[예금][공2003.2.15.(172),488]
[1] Whether the restriction on the act of guaranteeing a merchant bank's guarantee under Article 11 (1) of the Merchant Bank Business Operation Guidelines established by the Minister of Finance and Economy, who is in the position of supervising a merchant bank's business (negative)
[2] Whether the denial of judgment as to the party's assertion clearly rejected is a ground for reversal (negative)
[1] Article 11(1) of the Merchant Banks Act (amended by Act No. 5503, Jan. 13, 1998) (amended by Act No. 5503, Jan. 13, 199), which is established by the Minister of Finance and Economy as a supervisor of business affairs of a merchant bank, limits the act of guarantee by a merchant bank. However, the purport of this provision is that the business affairs of a merchant bank, which is a profit-making corporation, should be subject to the autonomy of the merchant bank. However, the purpose of the provision is to promote the sound management, etc. of a merchant bank by restricting the act of guarantee in certain cases due to the public nature of the merchant bank's business affairs. Therefore, this provision cannot be deemed as the so-called effective regulation,
[2] Even if there is an error in the determination of the party's assertion, it shall not affect the conclusion of the judgment when it is obvious that the assertion is rejected.
[1] Article 21 of the former Merchant Banks Act (amended by Act No. 5503, Jan. 13, 1998); Article 11(1) of the Merchant Banks Business Operation Guidelines (Fund 41212-26) / [2] Articles 208 and 423 of the Civil Procedure Act
[1] Supreme Court Decision 98Da31493 decided Nov. 10, 200 (Gong2001Sang, 1) / [2] Supreme Court Decision 75Da1100 decided Apr. 13, 1976 (Gong1976, 9122) 80Da1073 decided Jun. 9, 1981 (Gong1981, 14052)
The Korea Deposit Insurance Corporation (Law Firm Sejong, Attorney Kim Jong-sik, Counsel for the plaintiff-appellant) of the bankrupt Sam General Finance Corporation and the bankruptcy trustee of the bankrupt Sam General Finance Corporation, the non-party's taking over the lawsuit.
Korea Bank (formerly: Korea Light Bank, Ltd., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2002Na11856 delivered on August 29, 2002
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. Article 11(1) of the former Merchant Banks Act (amended by Act No. 5503, Jan. 13, 1998) (amended by Act No. 5503, Nov. 13, 1998) limits a merchant bank's guarantee act established by the Minister of Finance and Economy as a supervisory position of a merchant bank pursuant to Article 21 of the former Merchant Banks Act (amended by Act No. 412-26, Nov. 10, 2000). However, this provision limits a merchant bank's guarantee act. The purpose of the provision is to ensure a merchant bank's sound management, etc. by limiting a merchant bank's guarantee act in a certain case due to the public nature of a merchant bank's business. Therefore, this provision does not affect the validity even if a guarantee act was conducted in violation of this provision (see Supreme Court Decision 98Da31493, Nov. 10,
In the same purport, the court below's decision which rejected the plaintiff's assertion that the act of guaranteeing the payment of the new financial company against the new financial company's bills (CP) of this case is invalid, is just and acceptable, and there is no violation of law as otherwise alleged in the ground of appeal.
2. According to the records, although the plaintiff asserted that the payment guarantee act of this case in violation of the guidelines for the management of merchant bank business in the statement of grounds for appeal was invalid legal act against good morals and other social order, the court below did not make any judgment on this point. However, there is no ground for appeal that the plaintiff's assertion is without merit since there is no evidence supporting that the payment guarantee act of this case was conducted in collusion between the Korea General Finance Corporation and the defendant. Thus, even if there is an error of omission of judgment as to the plaintiff's assertion, it does not affect the conclusion of the judgment (see Supreme Court Decision 75Da1100 delivered on April 13, 1976, Supreme Court Decision 80Da1073 delivered on June 9, 1981, etc.). Thus, the omission of judgment of the court below did not affect the conclusion of the judgment, and therefore, the allegation in the grounds for appeal on this point is not acceptable.
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)