[1] Whether a lease fee claim is subject to the short-term extinctive prescription (negative)

[2] The case holding that even if a reorganization creditor neglected to report a claim and forfeited, his liability does not affect the guarantor's liability

[1] In the so-called financial lease, the lease fee has the meaning of not only the function of installment payment of principal, interest, expenses, etc. for the financial convenience of the acquisition fund that the lessee provides to the lessee, but also the lease company provides to the lessee. Therefore, the lease fee claim is not a bond subject to three-year short-term extinctive prescription as it is merely a claim established at one time and determined by installment payment at a certain period of time (not a share claim arising from the basic bond security payment) because the repayment method is merely a claim established by installment payment at a certain period of time. On the other hand, even if the lease fee for each time consists of the sum of the amount calculated by dividing the acquisition cost at each time and the remaining amount of interest, it is not only the calculation method for the calculation of the lease fee, and therefore only the interest portion is not a separate short-term extinctive prescription period of three years.

[2] In a case where a company reorganization procedure has commenced for a lessee under the Company Reorganization Act, even if the obligee, who is the lessee, did not report the claim under the lease agreement to the reorganization court, and thus forfeited, in light of the provisions of Article 240(2) of the Company Reorganization Act, the right held by the lessee against the guarantor is not affected.

[1] Articles 162(1) and 163 subparag. 1 of the Civil Act, Article 2 subparag. 10 of the Specialized Credit Financial Business Act / [2] Article 240(2) of the Company Reorganization Act

Busan Lease Finance Co., Ltd. (Law Firm New Jinjin General Law Office, Attorneys Lee Sung-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo, Counsel for the defendant-appellant)

Seoul District Court Decision 98Na35845 delivered on December 11, 1998

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

1. On August 21, 1989, the court below accepted the judgment of the court of first instance (hereinafter the same shall apply) and agreed to re-lease pursuant to a specific terms and conditions of the contract (limited to the remainder of the period of re-lease and the original lease, if the representative director of the non-party company, at the time of the non-party company, jointly and severally guaranteed all the obligations under the above lease agreement to the plaintiff under the above lease agreement with the non-party company, and the non-party company, on August 29, 1989, entered into a lease agreement on the computer and software (the terms that the plaintiff purchased it from the manufacturer and received the lease from the non-party company, i.e., the lease from the above non-party company) and paid the lease fees every three months by paying the lease fees every three months before the expiration of the lease term, and determined that the non-party company and the non-party company, the non-party company, the joint and several, upon delivery of the lease goods to the plaintiff and the non-party company, the non-party company, the non-party company commenced 1 and the non-party 2.

In light of the records, we affirm all the judgment of the court below that affirmed the fact that the defendant performed the act of joint and several liability and rejected the defendant's assertion that it was a deception, and that the effect of such joint and several liability extends to the lease other than the original lease, and it is not reasonable to conclude that there was an error of law such as violation of the rules of evidence or misapprehension of the legal principles as to the interpretation of the contract in the theory of lawsuit (ground of appeal Nos. 1, 2, and 7) and such a contract is not null and void as it falls under Article 9 subparagraph 5 of the Regulation of Standardized Contracts Act. The precedents cited in the grounds of appeal

2. The court below rejected the defendant's defense that the defendant, as the representative director of the non-party company, inevitably provided the above joint and several sureties with an intention to assume liability only for the debts incurred during his term of office, and then resigned from the representative director on December 23, 1989, when the lease fee was not yet omitted, and thus, the above joint and several sureties was terminated and there is no evidence to acknowledge that the joint and several sureties was jointly and severally surety for the reasons such as the above reasons and intention. Furthermore, the termination of the joint and several sureties on the ground of such change of circumstances can be limited to the case where the object of the guarantee is a future uncertain debt due to the continuous transaction, such as the comprehensive or limited collateral guarantee, and the guarantee of this case is not a case. The judgment of the court below is just and acceptable in light of the records, and there is no misapprehension of legal principles in theory (the ground of appeal No. 3). All precedents cited in the grounds of appeal are related to the related matters, and thus, cannot be a precedent of this case.

3. In the so-called financial lease like this case, the lease fee has the meaning of not only the function of making installment payments of principal, interest, expenses, etc. for the financial convenience of the funds that the lessee provides to the lessee, but also the lease company provides to the lessee. Therefore, the lease fee claim is not a claim subject to the three-year short-term extinctive prescription, as it is merely a claim established at a time and determined by the repayment method at a certain period of time, but it is not a claim subject to the three-year short-term extinctive prescription (not a claim arising from the basic bonds payment) because the repayment method was determined by the installment payment at a certain period of time. Meanwhile, even if the lease fee for each time consists of the sum of the amount calculated by calculating the acquisition cost at each time and the interest amount for each remaining amount, it is not only the calculation method for calculating the lease fee, and thus, it does not require the short-term extinctive prescription separately for three years. The judgment of the court below is justifiable and there is no error in the misapprehension of legal principles as to the short-term extinctive prescription.

4. In a case where a company reorganization procedure has commenced for the lessee under the Company Reorganization Act, even if the obligee, who is the lessee, was forfeited due to failure to report the claim under the said lease agreement to the reorganization court, in light of the provisions of Article 240(2) of the Company Reorganization Act, it shall be deemed that the right held by the lessee against the guarantor does not affect the right of the lessee. In the case where the Plaintiff, who is the lessee, did not report the lease fee claim under the instant case to the reorganization procedure of the non-party company, and thus forfeited, such cause does not affect the Defendant’s guarantee liability. Therefore, the judgment of the court below is just in accordance with the above legal principles, and there is no misapprehension of the legal principles as to

5. The court below rejected the defendant's assertion that the defendant should be exempted from liability in accordance with the principle of good faith since the plaintiff continued transactions despite the right to unilaterally terminate the contract under Article 21 of the lease contract on the ground of the commencement of the non-party company's reorganization procedure, and such rapid change in circumstances was not immediately notified to the defendant who is the guarantor, and thus the defendant has lost an opportunity to take measures such as expressing his intent to terminate the guarantee or replacing the guarantor. In light of the records, the judgment of the court below is justified and it is not erroneous in the misapprehension of legal principles of the theory of lawsuit (ground

6. The court below held that the non-party company did not pay the 13th lease interest and the 14th lease interest and the 14th lease interest of the original lease, and paid each amount to the plaintiff in the order as stated in its reasoning, and did not pay the 13th lease interest and the 14th lease interest after the commencement of the re-lease, but did not pay the 1th lease amount to the plaintiff in the order as stated in its reasoning, and in recognition of the payment of the 1th lease amount to the plaintiff, the court below held that the non-party company is liable for the guarantee of the 1th lease and the 14th lease amount. In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of the law as to the payment of the 8th lease interest or in the order and method of payment. In light of the records, the court below's opinion that the non-party company did not notify the non-party company of the contents of the 14th lease's appropriation as well as the 1994.

7. Ultimately, the grounds of appeal are without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)