In a case where Gap corporation entered into a collective sales agency contract with Eul, supplied Eul products produced by Eul, extended the contract period, and again entered into an agency contract with Eul, and Eul did not perform its obligations as prescribed in the agency contract with Eul, Eul company demanded repayment of credit and provision of adequate security, and Eul, upon which Eul's personal seal certificate attached attached to Byung's spouse's certificate of personal seal impression, issued Eul with the joint debt guarantee statement stating that " Eul shall be jointly and severally liable if Eul fails to perform its obligations due to accurately understanding the agency contract with Eul and trading as prescribed in the contract, and if Eul fails to perform its obligations, Eul shall be jointly and severally liable and sign and seal it." Since Eul failed to perform its joint and several liability, Eul's failure to pay its credit amount, following all evidence constitutes a guarantor protected by the special law for the protection of guarantors, and Byung's joint and several debt guarantee is difficult to be seen as bearing the specific joint and several debt obligation under Article 3 of the former Special Act for the Protection of Surety, and there is no guarantee obligation provided for in the maximum amount of Article 6 of the Special Act.

A Co., Ltd. entered into a total sales agency contract with B, supplied B with the processed goods produced by Company A, extended the contract period thereafter, and subsequently entered into an agency contract with Company B, and upon the failure to perform the obligations under the agency contract with the extension of contract period, Company A requested Company A to provide adequate security with credit repayment and appropriate payment. Accordingly, Company B issued Company A with the certificate of the C’s personal seal impression attached that “B shall be jointly and severally liable if B fails to perform the obligations incurred by accurately understanding the agency contract under the contract and making transactions as specified in the contract, and shall confirm that B is jointly and severally liable for payment and sign and seal thereon,” and thereafter, Company A sought the performance of the joint and several liability obligation against Company B.

The case holding that Byung constitutes a guarantor who is protected by the Act on the Protection of Surety, on the ground that although the spouse and the lineal family members of the company shared economic benefits with the company or did not directly or indirectly affect the management of the company, if it is not the case where the guaranteed debt of the company is borne by the other guarantor, it should be proved that the claimant is excluded from the application of the Act on the Protection of Surety, and that according to all evidence, it is only recognized that Eul independently operated the total sales agency of the company, and it is not sufficient to view Byung's direct or indirectly affected the company's management or that Byung shared the company's economic benefits, on the ground that Byung's joint and several debt guarantee agreement does not specify the name and resident registration number of Byung in the joint and several debt guarantee agreement, and it is difficult to view that Byung's guaranteed debt is a specific guarantor under the Act on the Protection of Surety's Guarantee, because it is difficult to view that Byung's guaranteed debt is a specific guarantor under the Act on the Protection of Surety's Deposit because it was attached only with the seal imprint affixed in the public column, and the guarantee obligation.

Articles 1, 2 subparag. 1, and 6 of the Special Act on the Protection of Suretys; Article 3(1) of the former Special Act on the Protection of Suretys (Amended by Act No. 13125, Feb. 3, 2015; see Article 428-2(1) of the current Civil Act)

Earreti beverage Co., Ltd.

Defendant 1 and one other

Suwon District Court Decision 2016Gahap77007 decided June 1, 2018

May 21, 2019

1. The part against Defendant 2 among the judgment of the court of first instance is revoked, and the plaintiff's claim against Defendant 2 as to the revoked part is dismissed.

2. Defendant 1’s appeal is dismissed.

3. The plaintiff bears the total costs of the lawsuit between the plaintiff and defendant 2, and the costs of appeal between the plaintiff and defendant 1 are borne by defendant 1.

4. The part of the judgment of the court of first instance against Defendant 1 in Section 1-A of the judgment of the court of first instance was modified as follows in accordance with the reduction of the claim by this court.

Defendant 1 shall pay to the Plaintiff 469,968,833 won with 15% interest per annum from September 14, 2017 to the day of full payment.

