주채무자의 도산과 보증인의 주채무 소멸시효 항변 -일본에서의 논의를 중심으로

The provisions of the Debtor Rehabilitation and Bankruptcy Act (DRBA), stipulating that even though the principal obligation is discharged or changed, or the juristic personality of the principal obligor is extinguished as a result of insolvency proceedings, the guarantor’s obligation shall not be affected thereby, are common in all kinds of proceedings [(individual) rehabilitation, bankruptcy]. These provisions are proper in terms of the meaning of guaranty system, etc., but disadvantages which the guarantor suffers should be examined. Among these disadvantages, this article will look through whether the guarantor still be able to argue the extinctive prescription of the principal obligation despite the principal obligor’s insolvency. How the nature of the obligation will be changed and whether the prescription is consistently applicable even to the obligation should also be considered. The preexisting studies and precedents of Japan will be main reference of this article. First of all, in individual bankruptcy and discharge proceedings, there are conflicting arguments about the effect of discharge, one arguing turning into natural obligation; another arguing obligation be extinguished. The former is valid when breaking from conventional points of dispute like validity of voluntary reimbursement (or agreement on reimbursement) and considering the particular provisions of DRBA. Next, with respect to the issues such as whether the prescription is applicable to the discharged obligation and whether the guarantor may enter a plea as a defense, in Japan, the following three theories were proposed: prescription shall apply to it; shall not; and regardless of application of prescription, guarantor cannot claim it. The Supreme Court of Japan chose the second and denied the guarantor’s plea. The Supreme Court of Korea also adopted the second. However, I think the first has validity, and the guarantor can claim the prescription of the principal obligation, based on the following factors: unifying application of extinctive prescription to natural obligation; grounds and tendency of extinctive prescription system; construction of the provisions relating to extinctive prescription; balance in a conflict of interests among creditor, obligor and guarantor; difference in legislation between Korea and Japan. In rehabilitation proceedings, obligations are not only discharged, but also changed (in this article, especially partial exemption) by confirmation of plan. Discharge in this proceedings should be understood in the same context as that in the former proceedings, and thus the guarantor can claim the prescription. On the other hand, if the obligation is partially exempted, it should be understood that the obligation is totally lapsed and the prescription cannot be applied to it any longer, and thus the guarantor cannot enter a plea as a defense. The aforementioned arguments regarding the discharged obligation remain in effect even in relation to it in individual rehabilitation proceedings. Lastly, in case of corporate bankruptcy proceedings, unlike other proceedings, the issue is the extinction of the entity (same as the principal obligation) resulting from the termination of the proceedings and the resultant applicability of extinctive prescription to the principal obligor’s obligation. In Japan, the following various arguments are proposed: the entity (obligation) extinguishes and the guarantor cannot argue prescription; the entity (obligation) subsists, and the guarantor is able to claim prescription as ever; the entity does, but the guarantor cannot; and so on. The Supreme Court of Japan also denied the guarantor’s plea in this proceedings by adopting the first argument. In Korea, unlike Japan Bankruptcy Law, there is a relevant provision (Article 548(2) of the DRBA) on this matter, and the first is valid even when based thereon.