissory Notes in this case was not a commercial bill, and there is no ground for the plaintiff's above assertion. Thus, even if there is an error of law in the omission of judgment as to the party's assertion, it does not affect the conclusion of the judgment (see Supreme Court Decisions 75Da1100, Apr. 13, 1976; 80Da1073, Jun. 9, 1981, etc.). Accordingly, the court below's omission of judgment as above did not affect the conclusion of the judgment, and therefore, the ground for appeal on this point cannot be accepted.

3. In providing a credit guarantee for a bill discount loan, it is reasonable to view that a special agreement added to a guarantee condition that the Credit Guarantee Fund bears the responsibility to guarantee a commercial bill discount is that if a loan financial institution provides a bill discount for a commercial bill, not a commercial bill, the loan obligation is not subject to the credit guarantee, and therefore, the credit guarantee relationship is not established with respect to the loan obligation (see Supreme Court Decision 2000Da23952, Nov. 9, 2001). Thus, as long as a bill discount for a bill is not a commercial bill, the Credit Guarantee Fund is not liable for the guarantee under the above special agreement, and as long as the loan financial institution is not a commercial bill, the loan financial institution is not liable for the guarantee obligation. In examining whether a bill discount for a bill is commercial at the time of making a credit guarantee, or the debtor has not breached its duty of care in making an investigation into whether a bill discount is a commercial, or by causing a credit guarantee accident under the credit guarantee terms and conditions for the credit guarantee, even if the Credit Guarantee Fund could refuse to refuse the credit guarantee.

4. 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.

Justices Shin Hyun-chul (Presiding Justice)