1. Purport of claim

Defendant 1 and Defendant 2 jointly and severally pay to the Plaintiff 469,968,833 won and the amount calculated by the rate of 15% per annum from the day following the delivery of a copy of the instant complaint to the day of full payment (the Plaintiff reduced the claim in this court).

2. Purport of appeal

The judgment of the first instance is revoked. All of the Plaintiff’s claims against the Defendants are dismissed.

1. Basic facts

A. On April 2009, the Plaintiff (former trade name: Dr., Ltd.) was established for the purpose of manufacturing and selling drinking spring water, ammunition beverages, and soft drinks. Around April 2009, the Plaintiff entered into a sales agency agreement with Defendant 1 (hereinafter “instant primary agency agreement”) and supplied the Defendant with “○○○○○○○” product produced by the Plaintiff. Defendant 1 supplied raw water from the Plaintiff pursuant to the instant primary agency agreement with the Plaintiff and sold it to its sub-agencys and consumers under the trade name “△○○○○○”).

B. On April 2012, the Plaintiff entered into a new agency contract with Defendant 1 by extending the contract period to five years (from April 1, 2012 to March 31, 2017). Under the condition that Defendant 1 purchases a processed product with an average of 40,000 copies per month from the Plaintiff, and a total of 2,400,000 copies per five years of the contract period, the Plaintiff provided the processed product at a discounted price (700% per 40,000) and entered into a sales contract and an additional agreement, including the provision that provides a quantity of cold and hot water free of charge in proportion to the supply quantity (hereinafter referred to as “the instant secondary agency contract”). The main contents of the instant agency contract are as follows.

(1) Defendant 1 shall have a duty of care as a good manager to pay 0.0 per month for the 10-month unit price of Defendant 1’s goods and 10-month unit price for which the 0-month unit price of Defendant 1’s goods and 10-month unit price for which the 10-month unit price for which the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 10-month unit price for the 20-month.

(i)security deposit;

Note 2) 4,400

C. With respect to the Yangcheon-gu Seoul (Road Address omitted), Defendant 2, the spouse of Defendant 1, the establishment of the establishment registration of the establishment of the neighboring establishment that the Plaintiff as the creditor was cancelled three times as set out below.

Plaintiff 1, Defendant 1, on December 16, 201, sold through voluntary auction on December 30, 201, KRW 70,000, the date of registration for cancellation of the right to collateral security and the cause for cancellation of the right to collateral security, as well as the date of registration for cancellation of the right to collateral security on August 19, 2009, Defendant 1, on December 16, 201, on which December 16, 201 was terminated.

D. Around July 17, 2012, Defendant 1 received a limited amount of KRW 20,000,000 from the Nonparty co-defendants of the first instance trial and delivered to the Plaintiff with the confirmation of joint and several liability.

E. The Plaintiff provided a part of the processed water product pursuant to the instant secondary agency contract and provided a 2,159 cold and hot water cooling machine free of charge. However, Defendant 1 failed to perform the obligations stipulated in the instant contract, such as purchasing a product with a much quantity that falls short of the originally intended quantity, and failing to pay credit payment obligations. Accordingly, the Plaintiff demanded Defendant 1 to pay credit and provide adequate security, and notified Defendant 1 of his intent to terminate the contract in the event of the continuation of the contract.

F. On May 30, 2014, Defendant 1 submitted to the Plaintiff a repayment plan to the effect that: (i) the total amount of credit payment, etc. (i) KRW 454,520,809, such as credit payment (i.e., KRW 154,414,809 + KRW 300,106,000) monthly installment payments (i.e., public organizations and other claims) incurred until April 30, 2014.

G. On March 24, 2015, Defendant 1 issued to the Plaintiff a joint and several debt undertaking (hereinafter “instant joint and several debt undertaking”) with the Plaintiff’s certificate of personal seal impression attached to Defendant 2, stating that “When Defendant 1 fails to perform the obligation arising from the accurate understanding of the agency contract agreed between the Plaintiff and Defendant 1 and the transaction as stipulated in the contract, Defendant 1 shall be jointly and severally liable for the payment, and shall sign and seal it.”

