서면에 의한 보증의사의 표시

Abstract

This paper deals with the interpretation of article 428-2 of Korean Civil Code, especially the meaning of the written express of guarantee intention of that article. This paper analyses about what is qualified as a document containing a guarantee intention, what a guarantee intention is composed of, whether and how much other elements outside the document can be considered to clarify the written guarantee intention, whether and on what condition a debtor or a creditor can sign the written document containing a guarantee intention as an agent of a guarantor, and what the electronic document is, which is not qualified as a valid document of guarantee intention. Even though the article 428-1 section 1 simply provides that “a guarantee shall be valid only if the guarantee intention is to be expressed in a document with either a guarantor’s signature or a guarantor’s name and seal. It is invalid if the guarantee intention is expressed in any electronic form.”, that provision might include many issues mentioned above. To interpret this provision, this paper compares this provision with Swiss’s and German equivalent provision and its interpretation by courts respectively. Then, this paper suggests new interpretation of this article.