2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 8,00,000 won with 7.2% per annum from December 16, 2010 to April 8, 2011; 16.2% per annum from the next day to April 15, 2011; 17.2% per annum from the next day to June 15, 201; 18.2% per annum from the next day to the delivery date of the complaint of this case; and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance that orders payment under the following shall be revoked. The defendant shall pay to the plaintiff 4,00,000,000 won and 7.2% per annum from December 16, 201 to April 8, 2011; 16.2% per annum from the next day to April 15, 2011; 17.2% per annum from the next day to June 15, 201; 18.2% per annum from the next day to the delivery date of the complaint of this case; and 20% per annum from the next day to the day of complete payment.

Defendant: as set forth in paragraph (1).

A. Korea Heavy Industries Co., Ltd (formerly, Korea Heavy Industries Co., Ltd. and Korea Heavy Industries Co., Ltd. did not distinguish between the two before the alteration; hereinafter, the Korea Heavy Industries Co., Ltd.) was proceeding with the construction of the shipbuilding yard in Jindo-gun (hereinafter, “the shipbuilding yard in this case”). However, Nonparty 1 (the representative director of the Korea Heavy Industries Co., Ltd. Nonparty 2) was designated and contracted from July 31, 2007 to December 31, 2008 with regard to the contract amount of civil engineering works and construction works, etc. among the shipbuilding construction works in this case, to the Jinjin Construction Co., Ltd. (hereinafter, Ltd., the representative director of the Korea Heavy Industries) who is the representative director.

B. The Korea Heavy Industries entered into a credit guarantee agreement with the Defendant on December 27, 2007 in order to provide a security for KRW 8,000,000,000, which will be loaned from the Plaintiff in connection with the construction of the shipbuilding yard in this case (hereinafter “the instant credit guarantee agreement”), and entered into a credit guarantee agreement with the Defendant on December 27, 2007 (hereinafter “the instant credit guarantee agreement”). On the back of the instant credit guarantee agreement, the following terms and conditions of guarantee (hereinafter “the instant collateral acquisition agreement”).

1. Table 1. In the case of the shipbuilding site of this case, 5.0 billion won or more and the first priority mortgage was established on the land (the details of its own tax are omitted) of the shipbuilding site of this case, and the loan under this guarantee will be handled pursuant to this letter; 2. Construction of the factory building to be built on the shipbuilding site of this case [the four cases of the factory building of this case [the 10.0 billion won or more, 2.0 billion won or more, 2. 4 cases of the factory building to be built on the shipbuilding site of this case, 2.00 billion won or more, and the full termination of this guarantee by acquiring the first additional security.

C. On December 28, 2007, the Plaintiff provided the credit guarantee certificate of this case to Korea Heavy Industries as collateral, with a maturity of 8,000,000,000 won in connection with the construction work of the shipbuilding yard of this case at the rate of 8.29% per annum, 8.3% per annum, and 19% per annum, and the loan of this case at the rate of 19% per annum (hereinafter “the loan of this case”). According to the delegation by Korea Heavy Industries, the loan of this case was deposited into the deposit account of the Jinjin Construction contracted for civil works and construction work among the construction works of the shipbuilding yard of this case.

D. On August 29, 2008, the expiration date of the loan term of this case, the Plaintiff and Korea Heavy Industries extended the loan term to July 15, 2009 by entering into an additional loan transaction agreement on the loan of this case, and thereafter extended the loan term on several occasions even thereafter, on April 8, 201. The final loan transaction agreement provides that the interest rate shall be 7.2% in the additional loan transaction agreement, and the compensation rate for delay shall be applied differently by the agreed interest rate (the additional interest rate of less than one month from the date of delinquency: 9% per annum, 10% per annum, and 11% per annum if the delay period is more than three months: 3 months, 11% per annum).

E. As above, the Defendant changed the guarantee term of the instant credit guarantee in accordance with the extended loan term whenever the loan term is extended, and sent the notice of change in the guarantee term to the Korea Heavy Industries.

F. After December 15, 2010, Korea Heavy Industries did not pay interest on the instant loans, and on April 8, 2011, it did not refund the loans despite the expiration of the term of the instant loan, and the Plaintiff filed a claim against the Defendant to pay the Plaintiff the deposit in accordance with the instant credit guarantee.

G. After examining the above claim for the payment of the deposit, the Defendant rejected the Plaintiff’s claim for the payment of the deposit on November 18, 201 (the Defendant violated the standards for exemption under the credit guarantee terms and conditions and the rules on credit guarantee established by the Bank of Korea due to the failure of the Plaintiff to implement the loan in response to a legitimate enhancement even though the loan was a facility loan).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 15, Eul evidence Nos. 4, 5, 9, 14, and 19 (including each number; hereinafter the same shall apply), non-party 1's testimony and the purport of the whole pleadings

2. Determination on the cause of the claim

According to the above facts, pursuant to the credit guarantee agreement of this case, the defendant is obligated to pay the plaintiff the guaranteed amount of the loan of this case amount of KRW 8,000,000,000 and interest or delay damages.