H. However, since Defendant 1 did not pay credit payment obligations even thereafter, the Plaintiff discontinued the supply transaction with Defendant 1 on June 2015.

I. The lower-party agents, who were supplied with raw water by Defendant 1, traded with the Non-Party Clean Co., Ltd. (hereinafter “Cheongju”) that concluded a sales agency contract with the Plaintiff, and the △△△△△△△△△. The lower-party distribution of clean and △△△△△△△△△△△ was partially liable to the Plaintiff by Defendant 1 to the Plaintiff.

( Note 3) The quantities are as follows:

1,961 7,226 12222 457, 148 clean 1,9617, 111,00 3,00 remaining - 12,83,000 - 12,83,000 - 12,83,000 - 12,837 2,053 12,6911

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 16 (including each number, if any), alleged that the document was forged with respect to Gap evidence Nos. 8 (the joint debt guarantee of this case), but according to the whole purport of the statement and the argument No. 4, defendant 2's seal affixed to the joint debt guarantee of this case was removed with the above defendant's seal, and this was signed and sealed by defendant 1 who is the above defendant's husband. The certificate of the personal seal impression of defendant 2 attached to the above letter of commitment was directly issued as of March 19, 2015, and defendant 2 was issued as a collateral security right of the plaintiff three times, and it is reasonable to deem that defendant 1 affixed the certificate of the joint debt of this case with the legitimate title delegated by defendant 2], and the purport of the whole pleadings.

2. Determination as to the claim against Defendant 1

A. Judgment on the ground of the plaintiff's claim

According to the overall purport of Gap evidence Nos. 1, 12 through 14, and 16 and the arguments, the following facts are acknowledged: (a) credit amount of the Plaintiff’s credit payment to Defendant 1 as of June 2017 as of which transaction under the second agency contract of this case was terminated; (b) KRW 250,493,583; (c) KRW 130,484,80 under Article 10 of the agency contract; and (d) KRW 259,080 under Article 8 of the Additional Agreement; and (c) the amount of damages equivalent to the subsidies for cold and hot water cooling season under Article 8 of the Additional Agreement is KRW 59,50; (d) KRW 10,000; (e) KRW 10,000; and (e) KRW 10,000; and (e) KRW 70,707,700; and (e) KRW 70,707,200; and

Therefore, barring any special circumstance, Defendant 1 is liable to pay to the Plaintiff KRW 469,968,83 [=10,404,03 won (“250,493,583 won - 89,50 won – 10,000 won - 70,000,000 won - 70,000 won] + 130,484,800 won + 259,080,000 won - 20,000,000] and damages for delay.

B. Determination as to Defendant 1’s assertion

1) Defendant 1’s assertion

Inasmuch as the Plaintiff erred by failing to pay support and incentives promised to Defendant 1 pursuant to the second agency contract of this case, the Plaintiff’s credit payment and damages claim amount of the instant case unfairly excessive, and as subordinate agents use the public box, path, and cold and hot water season as it is, the Plaintiff’s debt cannot be acknowledged.

2) Determination

In light of the following circumstances, it is difficult to accept Defendant 1’s allegation in light of the aforementioned basic facts and the purport of the entire pleadings.

① Defendant 1 failed to perform the contractual terms, such as purchase of products of a quantity much less than the quantity prescribed in the instant secondary agent agreement and payment of credit on the part of Defendant 1. On the other hand, Defendant 1’s assertion that the Plaintiff made an oral promise to supply products at a price lower than the supply price prescribed in the instant secondary agent agreement, has no evidence to support this.

