applicable law in cases where domestic companies have concluded a guarantee agreement under the New York law of the United States.

Even if a guarantee contract is concluded between companies established under Korean law, the guarantee contract was concluded in accordance with New York law in the New York state, and if foreign companies are also liable for obligations arising out of a contract concluded between the creditor and the creditor in accordance with New York law, the guarantee contract is governed, interpreted, and understood in accordance with New York law, and if the creditor agrees to hold rights and remedies against the guarantor in accordance with the Uniform Commercial Code of the New York state, the governing law shall be the New York state law.

Article 1 and Article 9 of the Conflict of Laws

Seoul Trust Bank, Inc.

Sung-ge Co., Ltd.

Seoul High Court Decision 91Na3937 delivered on September 25, 1992

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

The defendant shall pay to the plaintiff the amount of 1,480,261,557 won and the amount of 6% per annum from August 16, 1990 to the delivery date of the complaint of this case, and 25% per annum from the next day to the full payment date.

The judgment below is revoked and the plaintiff's claim is dismissed.

1. Basic facts

The evidence of No. 1 (Guarantee), No. 2 (Electronic Data on Claim for Principal and Interest of Loans), Gap evidence No. 3 (Electronic Data on Claim for Loan), Gap evidence No. 5-1, 2 (Identification Card), Gap evidence No. 6 (Written Evidence No. 5-2), Gap evidence No. 10 (Certified Card No. 10), Gap evidence No. 11, Gap evidence No. 12-1 through 76, Gap evidence No. 16 (General Security Contract), Gap evidence No. 16 (Notice No. 16 (Written Notice), Gap evidence No. 21-1 through 3 (Written Notice), Gap evidence No. 30 (Written Evidence No. 1), Gap evidence No. 33 (Written Evidence), Gap evidence No. 5-2 (Written Evidence and Translation), Gap evidence No. 7 through 9, Gap evidence No. 10, Gap evidence No. 12-2, and evidence No. 5 of the court below's testimony and evidence No. 10, are contrary to the purport of the evidence No.

가. 원고 은행은 그 산하 뉴욕지점을 통하여 1981.7.8. 미합중국 뉴욕주에 주소를 둔 외국회사인 소외 시카고 쉭 리미티드(CHICAGO CHIC LTD., 이하 소외 회사라고만 한다)와의 사이에 소외 회사가 원고 은행에 대하여 부담하는 모든 대출금, 선급금, 어음인수금 및 기타 여신거래로 인하여 현재 또는 장래에 발생하였거나 발생할 모든 채무에 관하여 원고 은행이 그 지급을 청구하면 이를 즉시 지급하고, 계약상 발생하는 모든 권리, 문제점, 논의 및 논쟁은 뉴욕주법에 따라 결정되며, 원고 은행에 주어진 권한에는 뉴욕주의 통일상법전(Uniform Commercial Code)상 담보권자의 모든 권리와 구제방법이 포함됨을 내용으로 하는 일반담보계약(GENERAL COLLATERAL AGREEMENT)을 체결하였다.

B. On the other hand, on September 1, 1981, the Defendant Company (the first trade name was changed to the present trade name on February 5, 1990) guaranteed that the New York Branch of the Plaintiff Bank pay directly, immediately, absolute, continuous, unconditional, and unlimitedly all obligations owed by the Nonparty Company to the Plaintiff Bank under the said general security contract, and the guarantee is governed, interpreted, and understood in accordance with the New York State law, and the Plaintiff Bank prepares and submits a letter of guarantee (GURTY) that recognizes that it has the rights and remedies against the guarantor under the said general security contract.