3. Determination as to the defendant's assertion

A. The assertion

1) Defendant

The loan of this case is a facility loan, and the credit guarantee of this case is stipulated in the credit guarantee agreement of this case, which is the special terms and conditions for the full termination of the contract, and the defendant's credit guarantee terms and conditions (the certificate No. B. 1; hereinafter referred to as the "credit guarantee terms and conditions of this case") stipulate that the financial institution shall not be held liable for all or part of the liability for the guarantee when it violates the above special terms and conditions. The plaintiff violated the above duty of care by paying the loan in full and paying the loan of this case in response to the legitimate weather and response of the loan of this case in accordance with Article 4 (2) of the Enforcement Rule of the Credit Guarantee by the Bank of Korea. Thus, the defendant's credit guarantee liability of this case did not occur from the beginning, or it was exempted in accordance with the above credit guarantee terms and conditions and the exemption criteria (or the plaintiff is not liable for the credit guarantee of this case

2) The Intervenor joining the Defendant (hereinafter referred to as the Intervenor)

Around September 2005, an intervenor entered into an agreement with the defendant on the operation of an electronic guarantee, etc., and the parties agreed not to claim the absence of a standardized contract, the non-acceptance of a standardized contract, the failure of a standardized contract, the site of the terms and conditions, etc. as to the electronic guarantee certificate which was sent and received normally under the above agreement. The plaintiff sent the above agreement and its credit operation manual, etc. to the plaintiff. Since it was ratified by the agreement of this case ( even if it is not recognized as ratification, it is commercial practice to apply the special exemption clause, such as the exemption clause of the credit guarantee contract of this case, if the special agreement on the acquisition of a security is entered in the credit guarantee certificate of this case).

B. Whether to lend facility funds

1) In relation to the application of the exemption clause of the instant credit guarantee agreement, we examine whether the instant loan is a facility loan.

According to Gap evidence Nos. 2 and 9 through 16, and the whole pleadings, the letter of general credit loan prepared by the plaintiff for approval on the loan of this case contains a statement that the loan of this case is "general fund loan of this case". ② The letter of agreement prepared by the plaintiff and Korea Heavy Industries on October 16, 2009 and March 8, 2010 stated that the additional agreement on mutual loan of this case is an additional agreement on mutual loan of this case, and the details of loan of this case are not stated in the loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan of this case's loan of this case's general loan of this case's loan of this case's loan.

2) We examine the scope of the facility subject to the instant loan.

According to the delegation by the Heavy Industries, the loan of this case was deposited into the deposit account of the actual construction works contracted for civil engineering works and construction works among the shipbuilding works of this case. According to the records in Gap evidence 17, Eul evidence 3, and Eul evidence 11, and the whole pleadings, the construction completion date of the plaintiff's loan of this case is limited to the contract amount of 19,240,000 won, the contract amount of the construction work of this case is 19,240,000 won, the contract date of the construction work of this case is 30,000,000 won, and the contract date of the construction work of this case is 30,000,000,000 won and 30,000,000 won and 20,000,000 won and 30,000,000,000 won and 30,000,000,00 won and 20,07,00,00.

3) Furthermore, we examine what is the facilities subject to the instant contract.

The above facts are established at the office building, material storage, blosting shop, and painting shop shop after completion of the construction in the credit guarantee contract of this case. According to the evidence and the purport of the whole pleadings as seen earlier, the contract of this case contains a description of the scope of the construction work [the office building, material storage, blosting room, painting room, ice strawet] from the scope of the construction work of this case. The contract of this case is written at the specifications of civil construction and building construction attached to the contract of this case as the sum of the above construction costs of each building, and each of the above items is written at KRW 9,240,00,000 as civil construction costs, and the above construction costs are 10,00,000,000 as civil construction costs, but each of the above construction costs can be acknowledged that there is a considerable difference from the whole construction costs of the shipbuilding of this case, which is 104,600,000,000 won, and the parties to the loan of this case can not be seen from the entire construction contract of this case.

4) Therefore, the instant loan is deemed a facility fund loan for the construction of facilities, such as office buildings, materials storage, blosting rooms, and painting rooms, which are the objects of civil engineering works and building construction as stipulated in the instant contract.