② The second agency contract of this case provides that, if Defendant 1 is unable to return the Plaintiff’s public appliances and fixtures, the same public appliances and fixtures of the same kind shall be repaid as new ones, the amount of security deposit shall be repaid, and in the case of the cold and hot water season, compensation shall be made at the unit price prescribed in paragraph (9) and the depreciation shall not be asserted (Article 10(9) and (13) of the agency contract). Considering the fact that the lost public appliances and fixtures of the same type shall be newly purchased, and that the security deposit for the public appliances is at a level similar to the purchase price of new products, the price of each public appliances and cold and hot water unit requested by the Plaintiff pursuant to the second agency contract of this case cannot be deemed unfairly excessive.

③ Under the second agency contract of this case, if 100% of the monthly product price is paid at the end of the month, the amount of the subsidy shall be paid at a discount of 100 won for the price of the product (in spite of Article 5 of the Additional Agreement, it is difficult to deem that the Plaintiff promised to pay the subsidy under a condition that it would not be paid). Defendant 1 failed to comply with the conditions for the payment of the subsidy

④ The Plaintiff does not have any other evidence to acknowledge that there are parts to be additionally deducted from the claim of this case with respect to the public appliances and appliances used by subordinate agencies through the distribution of clean and △△△△△△.

C. Sub-committee

Thus, Defendant 1 is obligated to pay the Plaintiff a total of KRW 469,968,833 as claimed by the Plaintiff with credit payment and damages, and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from September 14, 2017 to the date of full payment after the duplicate of the complaint in this case was served on the Defendant.

3. Determination as to the claim against Defendant 2

A. The parties' assertion

1) Plaintiff

Defendant 2 jointly and severally guaranteed Defendant 1’s obligation based on the instant joint debt guarantee agreement. As such, Defendant 1 and the Plaintiff are jointly and severally liable to pay to the Plaintiff the above credit amount and damages incurred therefrom, including the total amount of damages incurred. Defendant 2 is the spouse of Defendant 1, and thus, is subject to the application of the Special Act on the Protection of Surety (hereinafter “Surety Protection Act”) by deeming that such economic benefits are shared.

2) Defendant 2

Defendant 2 is the spouse of Defendant 1, but it does not have any economic interest or any influence on the business management of the company, and thus constitutes a guarantor under the protection of the guarantor protection law. Since the joint and several debt guarantee of this case violates the guarantor protection law, such as not specifying the maximum amount of the guaranteed debt in writing, it is not effective as

B. Determination

1) Whether the guarantor protection law is applicable

A) Relevant legal principles

With respect to the scope of guarantors, which were enacted on March 21, 2008 and enforced on September 22, 2008, excluded from the application of the Act, where the representative, director, general partner, oligopolistic stockholder under Article 39(2) of the Framework Act on National Taxes, or a person who has de facto control over the management of an enterprise, bears a guaranteed obligation for the enterprise's obligations, such as where the spouse, lineal ascendant, or descendant, etc. of the above enterprise sharing economic benefits from the enterprise, or where the person in special relationship, such as the spouse, lineal ascendant, or descendant, bears a guaranteed obligation for the enterprise's obligations because he/she did not directly or indirectly affect the enterprise's management (Article 2 subparagraph 1(a) through (f) of the Act). This, in principle, provides a protection provision to prevent the economic and mental damage of the guarantor who guarantees another person's obligations, and in fact, establishes a protection provision to prevent the economic and mental damage of the guarantor who guarantees the enterprise's obligations or in fact forms an economic community with the enterprise's economic interests as well.

In full view of the language and form of the above provision of the Act, the legislative intent that intends to protect a guarantor based on the “refientness, reciprocity, and justice,” etc., if even if the spouse, lineal family member, etc. of a corporate representative, etc. is not a case where the corporate representative, etc. shares economic benefits from the enterprise or directly or indirectly, and bears the guaranteed liability for the enterprise’s obligations, it shall be deemed as a guarantor subject to the protection of the guarantor protection as in the other guarantor protection, and it shall be proved by the claimant that it is excluded from

