[2] In a case where Company A created a mortgage on the real estate owned by Company B and obtained a loan from Company B, and thereafter made a credit guarantee agreement with the Credit Guarantee Fund, and offered the loan to Company B as security, and Company A commenced rehabilitation procedures with respect to Company B, and the Credit Guarantee Fund concluded a contract for partial transfer of a right to collateral security to Company B with Company B upon the commencement of rehabilitation procedures with respect to Company B, and upon the commencement of a credit guarantee agreement with Company B, the Credit Guarantee Fund partially repaid the loan obligations from the bank under the credit guarantee agreement, and Company B entered into a contract for partial transfer of a right to collateral security that partially transferred the right to collateral security from the bank, the remaining claim as of the date of allocation of dividends should be appropriated in the first order to cover the difference between the overdue loan and the overdue loan accrued until the date of the discharge of the guaranteed obligation, the case holding that the judgment below erred in the misapprehension of legal principles as to the overdue interest which was determined at the time of partial transfer of the right to collateral security agreement

[2] In a case where: (a) Company A created a mortgage on real estate owned by Company B; (b) obtained a loan from the bank; (c) provided Company B as collateral with credit guarantee agreement; (d) Company A commenced rehabilitation procedures with respect to Company B; and (c) concluded a contract for partial transfer of a right to collateral security to Company B with the bank according to a credit guarantee agreement; (d) Company B’s payment of part of the loan obligations from the bank; and (e) Company B should first appropriate the remaining claim as of the date of allocation of dividends when the contract is implemented in order to cover the difference between the creditors’ interest and the agreed interest accrued until the date of the performance of the guaranteed obligation; and (e) Company B’s amendment of the rehabilitation plan to the effect that the agreement would have been deemed to have been null and void by taking into account the circumstances that the agreement would have already been concluded at least one of the parties’ interest and interest accrued to Company A, which would have not been subject to prior to the amendment of the rehabilitation plan to the effect that the agreement would have been deemed to have been null and void by the agreement.

1. Plaintiff’s ground of appeal as to the agreement No. 2

A. In the event that a dispute over the interpretation of a contract between the parties arises and the interpretation of the intent of the parties expressed in the disposition document becomes an issue, the content of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. shall be comprehensively considered, and it shall be reasonably interpreted in accordance with logical and empirical rules (see Supreme Court Decision 2014Da1976, 19783, Feb. 15,

B. According to the reasoning of the lower judgment, the following facts are revealed.

(1) On March 20, 2002, the Daegwon Co., Ltd. (hereinafter referred to as the “Magdonggdong District”) established the instant collateral security (right to collateral security) with respect to real estate owned by Hana Bank Co., Ltd. (Seoul Bank Co., Ltd., Ltd., Ltd., prior to the mutual change; hereinafter referred to as “ Han Bank”), and obtained loans from Hana Bank after establishing the instant collateral security (right to collateral security). On September 26, 2006, the Daegdong District Co., Ltd. entered into a credit guarantee agreement with the Plaintiff two times on the guarantee amount of KRW 480,00,000 and KRW 160,000,000 as collateral from the Plaintiff.

(2) On October 26, 2009, the rehabilitation procedure was initiated against the Daegdong District Office, when it was unable to repay loans, etc. to Handong District Office.

(3) On December 24, 2009, the Plaintiff repaid 654,496,000 won out of the loans owed by the Daegwon under a credit guarantee agreement, and entered into a contract for partial transfer of the right to collateral security (hereinafter “instant contract for partial transfer of collateral security”). Article 2(1) of the contract provides for the order of appropriation of dividends in the event the right to collateral security is exercised by Han Bank. Article 2(1) of the contract provides for the order of appropriation of dividends, and the remaining claims (including attempted claims related to loans executed in excess of the estimated amount of loan by the rate of guarantee) as of the date of the distribution except for the non-loan loans extended by the transferor (creditor). The contract provides that the overdue interest and the agreed amount arising from the date of the performance of the guaranteed obligation of the guaranteed loan shall be appropriated in the second order (hereinafter “Agreement 1” and “Agreement 2”).