C. During the period from November 1, 1985 to February 14, 1986, the non-party company loaned 1,531,973 US dollars in 74 times, as indicated in the separate sheet from the New York branch of the Plaintiff bank, to apply 2% interest rate of 8.5% to the Plaintiff bank standard interest rate of 8.5% to 10% per annum, but the bank did not repay only 8,60 US dollars and did not repay the remainder. As of August 15, 1990, the debt owed by the non-party company to the Plaintiff bank was determined as of August 15, 1990 by the non-party company’s interest rate of 1,523,373 US dollars and interest rate of 541,435.98 US$ as stated in the same document.

2. Judgment on the plaintiff's assertion

As a claim in this case, the Plaintiff sought to pay the Defendant the sum of USD 2,064,808.98 of the above debt amount of Nonparty Company’s non-party company to KRW 2,064,808.98, in Korean Won, with the guarantee liability under the New York State Act, and thus, the

A. Applicable law to the instant case

According to the facts acknowledged above, this case's guarantee contract was concluded in the New York state law in the New York state, and its principal obligation is also borne by the non-party company, which is a foreign company, under a general security contract concluded in accordance with the New York state law with the plaintiff bank. Thus, the law applicable to this case's conflict of interest is first determined. According to Article 9 of the Conflict of Laws Act, the law applicable to this case's establishment and validity of legal act shall be determined by the parties' intent. According to the above, the guarantee of this case's guarantee shall be governed, interpreted, and understood in accordance with the New York state law, and the plaintiff agreed that the guarantee of this case's guarantee shall hold the rights and remedies against the guarantor prior to the Uniform Commercial Code of the New York state, so it is clear that it constitutes the New York state law.

The defendant's letter of guarantee prepared by the defendant is merely a signing of the terms and conditions that the plaintiff created, and even if the provisions concerning governing governing law are included among them, the defendant did not hear any explanation about them, and all the plaintiff and the defendant in this case were incorporated by Korean law, and there is no evidence to acknowledge that the Korean law should be the governing law, in addition to the evidence that the defendant did not know the contents of the letter of guarantee, but rather, according to the contents of the evidence No. 5-1 and No. 2 and No. 6, it seems that the defendant was well aware of the contents of the letter of guarantee. Accordingly, it is difficult to see that the plaintiff bears the duty to explain the contents of the letter of guarantee, and it cannot be excluded from the application of the governing law determined by the contract between the parties only because both the plaintiff and the defendant are companies established by Korean law. Therefore, the above argument by the defendant is without merit.

In addition, according to the above letter of guarantee, the defendant's liability is heavy compared to our legal system, and the law of law is the New York law, and the contents of the above letter of guarantee contain provisions which are unreasonably unfavorable to the customer, and it contains provisions which are difficult for the customer to anticipate in light of various circumstances, such as the type of contract transaction. Therefore, the contents of the above letter of guarantee are null and void as it loses fairness contrary to the principle of trust and good faith. Therefore, the designation of the governing law pursuant to the above letter of guarantee cannot be viewed as null and void against the principle of trust and good faith or public order and good morals, and there is no reason to

B. Establishment of guaranteed liability

On September 1, 1981, the defendant prepared and submitted a guarantee certificate to guarantee that the non-party company will directly, immediately, absolute, continuous, unconditional, and unlimited payment of all obligations owed by the non-party company to the plaintiff bank under the above general security contract, with respect to the New York branch, as seen above. The defendant's above guarantee certificate is submitted in full view of the whole purport of the pleading, and it can be acknowledged that a valid guarantee contract was concluded between the defendant and the plaintiff under the New York law of the United States for obligations under the above general security contract between the non-party company and the plaintiff. Thus, the defendant bears unlimited liability for the non-party company's obligations.

