208Du3131 This Fund

A Agricultural Cooperatives

1. A corporate hotel;

E Representative Director

2. C:

3. D;

4. E.

5. F;

6. G.

[Judgment of the court below]

Attorney Park Jae-soo, Counsel for the defendant-appellant

July 9, 2008

August 13, 2008

1. Defendant B hotel, D, and C jointly pay KRW 366,108,185 to the Plaintiff.

2. The Plaintiff’s claim against Defendant E, F, and G is dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant B hotel, D, and C is borne by Defendant B Hotel, D, and C, and the part arising between the Plaintiff, Defendant E, F, and G is borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff KRW 366,108,185.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged based on Gap evidence Nos. 1, 2, 2-1, 3, 4-1, 2, and 5, and the whole purport of the pleadings.

A. On May 24, 2001, the Plaintiff loaned 1.346 billion won as general loans to Defendant B Hotel Co., Ltd. at a rate of 8.2% per annum, delayed compensation interest rate of 18% per annum, and May 24, 2004 on the expiration date of the extension period (hereinafter “the instant loan”). Defendant E, F, and G offered joint and several guarantee for the above loan obligations on the same day, and Defendant C, and D concluded a credit guarantee agreement with Defendant B Hotel Co., Ltd. at the present and in the future on October 4, 2006, with each guarantee limit of 1.768 million won per annum for all obligations.

B. The Plaintiff and Defendant B Hotel agreed on May 24, 2006 to extend the term of the above credit to May 24, 2006, and Defendant E, F, and G did not consent to the above extension agreement. Defendant B Hotel did not pay only interest until April 19, 2006 of the loan of this case, and did not thereafter pay interest. The Plaintiff lost the benefit of the term. The Plaintiff applied for a voluntary auction of real estate on two parcels, etc., Changwon District Court (2006No. 2006No. 4965). The auction court applied for an auction of real estate at Changwon District Court (2006No. 1,216,651, 319, deducting the sales price of the above real estate and the total amount of interest thereof from KRW 10,724,70, and KRW 109,529,000,0000,000,000 won, and the remaining amount shall be 1,205196,019.

D. Meanwhile, as of January 9, 2008, the Plaintiff’s loan amounting to KRW 1,752,849,584, which was the sum of KRW 1.346 million, KRW 306 million, KRW 3048,384, KRW 4030,00, KRW 4030,00, KRW 4030,00, KRW 4030,00, KRW 196,741, and KRW 399, KRW 1,196,741, and KRW 3048,00, KRW 193,693,015, KRW 199,00, KRW 306, KRW 985, KRW 1.306,00, KRW 1346,60, KRW 193,693,015). The Plaintiff’s loan remains as of KRW 306,381,50,000, KRW 3616365,00.

2. Determination as to the cause of action

A. Determination as to the claim against Defendant B Hotel, D, and C

According to the above facts, Defendant B hotel, D, and C are jointly and severally liable to pay the Plaintiff the unpaid interest of KRW 366,108,185.

(3) The defendant D and C alleged that the term of the credit extension period of the loan of this case was on May 24, 2004, and the plaintiff was not consented to the extension of the repayment date to the above defendants as joint and several sureties, and therefore there is no liability for repayment. However, the defendant C and D did not agree to the extension of the repayment date, but around that time, they concluded a comprehensive collateral guarantee agreement with each of the above defendants' joint and several liability to guarantee the guarantee limit for all obligations arising from the credit transactions currently and future against the plaintiff by the defendant C and D, and the defendant B hotel around that time, with the guarantee limit of 1.768 million won each for all obligations due to the credit transactions that the plaintiff owed in the present and future.

B. Determination as to claims against Defendant E, F, and G

(1) The plaintiff's assertion

The plaintiff asserts that since the principal obligation is divided into the principal obligation, the identity of the principal obligation is recognized even if it is changed, and if it does not increase the responsibility of the guarantor, the contents of the guaranteed obligation are changed accordingly. The mere extension of the repayment period of the loan is merely a suspension of payment and a grant of the benefit of the time limit to the debtor. Therefore, it does not lose the identity of the debt, and it does not increase the liability of the guarantor. Therefore, even if the payment period is extended without the consent of the defendant E, F and G, which is a joint and several surety of the loan of this case, the above defendants are liable for the joint and several liability. Therefore, the above defendants are liable to pay the plaintiff the above unpaid interest 366,108,185 won to the defendant

(2) Determination

(A) In principle, a joint and several surety guaranteed for a fixed debt with which the obligation is specified, regardless of whether the performance period for the guaranteed obligation was extended without his/her consent (see, e.g., Supreme Court Decision 2002Da14853, Jun. 14, 2002). However, in cases where the performance period for the guaranteed obligation is extended between the parties without their consent, where there is any special agreement on the extinction of the guaranteed obligation for the joint and several surety, and the scope thereof, if any, under such agreement.

In addition, the content of a standardized contract shall be interpreted objectively and uniformly on the basis of the average customer's understanding potential without considering the intent or specific circumstances of individual contract-holders. In a case where the contents of a standardized contract are not clear or doubtful in terms of customer protection, the contents of a standardized contract shall be limited and interpreted favorably to the customer and unfavorably to the prepareer of the standardized contract (see, e.g., Supreme Court Decisions 2006Da72093, Feb. 22, 2007; 2005Da35226, Oct. 28, 2005).

(B) According to the evidence evidence No. 1, Article 1(1) of the Credit Transaction Agreement concerning the above loan and interest of a financial institution (hereinafter referred to as the "Terms and Conditions of this case") provides that the guarantor shall be jointly and severally liable with the debtor for all the obligations under this contract against the union, and Article 5 of the same Act provides that the guarantor shall continue to comply with the agreement under Article 1 if the repayment date of the obligation under this agreement is extended with the consent of the guarantor, the guarantor shall comply with the agreement under Article 1. Thus, the guarantor as a joint and several surety who guaranteed the fixed obligation shall bear the obligation of the guaranteed obligation regardless of whether it extends the due date of the guaranteed obligation without his consent, regardless of whether it extends the due date of the guaranteed obligation without the consent of the creditor. If the main obligation is interpreted to oppose the contents of Article 5 of the Terms and Conditions of this case, it is reasonable to interpret the terms and conditions of this case as mentioned above as the extension of the guaranteed obligation without the consent of the guarantor under Article 205-20.

(C) However, as seen above, Defendant E, F, and G did not agree to the extension of the repayment date of the instant loan, which is the principal obligation, and thus, the said Defendants’ joint and several liability extinguished. Therefore, the Plaintiff’s assertion seeking the performance of the said joint and several liability against the said Defendants is without merit.

3. Conclusion

If so, the plaintiff's claim against the defendant B hotel, D, and C is justified, and the claim against the defendant E, F, and G is dismissed as it is without merit. It is so decided as per Disposition.

Chief Judge Park Tae-tae

Judges out of Category

Judges Kim Jong-chul