(4) On March 4, 2010, under the Asset-Backed Securitization Act, Han Bank transferred all of the loans and collateral security-related rights to the Federation Asset Management Corporation, and the Defendant acquired the status of the transferee of the Federation Asset Management Corporation on March 30, 2010.

(5) The rehabilitation plan was approved on August 8, 201 in the course of the rehabilitation procedure for the Daegwon. The plan is determined to be paid to the Plaintiff and the Defendant at the end of 2012 as rehabilitation security right, (1) the entire principal of the Si which was the date of commencement by the end of 2012, (2) the entire principal of the Si which was the date of commencement by the end of 2011, (3) the interest rate of 7.5% per annum from the beginning of 2009 to the end of 2011, and (2) the interest interest accrued after the commencement by the end of 201.

(6) On October 16, 2013, a public sale procedure was conducted with respect to the real estate on which the instant right to collateral security was created, and on November 13, 2013, the Korea Asset Management Corporation prepared a distribution statement stating that the entire amount of KRW 2,645,71,310 was distributed to the Defendant, deducting senior delinquent expenses from the total sum of deposit interest and sales proceeds.

C. After recognizing the above facts, the lower court interpreted that the difference between overdue interests accrued until the date when the contract was concluded and the agreed interest interest accrued and the agreed interest amount, which are stipulated as the bonds to be appropriated in the second order from the 2nd order under the 2nd order.

D. However, in light of the aforementioned legal principles, if the Plaintiff and the Defendant comprehensively examined the motive, background, objective to be achieved through the agreement, intent of the parties, etc., in light of the aforementioned factors, it is reasonable to interpret the “interest on delay” of the 2nd agreement by reflecting the content of the rehabilitation plan, insofar as the rehabilitation plan for the 2nd group has been authorized. Specific reasons are as follows.

(1) The Plaintiff and Han Bank stated in the 2nd agreement that “the difference between the overdue interest and the agreed interest accrued from the date on which the guaranteed obligation is performed.” The key issue is what is the meaning of “interest in delay” is as follows: (a) there is no dispute between the parties as to the meaning of “guaranteed loan” and “a agreed interest”; and (b) there is no specific period for the completion of the interest as “the date on

(2) Generally, the term “physical interest” refers to the damages for delay calculated by applying the overdue interest rate of a financial institution. If the term “physical interest” in subparagraph 2 of the agreement is deemed only to the meaning of the word, there is room to interpret it as above.

However, the following circumstances, upon which the instant contract for partial transfer of a right to collateral security was concluded, need to be considered in determining the meaning of the said agreement. The agreement for partial transfer of a right to collateral security was concluded by the Plaintiff and the Plaintiff and the Han Bank shared the right to collateral security established on the real estate owned by the Daedong Team as a result of the Plaintiff’s guarantee of only a part of the loans owed by the Handong Team to one Bank. Accordingly, the agreement was concluded with the Plaintiff and Han Bank to determine the priority order of the claims to be appropriated when the right to collateral security is exercised in the future. However, upon the conclusion of the agreement, the said agreement had already been initiated for rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”) with regard to the debtor Jungdong Group. At the commencement of rehabilitation procedures, two cases are possible only where the rehabilitation plan is approved or the rehabilitation procedure is abolished, and if the rehabilitation plan is authorized, the content of the claims against the Daedong Group of the Plaintiff and the Han Bank is substantially modified. Both the Plaintiff and the Han Bank, as a credit guarantee institution and financial institution with expertise knowledge.

