수탁보증인의 담보제공의무와 주채무자의 사전구상의무의 관계에 대한 고찰

Abstract

In discussions on the right to advance reimbursement system of the guarantor under the Korean Civil Act, it is a question of how to interpret the relationship between the duty of the trust surety to provide security and the duty of advance reimbursement of the principal obligor under the former part of Article 443 of the Korean Civil Act, i.d. whether the right of the principal obligor to claim the provision of security is recognized as the right of repudiation to pay the advance reimbursement to the principal obligor. The Korean academic opinion on repudiation is divided between the affirmative and negative theories, and the Supreme Court has never taken an explicit position in precedents on the issue. In addition, related to this, there are questions such as whether there are any damages for delay on the trust surety’s right to advance reimbursement, the scope of the amount for advance reimbursement that the trust surety may claim against the principal obligor, and the form of text of judgment based on how the relationship between the trust surety’s duty to provide security and the duty of advance reimbursement by the principal obligor is considered. This paper is organized as follows to address the above issues. First of all, in the Japanese Civil Act, which seems to have a direct impact on the provisions on the right of advance reimbursement of the guarantor under the Civil Act of Korea and also has almost the same provisions as Korea, it examines the trend of Japanese theories and precedents on the relationship between the duty of the trust surety to provide security and the duty of advance reimbursement of the principal obligor as stipulated in Article 461 (1) and related issues (e.g. whether there are any damages for delay on the trust surety’s right to advance reimbursement, the scope of the amount for advance reimbursement that the trust surety may claim against the principal obligor, and the form of text of judgment based on how the relationship between the trust surety’s duty to provide security and the duty of advance reimbursement by the principal obligor is considered). Next, it examined the discussion on this issue in Korea, and last, presented the author’s thoughts based on the discussion in Japan and Korea, which can be summarized as follows. First, concerning the relationship between the duty of the trust surety to provide security and the duty of advance reimbursement of the principal obligor, the theories conflict with the theory against repudiation (prior performance theory) and the theory in favor of repudiation (concurrent performance theory), and both opinions are reasonable. However, considering the following points, the theory in favor of repudiation (concurrent performance theory) was considered more valid. ① According to the text of Article 443 of the Civil Act, it is not impossible to interpret as the theory of concurrent performance, and rather, the theory of concurrent performance and the theory of prior performance should be seen as a matter of choosing which interests of the trust surety and the principal obligor are to be protected more. ② Comprehensive analysis of precedents makes it clear that the principal obligor may refuse to fulfill the guarantor’s request for advance reimbursement with the right to claim for the provision of security stipulated in the former part of Article 443 of the Civil Act. ③ The interpretation that the repudiation is possible for claim advance reimbursement of the trust surety, by the right to claim the provision of security under the former part of Article 443 of the Civil Act, cannot be deemed as excessively protecting the principal obligor or undermining the interests of the trust surety. ④ There is no necessity to interpret the right to claim for exemption from liability of the principal obligor in connection with the right to claim the provision of security as stipulated in the former part of Article 443 of the Civil Act. Further, in this sense, there is no need to interpret that the two rights thereof arise simultaneously. ⑤ According to the prior performance theory, there is a risk that the utility of the right of the principal obligor to claim the provision of security as stipulated in the former part of Article 443 of the Civil Act will be practically lost. Therefore, it is more reasonable to follow the concurrent performance theory to prevent such danger. Second, it dealt with the occurrence of damages for delay to right to advance reimbursement and the scope of the amount for advance reimbursement. Regarding the occurrence of damages for delay to right to advance reimbursement of the trust surety, the issue may be whether there is a change in the conclusion according to the concurrent performance theory (in favor of repudiation) or the prior performance theory (against repudiation). In this regard, both the prior performance theory and the concurrent performance theory, including the judicial precedents, are aware that the scope of the amount for advance reimbursement should be the full amount of the obligation that the guarantor has determined at the time of the claim for reimbursement. In other words, they are sharing the awareness that the right to advance reimbursement is claiming the provision of funds for future repayment, and thus, the trust surety may not claim the damages for delay for the amount that has not yet been paid. Therefore, between the concurrent performance theory (in favor of the repudiation) or the prior performance theory (against repudiation), neither does cause any damages for delay to the trust surety’s right to advance reimbursement. Third, it may be a problem how to view the scope of the amount for advance reimbursement that the trust surety may claim against the principal obligor. Regarding this, the author believes it should be considered that the main legislative purpose of Article 443 of the Civil Act is the protection of the principal obligor when determining the scope of damages for the delay on the trust surety’s right to advance reimbursement. And based on this point of view, the author finds reasonable the theory’s position on the Supreme Court decision of July 9, 2004, which is interpreting the “interest and damages for delay already incurred until the respond to advance reimbursement” of the judgment as limited to “interest or damages for delay on the original principal debt that has already occurred at a specific point in time when the trust surety exercises the right to advance reimbursement.” Therefore, it is reasonable to interpret that the scope of the trust surety’s right to advance reimbursement does not include the damages for delay for the principal debt that will occur until the principal obligor pays off all of the advance reimbursement. Fourth, if Korean precedent adopts the concurrent performance theory in the future, the question may arise as to what form the text of judgment should take. In this regard, I believe that since the situation in Korea has not yet been created to discuss this issue, the attitude of the Japanese lower court precedents under the concurrent performance theory can be applied for the time being. But it is necessary to closely monitor the further discussion in Korea and Japan on this issue.