수탁보증인의 사전구상권과 민법 제443조 전단의 주채무자의 담보제공청구권 -대법원 2023. 2. 2. 선고 2020다283578 판결의 검토-

Abstract

In the case of the Supreme Court Decision 2020Da283578 delivered on February 2, 2023, the following matters were at issue in the case. First, whether the fiduciary surety could claim damages for future delay by exercising his right of reimbursement against the principal obligor; second, whether the principal obligor's Right to Request Security against the fiduciary surety under Article 443 of the Civil Code has a concurrent performance relationship with the fiduciary surety's right of preliminary reimbursement against the principal obligor; third, whether the fiduciary surety has been judged to be liable to the creditor due to negligence; whether the fiduciary surety’s exercise of the right of preliminary reimbursement against principal obligor violates the principle of good faith; fourth, whether the fiduciary surety's right of preliminary reimbursement against the principal obligor was permissible to set off as an automatic claim. Regarding the second issue, this decision reversed the judgment of the trial court that the principal obligor's obligation to pay the advance indemnity to the fiduciary surety was a pre-performance obligation rather than the fiduciary surety's obligation to provide security to the principal obligor, and expressly held that the two obligations were in a concurrent performance relationship, but made no judgment on the other issues. In Supreme Court Decision 2020Da283578 decided on February 2, 2023, appears to have been because the trial court failed to recognize Defendant's right to refuse performance under Plaintiff's right to provide security, and, therefore there was little need to separately judge the position of the trial court on other issues. However, the first of the aforesaid issues, whether delay damages, are awarded in respect of the fiduciary surety's right of preliminary reimbursement, and how to view the scope of the advance indemnity that the fiduciary surety may claim against the principal obligor, is likely to be a problem in subsequent precedents to be rendered after the Supreme Court Decision 2020Da283578 delivered on February 2, 2023. Accordingly, it is necessary to consider the first issue, along with the validity of the Supreme Court Decision 2020Da283578 delivered on February 2, 2023, that the principal obligor's obligation to pay advance indemnity to the fiduciary surety and the fiduciary surety’s obligation to provide security to the principal obligor is in a simultaneous performance relationship, which also needs to be considered. Therefore, this article focused on the validity of the two issues of the Supreme Court Decision 2020Da2878 delivered on February 2, 2023. However, the first issue was reviewed, other remaining issues were briefly reviewed and the author’s opinions were described. Supreme Court Decision 2020Da283578 decided on February 22, 2023, is meaningful in that it clearly states for the first time that the principal obligor’s obligation to pay the advance indemnity to the fiduciary surety and the fiduciary surety’s obligation to provide security to the principal obligor is in a simultaneous relationship. As a result of this decision, it is expected that various issues surrounding the relationship between the obligation to pay the advance indemnity to the fiduciary surety and the fiduciary surety’s obligation to provide security for the principal obligor will be developed along with in-depth discussions at the academic level.