Therefore, when interpreting the meaning of “the overdue interest” of the 2nd arrangement, it should be interpreted not only by the language and text thereof, but also by comprehensively taking into account the motive and background of concluding a contract for partial transfer of a right to collateral security, the purpose to be achieved through this,

(3) If the Plaintiff and Han Bank agreed as above by deeming the “interest on delay” under the 2nd agreement as the damages for delay at the original bank’s interest rate, it can be calculated by fully specifying the difference between the original overdue interest and the agreed interest at the time of partial transfer of collateral security. However, the Plaintiff and Han Bank did not do so. Article 1 of the same agreement provides that “654,496,000 won” shall be deemed as “654,496,000 won.”

Since the time when the plaintiff and Han Bank entered into a contract for partial transfer of collateral security has already started the rehabilitation procedure for the Daedonggwon, it is reasonable to consider that the content of the claims of the plaintiff and Han Bank, such as overdue interest rate, can be changed if the rehabilitation plan for the Daegdonggwon is approved in the future, or that at least it would not exclude the effect of change of rights that will occur when the rehabilitation plan is approved in the future.

(4) If the meaning of the damages for delay calculated by applying the overdue interest rate of one bank as stipulated in the agreement No. 2, the Defendant may assert that the Plaintiff would preferentially recover the amount corresponding to the interest from the instant distribution amount in accordance with the agreement No. 2, and the Plaintiff would suffer disadvantage that the amount recoverable from the instant distribution amount reduces.

The agreement that the creditors exercise their rights prior to the alteration according to the rehabilitation plan only among the creditors, regardless of the exercise of their rights against the debtor, is permissible pursuant to the principle of private autonomy and in particular, freedom of contract. In other words, the Plaintiff, one party to the agreement, who is one of the parties to the agreement, may voluntarily assume disadvantage and allow the Defendant, the other party to the agreement, to preferentially cover more than the rights prescribed in the rehabilitation plan in the proceeds from the sale of collateral. However, in order to recognize that such agreement was concluded among the creditors, the intent of the parties to the agreement should be clearly expressed to exclude the effect of alteration of rights as prescribed in Article 252(1) of the Debtor Rehabilitation

(5) In short, in full view of the motive and background leading up to the agreement between the parties, the purpose to be achieved through the agreement, the intent of the parties, etc., the parties to the agreement may be deemed to have agreed to interpret the “physical interest” of subparagraph 2 by reflecting the content of the rehabilitation plan when the rehabilitation plan regarding the Daedonggll is authorized. This interpretation is consistent with the interpretation of the agreement regarding the agreement under subparagraph 1 of the agreement under the same collective security transfer agreement.

E. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the interpretation of a contract, thereby adversely affecting the conclusion of the judgment, on the ground that the lower court determined that the “interest” under the agreement No. 2 was overdue interest already determined and conclusive at the time of the partial transfer of collateral security.

2. Plaintiff 1’s ground of appeal and Defendant’s ground of appeal as to the agreement

The lower court determined that the remaining claim as of the date of distribution other than the guaranteed loan as of the date of the date of distribution means the remaining claim as of the date of distribution changed in accordance with the rehabilitation plan concerning the debtor, and that the sum of the principal, interest prior to commencement, interest prior to commencement, and overdue interest for the defendant's non-guaranteed loan as prescribed in the rehabilitation plan according to the standards prescribed in the rehabilitation plan, and KRW 2,331,372,528, and the sum of the principal, interest prior to commencement, and interest prior to commencement and overdue interest for the defendant's non-guaranteed loan, and KRW 2,343,90,718, which are the sum of the provisional payment amount paid by the defendant and KRW 12,53,190, should be appropriated in the first priority order. Examining the relevant legal principles and records, the lower court did not err in its

3. Conclusion

The Plaintiff’s ground of appeal as to the agreement under subparagraph 2 is with merit, and the part of the agreement under subparagraph 2 against the Plaintiff is reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s remaining grounds of appeal and the Defendant’s appeal are dismissed as it is without merit. It is so

Justices Min You-sook (Presiding Justice)