신용공여를 약정한 공동수급인의 불안의 항변권 행사 - 대상판결 : 대법원 2022. 5. 13. 선고 2019다215791 판결 -

Assurance of performance is the right that the party obligated to first perform in a bilateral contract can refuse the performance of his/her obligation when there is a significant reason why the other party has difficulty performing. The subject judgment is that the plaintiff, a housing cooperative, entered into a construction contract with the defendant corporation for an apartment construction project and agreed to jointly guarantee the PF (Project Financing) loan of 85 billion won that the plaintiff received from a financial institution, but after the PF loan was made through a separate agreement, the plaintiff was to be exempted from joint guarantee liability within 2015 through rapid project promotion. However, the case was that the project promotion became uncertain due to delays in securing ownership of 95% of the land subject to the project, the defendant exercised assurance of performance and refused to provide joint surety. The first trial's ruling acknowledged the defendant's responsibility for default in refusing joint surety, but the second trial and the Supreme Court ruled that even if it was not a bilateral contractual obligation, in the case that the parties were closely connected for the same economic purpose, assurance of performance is accepted as there is a close relation in performance. The court ruled that assurance of performance is recognized when is against the principle of fairness and good faith that the party with a prior performance obligation should perform according to the contract even if there is a change in circumstances, such as the other party's credit instability or deterioration of financial status. In this way, it is considered valid for the Supreme Court to have recognized even assurance of performance where there is a connection with the same economic purpose even if it is an obligation by a separate agreement other than a bilateral contract. However, it is considered necessary to review the case law to present the legal principle of change in circumstances based on the legal basis for recognizing assurance of performance. If the legal basis for assurance of performance is said to be the legal principle of change of circumstances, then assurance of performance cannot be exercised if a circumstance that existed at the time of the conclusion of the contract is confirmed after the conclusion of the contract. In addition, the requirement for assurance of performance in Article 536, Paragraph 2 of our Civil Act is generally and abstractly stipulated as when the other party has a significant reason that he or she has difficulty in performing. Except for the causes of narrow sense such as credit insecurity or deterioration of financial status, it also needs to be applied to the cases of wide sense, such as insufficient supply capacity, uncertainty about the occurrence of hidden defects in the object, and the possibility of export/import ban or outbreak of war. Therefore, it is not the legal principle of change of circumstances, which is a limited position on the basis of assurance of performance, but in a bilateral contract that parties assume an interdependent obligation, even if there is an agreement to assume a prior performance obligation, it can be said that assurance of performance is recognized to perform a collateral function by clearly ensuring the possibility of performance in a bilateral contract with a mutually dependent relationship when a reason for this risk of performance arises. In addition, it is believed that whether the occurrence of a reason for this risk of performance has caused uncertainty in the performance of the counter-performance does not need to be limited to objective circumstances, but can be judged based on the subjective situation of the party with a prior performance obligation.