Tetra Korea Co., Ltd.

Defendant (Attorney Park Young-hoon et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2011No37423 Decided April 10, 2012

December 27, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 24,50,000 won with 20% interest per annum from the day following the service of the original copy of the payment order of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on the cause of the claim

(a) Facts of recognition;

1) On March 31, 2010, LSS industry (hereinafter “Nonindicted Company”) borrowed KRW 5 million from the Plaintiff, and prepared and issued a certificate of loan stating the purport that the Plaintiff will repay the total sum of KRW 10 million and KRW 9.5 million to the Plaintiff by April 10, 2010.

2) The Defendant used Nonparty 1, the representative director of the non-party company, in the position of director of the non-party company, and took part in the overall management of the non-party company, such as business and financing. At the above five million won loan, the non-party 2, the representative of the plaintiff, was bound to make an additional loan of five million won due to the existing non-party 1's unpaid credit, and the above non-party 1 signed the above loan certificate "debtor" on the right side of the non-party company's name stamped at the request of the non-party 1.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, and 5, non-party 3's testimony and the purport of the whole pleadings

B. Determination

In full view of the above facts, it is reasonable to view that the defendant jointly and severally borne the debt of KRW 24.5 million with the non-party company or signed the above loan certificate with the intent to guarantee the above debt of the non-party company.

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 24.5 million and the damages for delay calculated at the rate of 20% per annum from September 29, 201 to the day of full payment, which is the day following the delivery of the original copy of the instant payment order, to the day of full payment.

2. Judgment on the defendant's assertion

A. The defendant's assertion

1) The above loan certificate does not indicate the Defendant’s intent to guarantee and does not specify the maximum amount of the guaranteed debt, which is null and void as it violates Articles 3(1) and 4 of the Special Act on the Protection of Surety.

2) On April 10, 2010, Nonparty Company delivered to the Plaintiff, as payment for debt such as the above loan, punch, punch, which is part of the IM machine, to the Plaintiff. As such, the above loan and other debt owed to the Plaintiff were extinguished by payment in kind.

B. Determination

1) As to the claim on a special law for the protection of guarantor, as seen earlier, the defendant signed the loan certificate in this case with the intent to guarantee, and the maximum amount of the defendant's guaranteed debt is the amount of debt, such as the above loan, against the plaintiff of the non-party company, and the above loan certificate does not indicate the defendant's intent or does not specify the maximum amount of the defendant's guaranteed debt. Thus, the defendant'

2) Next, as to the assertion of payment in kind, it is not sufficient to recognize the fact that the non-party company delivered the machinery parts to the plaintiff as payment in kind for the above loan and other obligations, and there is no other evidence to acknowledge it. Accordingly, the defendant's assertion as to this is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Chang-dae (Presiding Judge)