C. Whether the exemption clause is applied among the credit guarantee clause in the instant case

1) In guaranteeing the debtor's obligation for facility loan to the debtor's financial institution, the credit guarantee fund shall acquire the main collateral and terminate the entire guarantee amount by acquiring it immediately after the completion of the relevant facility, and if a financial institution violates the above special agreement, it shall not be limited to the fact that the financial institution acquires the physical collateral for the facilities established by the debtor with the funds borrowed from the debtor under the credit guarantee of the credit guarantee fund, and shall be exempted from the liability for the credit guarantee of the credit guarantee fund by terminating the credit guarantee agreement within the value of the collateral acquired if the financial institution acquires the physical collateral for the facilities established by the debtor under the credit guarantee of the credit guarantee fund, and it shall not be limited to the fact that the credit guarantee fund's obligation to secure physical collateral by establishing the first-class collateral security right with respect to such facilities, and the defendant's credit guarantee obligation shall be deemed exempted from the liability if it fails to obtain the collateral due to the reasons attributable to the financial institution (see, e.g., Supreme Court Decision 2007Da318479, Feb. 28, 1997).

2) According to Gap evidence Nos. 5, Eul's evidence Nos. 1, 2, 6, Eul, or Eul's evidence Nos. 1 through 6, the whole purport of pleadings, the defendant entered into the Convention on the Operation of Guarantee, etc. (hereinafter "the Convention") around September 2005, including the Intervenor's district, business type, and fishery products processing fisheries cooperatives (hereinafter "each member cooperative") within the scope of the contract of this case. The defendant's letter of credit guarantee under Article 8 of the Convention provides that the defendant's credit guarantee fund's credit guarantee business manual should be provided for the non-existence of the standardized contract of electronic guarantee, non-acceptance of the standardized contract of this case, non-acceptance of the standardized contract of this case and the site for the terms and conditions of credit guarantee, and that the defendant sent the letter of credit guarantee agreement of this case to the intervenor on September 23, 2005.

In light of the following circumstances revealed in the above facts, i.e., (i) the Intervenor’s conclusion of the instant agreement with the Defendant does not violate the Intervenor’s duties prescribed in the relevant Acts and subordinate statutes; (ii) the Plaintiff appears to have well known of the content of the instant agreement; and (iii) the terms and conditions to regulate the legal relationship arising in connection with the credit guarantee are natural; and (iv) the Plaintiff appears to have sufficiently predicted the fact that the instant credit guarantee terms and conditions are naturally applicable to the credit guarantee from the lower end of the instant credit guarantee statement, etc. (other terms and conditions are not asserted; and (v) the Defendant concluded the instant agreement with each of the member cooperatives belonging to the Intervenor and delivered the instant credit guarantee terms and conditions to the Intervenor, as well as the content of the instant credit guarantee agreement in 2007; and (v) the Plaintiff did not know of the fact that the instant special agreement was concluded between the Intervenor and the Defendant; and (v) the Plaintiff did not necessarily have any substantial knowledge of the fact that the instant credit guarantee terms and conditions were issued to the Plaintiff.

D. Whether the Plaintiff breached his duty of care

1) Article 4(2) of the Regulations on Credit Guarantee of Financial Institutions established by the Bank of Korea imposes an obligation on financial institutions that lend facilities funds to take measures so that loans may not be useful for debtors. This is originally established for the purpose of financial supervision to prevent the obligor from distort the efficient distribution of national economic funds by appropriating the funds for operating facilities. However, where the Korea Credit Guarantee Fund provides credit guarantee under the above special agreement for acquiring facilities funds (referring to the special agreement for acquiring collateral in this case), it is impossible for financial institutions to obtain collateral under the above special agreement if the funds are useful for debtors and not completed the relevant facilities. Therefore, it is reasonable to view that financial institutions were responsible for credit guarantee only for the funds performed in compliance with the provisions of the operating regulations above, and have the purpose of not supporting the liability for credit guarantee for the funds performed without complying with such regulations. Accordingly, in the event of lending facilities funds under a special agreement for credit guarantee, financial institutions are being 90,000,000,0000 won and 97, 97, 97, 2, 97, etc.

2) The instant loan is a facility loan, and the agreement for acquisition of the instant collateral is written on the back of the instant credit guarantee instrument, and the fact that the exemption clause of the instant credit guarantee agreement applies to the instant credit guarantee is acknowledged as above, and is examined as to whether the Plaintiff complies with the provisions of the operating rules in implementing the instant loan.

6. In light of the above facts that the Plaintiff did not know that the above construction work was carried out by the 10th executive officer of the building and the 10th executive officer of the construction project, and that the Plaintiff did not know that the above construction work was carried out by the 10th executive officer of the building and the 1st executive officer of the construction project, and that it was difficult for the Plaintiff to know that the above construction work was carried out by the 10th executive officer of the building and the 1st executive officer of the construction project without considering the facts that the loan was carried out by the 10th executive officer of the building and the 1st executive officer of the construction project (the 1st executive officer of the building and the 2nd executive officer of the construction project, the 1st executive officer of the building and the 2nd executive officer of the construction project, and that the 1st executive officer of the construction project, which was not carried out by the 10th executive officer of the building and the 2nd executive officer of the construction project, were not in conformity with the 20th executive officer rate of the construction project.

