보증계약상 채권자의 정보제공의무

A Obligee s Duty to Disclose Material Information in the Contract of Suretyship.

The surety is entitled to suretyship defenses as defined in section 124 in the Restatement of Security (second) published by the American Law Institute(ALI) which distinguishes between where before the surety has undertaken and where, after formation of contract of suretyship. Subdivision (1) of section 124 prescribes Where before the surety has undertaken his obligation the creditor knows facts unknown to the surety that materially increase the risk beyond that which the creditor has reason to believe the surety intends to assume, and the creditor also has reason to believe that these facts are unknown to the surety and has a reasonable opportunity to communicate them to the surety, failure of the creditor to notify the surety of such facts is a defense to the surety. On the other hand, subdivision (2) of section 124 prescribes Where, after formation of contract of suretyship, the creditor discovers facts unknown to the surety which would give the surety the privilege of terminating his obligation to the creditor as to liability for subsequent defaults, and the creditor has reason to believe these facts are unknown to the surety and has a reasonable opportunity to communicate them to the surety without violation of a confidential duty, the creditor has a duty to notify the surety, and breach of this duty is a defense to the surety except in respect of his liability for defaults which have occurred before such disclosure should have been made. There is recognizing the duties of the obligee to the surety which give a proper information of the real state of finance and economic situation of principal, because there is unbalance and unequality of information between the parties. It has recognize the necessity that is the duty to perform according to the requirement of good faith between the parties before formation of contract because there is unbalance of social and economic status. It should be recognized that the duty of the obligee to disclose material information because there is information gap between the obligee and the surety. Although there is increasing the dispute over suretyship because of the recognition of the duty to disclose material information, it is desirable of the recognition of the duty to disclose material information in future-oriented view and improve the unreasonable customs of suretyship. It is adopt the duty to disclose material information in this tentative draft pursuant to section 8 of the protection law of surety which does not expressly provide in tentative draft in 2004. It is added subsection 2 of section 436 in tentative draft in 2004, Instead it dose not prescribe the obligee s duty to disclose information in separate section. The duty of notification is recognized only after contract of suretyship is made although the duty to disclose information is distinguished such as section 124 of the Restatement of security (second) in U.S.A between before and after contract of suretyship is made. This Tentative draft does not recognize the duty to disclose information as defined in subsection 3 although it does recognize the duty of notification about any critical situation arises with respect to the secured obligation which may lead to demand upon the surety if the surety request. What follows is the tentative draft which the fifth committee prepared: Section 436(2) [the obligee s duty to disclose information and to notify] ① The obligee must notify the surety as soon as any critical situation arises with respect to the secured obligation upon which the obligee knows and holds. It is same as when the contract of suretyship is renewal. ② The obligee must notify without undue delay the surety in case of a non-performance by or inability to pay of the debtor, the secured amounts of the principal obligati