Korea Technology Finance Corporation (Law Firm Gyeongsan, Attorneys Kim Jong-chul, Counsel for defendant-appellant)

Defendant (Law Firm Assistant, Attorneys Jeong Jin-won, Counsel for defendant-appellant)

June 28, 2019

Incheon District Court Decision 2017Da227577 Decided February 15, 2019

1. Paragraph 1 of the order of the first instance judgment, including a claim added by this court, shall be amended as follows:

A. The Defendant shall pay to the Plaintiff 168,206,281 won and 168,206,064 won among them with 6% interest per annum from March 8, 2013 to September 5, 2019, and 15% interest per annum from the following day to the date of full payment.

B. The plaintiff's remaining main claims and conjunctive claims are all dismissed.

2. All costs of the lawsuit are borne by the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

The judgment of the court of first instance is revoked. The defendant primarily pays to the plaintiff 168,206,281 won and 168,206,064 won per annum from March 8, 2013 to June 5, 2014; 20% per annum from the next day to the day of delivery of a copy of the complaint of this case; and 15% per annum from the next day to the day of full payment (the plaintiff takes the defendant's responsibility for mutual common use; the plaintiff takes the defendant's responsibility for mutual common use; the court of first instance added "claim for Reimbursement" to the plaintiff's claim; the court of first instance added "claim for Payment on behalf of the plaintiff" to the plaintiff. The contract for transfer and takeover between the defendant and the non-party was revoked; the defendant shall pay the plaintiff 168,206,281 won per annum from the next day to the day of full payment; and the defendant shall pay the plaintiff 168,206,281 won per annum from the next day to June 25, 20168.

1. The parties' assertion

A. The plaintiff's assertion

1) The primary cause of the claim

(1) A claim based on a right to indemnity under a credit guarantee contract.

The plaintiff acquired the right to indemnity against the non-party under a credit guarantee contract. The defendant is jointly and severally liable with the non-party as the transferee who belongs to the non-party in accordance with Article 42(1) of the Commercial Act, as the defendant is jointly and severally liable to pay the non-party's indemnity liability against the non-party, since it belongs to the non-party's trade name while taking over the business of ○○○○○ operated by the non-party by the contract for the transfer of the business.

(2) A claim based on the right of statutory subrogation arising from subrogation by the person who has performed the obligation (a claim added at the trial)

The Plaintiff had the right of subrogation due to subrogation against the Nonparty, and the right of subrogation due to subrogation against the said person’s repayment occurred on September 24, 2004 and March 12, 2007, which was the time when the foreign exchange bank extended a loan to the Nonparty. The above right of subrogation had already existed at the time of the transfer of the instant business. As such, the Defendant is jointly and severally liable to pay the Nonparty’s obligation of subrogation against the Nonparty pursuant to Article 42(1) of the Commercial Act.

2) Preliminary Claim Grounds

Since the contract for the transfer of the two businesses of this case is null and void as a false declaration of agreement, the above contract for the transfer of business shall be revoked, and the defendant shall pay the plaintiff the indemnity liability.

B. Defendant’s assertion

The Defendant did not have entered into a business transfer agreement with the Nonparty, and even if having entered into the business transfer agreement, the amount claimed by the Plaintiff cannot be said to have the obligation to pay to the Defendant, and even if the Defendant is a mutually binding business transferee, the Defendant cannot be held liable for the claim for indemnity.