3) Furthermore, in relation to the scope of the Defendant’s credit guarantee liability, we examine the part where the Plaintiff performed the loan without complying with the above operational rules.

In light of the following circumstances as examined in relation to the negligence of the plaintiff, Gap evidence Nos. 18, 19, Eul evidence Nos. 3, Eul evidence Nos. 3, testimony of non-party 4 and non-party 1 as witness of the first instance trial, and the overall purport of pleadings as a result of the appellate court’s on-site inspection, i.e., the object of the security agreement of this case is a factory building which is the object of the construction of the building among the object of the contract of this case. The construction of the above factory was entirely not run, the defendant did not acquire any security against the above factory building at all by the plaintiff’s negligence. ② The civil engineering work among the shipbuilding construction of this case was completed only by the foundation civil engineering work, ③ it is difficult to objectively confirm the nature ratio of the construction work of this case among the shipbuilding construction of this case subject to the above loan at the time of this case. ④ Even if possible, considering the testimony of the witness of the first instance court and the result of the on-site inspection by the appellate court, it is reasonable to deem that the loan operation rule of this case did not occur.

4) As to this, the Plaintiff’s mutual financing business manual (No. 16 No. 16) provides that loans shall be granted in cases where the loan is more than 50% on the basis of the base ratio of 50%. The Plaintiff fulfilled his duty of care to confirm that the base ratio of civil engineering works and building works among the construction works of the shipbuilding yard of this case is more than 50%. Thus, the Plaintiff asserts that the loan of this case was implemented in compliance with the above provision, and the Plaintiff was not negligent in performing the loan exceeding the base ratio in violation of the operating rules.

According to the Plaintiff’s evidence No. 16, it can be acknowledged that Article 19(3)2 of the Plaintiff’s Mutual Financial Credit Business Manual provides that a business operator who provides a prior collateral for all loans may pay up to 10% of the loan if the progress of construction is more than 50% and the progress of construction is deemed possible.

However, Article 1-2 of the Banking Act provides that "All financial institutions located in the Republic of Korea shall be operated in accordance with this Act, the Bank of Korea, and orders and regulations issued thereunder (Paragraph 1)," that "this Act, the Bank of Korea, and the regulations issued thereunder shall take precedence over the provisions of the Commercial Act and other Acts and subordinate statutes (Paragraph 2)." In order to determine detailed matters necessary for the enforcement of the "Regulations on Credit Guarantee for Financial Institutions", the Bank of Korea established the "Regulations on Credit Guarantee for Financial Institutions". In the event a financial institution loans facilities under a credit guarantee agreement with a guarantee agreement for acquisition of collateral, it has a duty of care to investigate the nature of the loans by directly verifying goods or facilities, as well as by confirming the loan's nature, and it is difficult to implement the loan in response to its existing nature (see Supreme Court Decision 97Da37821, Aug. 21, 1998), and the above provision on the loan operation manual of the Corporation cannot be seen as being the only one-half loan operation manual of the Plaintiff, even if it is possible.

5) In addition, the Plaintiff asserts that the Defendant’s assertion violates the principle of good faith, as the Defendant did not raise an objection to the absence of the construction of the factory building subject to the instant collateral acquisition agreement and consented to the extension of the period of guarantee several times.

However, in light of the following circumstances revealed from the aforementioned facts and the purport of the entire pleadings, namely, ① the period of the credit guarantee of this case changed after the Plaintiff paid the entire credit guarantee of this case, even if the Defendant did not change the credit guarantee period, it seems that the scope of the loan of this case does not affect the extent of the loan of this case. ② In addition, if the Defendant did not grant the change of the credit guarantee period of this case, it is difficult to find a proximate causal relation between the change of the credit guarantee period of the Defendant and the collection and the scope of the loan of this case, such as that the Plaintiff could recover the loan of this case, etc.

C. In implementing the instant loan, the part to be deemed as not taking the Defendant’s liability to guarantee the credit of this case due to the Plaintiff’s failure to comply with the operation rules as above is recognized as above. Accordingly, the Defendant is not liable to guarantee the credit of this case against the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the part against the defendant in the judgment of the court of first instance against the defendant is unfair, it is so revoked and the plaintiff's claim corresponding to the revoked part is dismissed, and it is so decided as per Disposition.

Judges Song Jin-man (Presiding Judge)