The meaning of offering security under Article 224(2) of the Commercial Act

The time of offering security stipulated in Article 224 (2) of the Commercial Act refers to the time a security right is established or a guarantee contract is concluded between the execution creditor and the execution creditor, so if an overlapping debt acquisition contract with the effect of securing the claim such as the guarantee is concluded between the execution creditor and the execution creditor, or the execution creditor has consented to the assumption of the obligation, the pre-announcement of retirement shall lose its effect

Article 224(2) of the Commercial Act

[Judgment of the court below]

Attorney Jin-hee et al., Counsel for the unlimited partnership industry

Daegu High Court Decision 87Na8 delivered on April 7, 1988

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. We examine the Plaintiff’s attorney’s grounds of appeal Nos. 1 and 2.

In light of the reasoning of the judgment below, the plaintiff's obligation against the non-party corporation was repaid on October 22, 1985, which was before the expiration of the pre-announcement period of withdrawal under Article 224 (1) of the Commercial Act, and the pre-announcement of withdrawal of the above company was invalidated. However, in light of the context and the contents of the above decision, it is obvious that the gold delivery Co., Ltd. in the above judgment is a clerical error before and after Yangyang Co., Ltd., and it is obvious in light of the context before and after the expiration of the pre-announcement period of withdrawal under Article 2

2. We examine the grounds of appeal Nos. 3 and 4.

Preliminary notice of withdrawal by a creditor who seized a member's share in accordance with Article 224 (2) of the Commercial Act refers to the time when a member makes a security right or makes a security contract between the execution creditor and the creditor. Thus, in case where a overlapping debt acquisition contract which has the same effect as a security is concluded between the execution creditor and the creditor, or where the execution creditor consents to the above debt acquisition, the prior notice of withdrawal shall lose its effect.

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's above plaintiff's assertion on the ground that it did not have any evidence to acknowledge that the above plaintiff's withdrawal becomes null and void pursuant to Article 224 (2) of the Commercial Act on June 29, 1985, upon the claim of promissory note amounting to KRW 2,302,876, which the plaintiff had against the non-party corporation's same-sex company, attached the share of the plaintiff's employee to the defendant, and that the plaintiff's withdrawal of the plaintiff's above debt was made prior notice of withdrawal under Article 224 (1) of the Commercial Act on June 29, 1985.

However, according to the facts duly established by the court below, the non-party 1 acquired all the shares and goodwill of the same-sex chain company from the plaintiff, and agreed to take over the obligations of 10,000,000 won to the plaintiff's gold owner, including the above obligations against the non-party 1, and to substitute the payment of the purchase price at the same amount. On October 18, 1985, the non-party 1 came to take over the above obligations to the above gold owner by succession to the above obligations and opened the same-sex chain from October 22, 1986. The non-party 1 received goods from the above company and paid the above obligations on January 21, 1986. Meanwhile, according to the evidence No. 2 and the testimony of the non-party 1, the non-party 2 and the non-party 1, the above contract between the plaintiff and the above non-party 1, the non-party 1, the above non-party 2, the above non-party 1 and the non-party 2, the above business bill.

In light of the above facts, although there is room to view that the above non-party 1, who acquired the plaintiff's business, consented to take over the plaintiff's debt to the above company and continued to supply the goods to the above non-party 1, the court below decided that there was no evidence to acknowledge the consent of the above company after rejecting the part of the non-party 1's testimony, and that there was no evidence to acknowledge the consent of the above company, and that the court below committed an unlawful act that affected the conclusion of the judgment, since it constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)