B) Determination

앞서 본 기초 사실 및 거시 증거에 변론 전체의 취지를 더하면, 피고 1이 ‘△△○○○’라는 상호로 원고의 총판 대리점을 단독으로 운영한 사실이 인정될 뿐이고, 피고 2가 배우자로서 일상의 가사에 관하여 대리권이 있다는 사정( 민법 제827조 ) 등만으로는 피고 1의 위 대리점 경영에 직접 또는 간접적으로 영향을 미쳤다거나 위 기업의 경제적 이익을 공유하였다고 보기는 부족하며, 달리 이를 인정할 만한 아무런 증거가 없다[오히려 피고 2가 2018. 12. 5.자 준비서면에 첨부하여 이 법원에 제출한 경력(재직)증명서의 기재에 의하면, 피고 2는 피고 1의 위 대리점 개업 훨씬 이전인 1999. 3. 1.부터 지금까지 ☆☆☆어린이집, ▽▽▽어린이집, ◎◎◎어린이집, ◁◁어린이집 등에서 보육교사, 원장 등으로 종일 근무하는 등 별도의 소득활동을 하여 왔고(2001. 3. 1.부터 2004. 10. 31.까지 및 2005. 3. 1.부터 2007. 7. 23.까지만 제외, 피고 1의 이 사건 제1, 2차 대리점계약 체결 이후에는 위 어린이집 근무를 중단 없이 계속하였다), 본인 소유의 거주지 부동산(2004. 6. 11. 소유권 취득)에 관하여 피고 1의 원고에 대한 채무를 담보하기 위하여 앞서 본 바와 같이 3차례 근저당권을 설정하여 주었을 뿐으로 보인다].

Therefore, Defendant 2 is a guarantor under the Protection of Surety Act.

2) Whether Article 3 of the former Surety Protection Act (amended by Act No. 13125, Feb. 3, 2015; hereinafter the same) was violated 6)

A) Relevant legal principles

Article 3(1) of the former Act provides, “A guarantee shall take effect upon the signature and seal or signature of the guarantor in writing.” [The above content leads to Article 428-2 of the amended Civil Act (hereinafter “amended Civil Act”) as of the same day as the amendment of the said Act] The request for a document with the name and seal or signature of the guarantor leads to the existence and content of the guarantor’s intent to guarantee the method of confirmation and prevent the dispute by clearly expressing the intent to guarantee the guarantor’s intent to guarantee, and at the same time, have the guarantor provide the guarantee as a result of deliberation without entering into the guarantee as soon as possible. Determination as to whether the above method complies with, the content and form of the document and its structure or form, the background leading to the guarantee, the type or content of the principal obligation, the relationship between the parties, the contents and quantity of the previous transaction, etc. shall be comprehensively considered (see, e.g., Supreme Court Decision 2013Da2372, Jun. 27, 2013; 2016Da37316.

B) Determination

According to the purport of Defendant 1’s name, “△△○○,” and the date of the preparation of the joint and several debt guarantee of this case, Defendant 2’s name, “△△△○,” and the joint and several debt guarantee of this case (the above part was stated in the Plaintiff’s claims management team) are not indicated in any place, and the address and resident registration number were left public space, and the seal impression of Defendant 2 was affixed as follows (the above seal impression was affixed by Defendant 1). The Plaintiff’s failure to obtain the name and personal information of Defendant 2, a joint and several debt guarantee of this case, is the fact that Defendant 1’s seal impression was affixed to the above documents and thus Defendant 1 was not the guarantor (it was not indicated in lieu of official seal).

A person shall be appointed.

In full view of the language and legislative purport of the foregoing statutory provisions, the content, form, and circumstances in which the joint and several debt guarantee statement of this case were not entered, it is difficult to deem that Defendant 2 had complied with the method of “name and seal” under the above Act on the ground that there was only a seal affixed without the name of Defendant 2, and that there was only a seal affixed thereto, and that there was no other evidence to prove that there was a signature and seal under Article 3 of the former Act.