2. cite the judgment of the court of first instance

The plaintiff's grounds for appeal are the same purport as the argument in the first instance except for the grounds for a claim added in the trial (a claim based on the right of statutory subrogation due to subrogation by the person who has performed the obligation to perform the obligation to perform the obligation), and the fact-finding and judgment in the first instance are recognized to be justifiable. Therefore, this court's reasoning concerning the basic facts and the judgment on the grounds for a claim alleged in the first instance court is the same as the judgment of the first instance, and therefore, it shall be accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act

3. Determination as to a claim added at the trial of the court (the time limit for subrogation among the main claims)

A. The occurrence of the right of subrogation by subrogation and the defendant's responsibility

Since a credit guarantee, which is the business of the Credit Guarantee Fund, provides a guarantee for a loan to a financial institution by an enterprise, it constitutes a guaranteed obligation under the Civil Act due to its nature. Accordingly, the Credit Guarantee Fund has a statutory subrogation right to subrogate the creditor as a matter of course due to the repayment of the debt of an enterprise which is a guarantor (see Supreme Court Decision 96Da35774, Dec. 6, 1996, etc.). The right to indemnity and subrogation right are different from the contents of the original, due date, interest, and delay damages, and are different in different rights, and the surety is free to exercise the creditor's right by subrogation, regardless of the exercise of its own own right to indemnity, and in case of subrogation of the creditor, the surety can exercise the right to indemnity and its collateral within the extent of its own right to indemnity under Article 482 (1) of the same Act. Thus, the right to subrogation includes the right to claim reimbursement as a subrogation right of the obligee as well as the obligee (see Supreme Court Decision 97Da15566, May 30, 1997).

On the other hand, since the plaintiff is a guarantor who has entered into a credit guarantee contract with the non-party on the debt of the loan that the non-party owes to the foreign exchange bank, the plaintiff, who is a subrogation, shall naturally acquire the legal subrogation right in subrogation against the non-party, in addition to its own right to reimbursement based on the credit guarantee contract, as a matter of course. Furthermore, since the claim of subrogation due to statutory subrogation is transferred to the non-party, the time when the foreign exchange bank acquired the loan claim against the non-party, i.e., the time when the foreign exchange bank acquired the loan claim against the non-party, i.e., the time when the foreign exchange bank acquired the loan claim against the non-party, and March 12, 207, the time when the transfer of business was made, and therefore, the non-party, who is a transferee of business, shall be jointly and severally liable for the payment of the loan that the non-party owes to the plaintiff (the defendant shall refer to Supreme Court Decision 89Meu1055 Decided Dec. 22, 1989).

B. Scope of the Plaintiff’s right based on subrogation (Defendant’s responsibility)

In a case where a person who has an interest in the repayment of an obligation makes a substitute payment for an obligation, he/she shall, as a matter of course, subrogates an obligee pursuant to Article 481 of the Civil Act at the same time as the right of reimbursement against the obligor. However, since the above right of reimbursement and the right of subrogation are different in terms of the original, maturity, interest, and existence of damages for delay, even if there is an agreement between the subrogated and the obligor on the compensation for delay as to the amount of reimbursement, this agreement is only applicable to cases where the right of subrogation is claimed, and it is not applicable to cases where the right of subrogation is exercised (Supreme Court Decisions 97Da1556 delivered on May 30, 1997; 2005Da32418 delivered on February 26, 2009). Therefore, even if the interest rate under a credit guarantee agreement concluded with the Nonparty was set at 12% per annum from December 1, 2012, the above agreement cannot be applied if it is claimed for the amount of subrogation by subrogation.

C. Sub-decision

If so, the defendant is obligated to pay to the plaintiff 168,206,281 won within the scope of the right of indemnity and 168,206,06,064 won among them, which is the date of subrogation, to the extent that the defendant's dispute over the existence and scope of the obligation of reimbursement is reasonable from March 8, 2013, until September 5, 2019, which is the date of adjudication of the court of this case, 16% per annum under the Commercial Act and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's appeal shall be dismissed as it is without merit. The plaintiff's claim added in this court shall be accepted within the above scope of recognition and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.

Judges Lee Il-woo (Presiding Judge) Kim Pung-chul Kim

(1) According to statutory subrogation, the original claim is transferred to the subrogation right while maintaining its identity (Article 482(1) of the Civil Act), and the original claim is a claim for a loan of a foreign exchange bank which is a merchant, and thus, the statutory interest rate under the Commercial Act should be applied.