C. Scope of guarantee liability

Therefore, we examine the scope of guarantee liability borne by the defendant. The debt owed by the non-party company to the plaintiff bank as of August 15, 1990 is the sum of US$ 1,523,373 and interest US$ 541,435.98, and damages for delay pursuant to the agreement as of the date of full payment. The defendant is liable to pay the debt owed by the non-party company to the plaintiff. The defendant is liable to pay the whole debt of the non-party company to the plaintiff in the currency of our country. Thus, the plaintiff is liable to pay it to the defendant. The rate of exchange rate as of August 16, 1990 can be recognized as the grounds for 716.90 per US dollars and interest 1,51,435.98, and damages for delay pursuant to the above agreement between the non-party company's debt and the non-party company's debt 2,064,816.98,500 won per annum and 16.9865% per annum per annum.

3. Judgment on the defendant's defense

(a) Defenses to nullify a contract;

The defendant asserted that the contents of the contract of this case set forth in the contract of this case did not violate the principle of trust and good faith as asserted in the dispute over the governing law, and thus has lost fairness, but the defendant's argument is without merit.

In addition, the defendant's defense that the contract of guarantee contract is not subject to the approval of the supervisory authority under the Foreign Exchange Control Act, and therefore, the guarantee submitted by the defendant is invalid. However, even if the contract violates the Foreign Exchange Control Act, it does not affect the judicial effect, so the defendant's defense is without merit.

(b) Reasons for immunity;

Even if the defendant is liable for its guarantee, it guarantees the obligations of the non-party company for the so-called limit transaction that the upper limit of the loans from the plaintiff is set, and the plaintiff and the non-party company are not liable for guaranteeing the obligations arising from their own increase of the limit. However, the loan amount has been increased to 5,300,000 dollars on April 9, 1982 without notifying the plaintiff and the non-party company at will, and it has increased to 5,300,000 dollars on October 1, 1985. In addition, it has increased to 150,000 dollars on February 6, 1986 and 3.20,60 dollars on March 172, 20 of the same year. Since the first loan prior to the above increase was settled in full, the defendant is not liable for paying the above loan amount to the non-party company at will, according to the above recognition facts, the contents of the general security contract between the non-party company and the non-party company or the defendant bears all obligations.

(c) Defenses of extinction of prescription;

In this case, the defendant asserts that the plaintiff's claim against the non-party company is in force against the defendant who is the guarantor except the non-party company that is the principal debtor. However, since the plaintiff's claim against the non-party company is completed five years (six years after the expiration of the prescription period specified in the New York State Act, even if the New York State Act applies) after the expiration of the prescription period from the due date, the non-party company's defense of extinction of prescription has already been used. Thus, according to each evidence employed in determining the establishment of the above, the defendant's guarantee obligation under the case law of New York State, which is the governing law of this case, is separate from the principal obligation and independent of the principal obligation, can be brought against the guarantor regardless of the lawsuit against the principal debtor, and the lawsuit against the guarantor is sufficient when the expiration of the extinctive prescription period for the principal obligation itself. Thus, it cannot be seen that there is no relation with the validity of the guaranteed obligation. Thus, the defendant's defense further without any justifiable reason.

The defendant asserts that the plaintiff's arbitrary liability for guarantee is against the basic spirit of our Civil Code to hold the defendant who is the guarantor at will at the expiration of the extinctive prescription of the claim against the principal obligor, and that it is not permissible. The defendant's argument is ultimately purporting to seek the exclusion of its application on the ground that part of the New York law, which is the governing law of this case, goes against our public order and good morals, and that the content of New York law cannot be said to go against our public order and good morals. Thus, the defendant's argument is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the 1,480,261,57 won and damages for delay at the rate of 6% per annum from August 31, 1991 to the date on which the complaint of this case was served to the defendant from August 16, 1990, and 25% per annum from the next day to the date of full payment (the defendant can apply the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings to the extent that the law of this case is the law of New York of the United States, which is the law of this case, is unreasonable and can be applied to the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings in order to promote legal proceedings, and once a lawsuit is instituted in our court, the plaintiff's claim of this case is justified. Accordingly, the judgment of the court below is just and the defendant's appeal is dismissed as it is so decided as per Disposition.

Judges Lee Jong-young (Presiding Judge)