3) Whether Article 6 of the Surety Protection Act is violated

A) Relevant legal principles

Article 6 of the Surety Protection Act provides that “A guarantee may be extended to a debt arising from a continuous contract between a creditor and a principal debtor or from any other transaction or from any other specific cause. In such cases, the maximum amount of the guarantee shall be specified in writing (Paragraph 1), and that “a guarantee contract that does not specify the maximum amount of the debt in writing shall be null and void)” (Paragraph 2). To make the guarantee contract effective with a written statement specifying the maximum amount of the guarantee debt, the document indicating the guarantor’s intent must explicitly state the maximum amount of the guarantee debt, and even if the written statement does not explicitly state the maximum amount of the guarantee debt, it is reasonable to view that it is necessary to include a specific statement to the extent that it is identical to the case in which the written statement explicitly states the maximum amount of the guarantee debt, such as where the document itself can objectively identify the maximum amount of the guarantee debt, even if the written statement does not clearly state the maximum amount of the guarantee debt (see, e.g., Supreme Court Decision 2018Da28273, Mar. 14, 2019).

B) Determination

As to the instant case, even if the intention of guarantee under the joint and several obligation undertaking of this case is valid, Defendant 1’s obligation to the Plaintiff jointly and severally guaranteed by Defendant 2 constitutes a contract of collateral guarantee as it is continuously related to the obligation arising under the secondary agency contract of this case, and therefore, Article 6 of the Surety Protection Act is applied, and the maximum amount of the guaranteed obligation should be specified in writing.

However, the evidence No. 8 (Joint and Several Obligations Declaration) provides that the principal obligation jointly and severally guaranteed by Defendant 2 is “a debt arising from a transaction as set forth in the contract” and does not explicitly state the maximum amount of the guaranteed obligation. Moreover, it can be acknowledged that the document itself does not have any other specific statement that can objectively identify the maximum amount of the guaranteed obligation, even if it is written. Accordingly, it cannot be said that the above joint and several Obligations Declaration expressed by Defendant 2’s intention to guarantee is specified in the maximum amount of the guaranteed obligation.

C. Sub-committee

Therefore, Defendant 2’s joint and several sureties did not comply with the method of guarantee under Article 3 of the former Surety Protection Act and did not specify the maximum amount of the collateral guaranteed under Article 6 of the Act, and thus, it shall be deemed as invalid. Therefore, Defendant 2’s above assertion is reasonable, and the Plaintiff’s claim against the above Defendant is without merit.

4. Conclusion

The Plaintiff’s claim against Defendant 1 against the Defendant 2 shall be accepted on the ground of its reason, and the Plaintiff’s claim against Defendant 2 shall be dismissed on the ground of its reason. Since the part against Defendant 2 among the judgment of the first instance is unfair on the ground of its conclusion, the part against Defendant 2’s appeal accepted by Defendant 2, and the part against Defendant 2’s loss shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed. Since Defendant 1’s appeal is without merit, it shall be dismissed, and it shall be so decided as per Disposition

Judges Shin-hee (Presiding Judge) Lee Jae-hee (Presiding Judge)

Note 1) There is no dispute between the parties as to the fact that “deposit money for goods of public organization” means the value of goods of public organization.

(2) Around March 2017, the Plaintiff reduced the unit price of 18.9 liter’s disease from KRW 5,000 to KRW 4,400. The Plaintiff applied the instant claim against the Defendants retroactively.

Note 3)

Note 4) The remaining volume of the clean and △△△△△△ is the remaining quantity except the public machinery expenses taken over by the distribution.

Note 5) The amount of 2,159 air conditioners 2,159 air conditioners supported by the Plaintiff is calculated as KRW 120,000 per unit in accordance with the unit price table of official equipment under Article 10(9) of the Agency Contracts (Evidence A(Evidence 1).

Note 6) We examine Defendant 2’s assertion that joint and several suretiess are not available and that the Surety Protection Act shall apply, in good faith, be included.

Note 7) On December 4, 2018, the Plaintiff includes the description of the confirmation document of the employee in charge that the Plaintiff voluntarily submitted to this court.