[1] Whether a debtor and an underwriter are jointly and severally liable in a joint and several liability assumption in a joint and several liability assumption (affirmative in principle), and whether a non-joint and several liability relationship is not established in a case where an underwriter does not receive a request from an obligor

[2] Criteria for determining the share of the obligor jointly and severally liable for repayment and other joint discharge at his own expense, which can be claimed to the other obligor

[1] Articles 413 and 539 of the Civil Act / [2] Articles 413, 424, and 425 of the Civil Act

[1] [2] Supreme Court Decision 2012Da97420, 97437 decided August 20, 2014 (Gong2014Ha, 1791) / [1] Supreme Court Decision 2009Da32409 decided August 20, 2009 (Gong2009Ha, 1540)

Lot Construction Co., Ltd. (Law Firm Sejong, Attorneys Exclusive-hee et al., Counsel for the plaintiff-appellant)

Korea Land Trust Co., Ltd. (Law Firm current, Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

Nasung Co., Ltd. (Attorneys Jeon Sung-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na58953, 58960 decided May 23, 2013

The appeal is dismissed. The costs of appeal are assessed against the independent party intervenor.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Supreme Court Decision 2006Da80322, 80339 Decided June 15, 2007, which is cited by an independent party intervenor (hereinafter “participating”), held that the above Supreme Court precedents cannot be applied to the case falling under the case where “an independent party intervenor would consolidate claims that do not meet the requirements for intervention while participating in an independent party,” and thus, it is not allowed to add claims that do not meet the requirements for intervention of an independent party to the case where even one of the claims is not compatible with the intervenor’s assertion.” Thus, the court below held that it is not allowed to add claims that do not meet the requirements for intervention of an independent party to the case where “an independent party intervenor will consolidate claims that do not meet the requirements for intervention of an independent party.”

In light of the relevant legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the requirements for intervention in the right holder as otherwise alleged in the ground of

2. Regarding ground of appeal No. 2

Since it is very rare to accept the obligation through a contract with the obligee without the obligee’s request in the case of the assumption of the obligation jointly and severally liable obligation, the obligor and the underwriter are generally and severally liable for a joint and several liability relationship with the obligee, and if there is no subjective joint and several liability relationship due to the obligor’s request by the underwriter (see Supreme Court Decision 2009Da32409, Aug. 20, 2009, etc.). In addition, when one of the obligors jointly and severally liable has made repayment or other joint and several liability due to his own withdrawal, he may exercise the right to demand reimbursement for the portion to be borne by the other jointly and severally liable, but the share to be borne is presumed to be equal, or if there is a special agreement between the obligors and jointly liable or if the ratio of each obligor’s profit to be borne by the obligor is different in relation to

According to the reasoning of the judgment below and the records, as a contractor, the plaintiff constructed condominiums and ancillary facilities on the project site of this case as an executor, and entered into the business agreement of this case for the purpose of selling the building site and building with trust property; ② the business agreement of this case was concluded by the participant to raise the total amount of the project funds, including land and construction expenses; and ③ the participant bears the obligation to immediately repay the principal and interest of the loan and other operating expenses under the above loan agreement; ③ the plaintiff, as a matter of principle, bears the obligation of completing and selling the liability under the business agreement and loan agreement of this case; ④ the loan of this case was loaned to the intervenor from March 28, 2008 to January 28, 2009; ⑤ the plaintiff did not pay interest accrued from the commencement of the business of this case to the lender on June 29, 2009; ⑤ the plaintiff did not pay the interest accrued from the commencement of the business of this case to the lender on June 1, 2009.

In light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff, pursuant to the instant business agreement and loan agreement, concurrently assumed the Intervenor’s obligation of the instant loan, and the Plaintiff and the Intervenor jointly assumed the Intervenor’s obligation of the instant loan, and thus, became jointly and severally liable to the Plaintiff and the Intervenor. In light of the business structure and the content of the instant loan agreement, etc., it is reasonable to deem that the Intervenor agreed to ultimately bear the instant loan obligation between the Plaintiff and the Intervenor, or that the Intervenor used the entire amount of the instant loan as the project

Therefore, the court below's conclusion that the plaintiff can exercise the right to indemnity against the intervenor as to the whole repayment amount of the loan of this case is just, and there is no error in the misapprehension of legal principles as to the legal nature of bearing the obligation of this case and the internal apportionment ratio, or omission of judgment, contrary to what is alleged in the ground of appeal.

3. As to grounds of appeal Nos. 3 and 4

After finding the facts as stated in its reasoning based on the adopted evidence, the court below determined that it is reasonable to assess the value of the right to benefit in the project of this case based on the value of the project site and the site for collateral appraised at the time of the commencement of the project, based on the premise that the project is continuously promoted, considering the fact that the plaintiff was not an early commencement of the project at the time of the exercise of the pledge right, and that the plaintiff's exercise of the right to benefit in the project of this case cannot be viewed as the plaintiff's exercise the right to benefit in this case's real estate or the right to benefit in this case's exercise of the right to benefit in this case's subrogation for the purpose of taking the business of this case's business of this case or getting exempted from the obligation to sell the real estate by subrogation

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to the burden of proof of causes attributable to the violation of the duty of completion of liability, as otherwise alleged in the ground of appeal.

4. As to the fifth ground for appeal

In light of the fact that the right to benefit under the instant trust agreement is “the right to receive money generated from the trust real estate and its operating profit and the equivalent right,” and is distinct from the right to claim for ownership transfer registration of the instant real estate, the lower court determined that the instant right to claim ownership transfer cannot be deemed null and void, since it is difficult to view that the said right to claim ownership transfer is included in the right to benefit under the instant trust agreement, which is the object of the instant right

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the right to benefit under the trust contract

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)