[1] Where the purpose or form of the principal obligation is changed without the consent of the guarantor after the formation of the guarantee contract, the scope of the guaranteed obligation

[2] The case reversing the judgment of the court below that the joint guarantor's liability was extinguished in a case where part of the application for transaction was modified favorably to the transaction applicant or the joint guarantor without the involvement of the joint guarantor in a continuous goods supply contract

[1] If the purpose or form of the principal obligation changes after the establishment of a guarantee agreement, and the principal obligation is lost due to such change, the former principal obligation shall be deemed extinguished by light of light. Therefore, the guaranteed obligation shall also be extinguished as a matter of course. However, if the change does not lose substantial identity of the principal obligation but at the same time reduces or reduces the burden of the principal obligation, the guarantor shall be liable for the guarantee according to the contents of the reduced or mitigated principal obligation.

[2] The case reversing the judgment of the court below that the liability of the joint and several surety was extinguished in case where part of the application for transaction was modified favorably to the applicant for transaction or the joint and several surety without the involvement of the joint and several surety in a continuous commodity supply contract

[1] Articles 428 and 430 of the Civil Act / [2] Articles 428 and 430 of the Civil Act

[1] Supreme Court Decision 94Da38250 delivered on February 9, 1996 (Gong1996Sang, 873), Supreme Court Decision 98Da22918, 22925 delivered on March 26, 199 (Gong199Sang, 768), Supreme Court Decision 97Da1013 delivered on January 21, 200 (Gong200Sang, 451)

EL branch Co., Ltd. (Law Firm Hanun, Attorney Kim Si-hwan, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-young, Counsel for defendant-appellant)

Seoul High Court Decision 2000Na16840 delivered on December 8, 2000

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

1. According to the reasoning of the judgment below, the court below decided on September 4, 1989 that the goods supply contract was entered into between the plaintiff and the non-party 1 and the defendant, together with the non-party 2, jointly and severally guaranteed the obligations under the goods supply contract with the plaintiff in Soyang Electricity. The plaintiff continued to engage in transactions with Soyang Electricity. On October 8, 1992, part of the application used at the time of the contract with the domestic special agreement store or agency was pointed out or likely to be pointed out as unfair in unfair terms from the Fair Trade Commission, and decided to renew the transaction application with the previous special agreement store or agency's liability as a new form after the contract was entered into with the plaintiff and the non-party 9 on September 4, 1989. Accordingly, the plaintiff's new contract was concluded with the plaintiff 9 on September 4, 198, which did not lose its validity as a new contract with the non-party 1 and the new form of joint and several surety's signature and seal impression.

2. However, the fact-finding and the judgment of the court below that the existing contract was invalidated by the conclusion of a new contract between the plaintiff and Soyang Electric Co., Ltd. based on the new application form is not easily acceptable in the following respects:

If the purpose or form of the principal obligation is changed from the time when the guarantor was unaware of the principal obligation after the formation of the guarantee agreement, the former principal obligation should be deemed extinguished by light of light if the actual identity of the principal obligation is lost due to such change. Thus, the guaranteed obligation shall be extinguished as a matter of course. However, if the change does not lose substantial identity of the principal obligation but at the same time reduces and reduces the burden of the principal obligation, the guarantor shall be liable for the guarantee according to the contents of the reduced and mitigated principal obligation (see Supreme Court Decision 97Da1013, Jan. 21, 200).

However, according to the process of the preparation of a new application for transaction recognized by the court below, since there is a concern that the plaintiff may receive a recommendation for correction from the Fair Trade Commission as above, the defendant's signature and seal was omitted in the new form of application for transaction since the defendant's location is not grasped in the process of changing the application form for transaction favorable to the applicant for transaction or the joint guarantor, and the defendant's signature and seal was omitted in the new form of application for transaction. In fact, considering the contents of Gap evidence Nos. 1, 24 (each application for transaction), and evidence No. 25-3 (the amended contents) in comparison with the previous contract for the supply of goods, it is recognized that the contents

Therefore, since the preparation of the above new contract is likely to receive a recommendation for correction from the Fair Trade Commission, it is to revise some of the provisions unfavorable to the defendant, etc., who is the defendant, etc., who is the joint and several sureties electricity or joint and several sureties, so it is reasonable to deem that the new contract principal obligation between the plaintiff and Soyang Electric does not lose substantial identity with that of the existing contract. In such a case, there is no reason to deem that the original principal obligation or the guaranteed obligation arising therefrom was extinguished, and the court below rejected the plaintiff's assertion without deciding whether the principal obligation or the guaranteed obligation was lost substantially, and the decision of the court below did not err by misapprehending the rules of evidence, or by misapprehending the legal principles as to the guaranteed obligation, and thus, the ground of appeal pointing this out

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)