[Defendant-Appellee] U.S. C. (Law Firm Hunumam, Attorney Yu-il, Counsel for defendant-appellee)

[Defendant-Appellee] Specialized Corporation (Attorney Cho Chang-soo, Counsel for defendant-appellee-appellant)

July 10, 2009

Incheon District Court Decision 2008Gahap12725 Decided January 8, 2009

1. Revocation of a judgment of the first instance;

2. From among the distribution schedule prepared by the above court on August 7, 2008 with respect to the auction of real estate (No. 2007) in the Incheon District Court Decision 2007TTTTW 481,810,022 won against the defendant, 1,578,337,741 won, and 263,472,281 won for the amount of dividends against the plaintiff, respectively, shall be corrected to 263,472,281 won.

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

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged in the absence of dispute between the parties, or by taking account of the overall purport of the pleadings in each entry in Gap evidence of subparagraphs 1 through 8, and Eul evidence of subparagraphs 1 through 5 (including each number):

A. On September 13, 2006, the Korea Credit Guarantee Fund issued a bond of 184,870,000 UN for foreign currency facility loan that the said company is scheduled to obtain from the Industrial Bank of Korea (hereinafter “Corporate Bank”), 166,383,00 UN (90%) and a guarantee on June 25, 2014, for the guarantee term of 166,383,000 UN (90%). Of the special terms stated on the front of the said guarantee term, matters concerning the acquisition of collateral and the partial termination of the credit guarantee are as follows:

It is necessary to set up a first-class mortgage with at least 184,870,00 p.m. at least 100 p.m. (133,107,000 p.m.) immediately after the transfer of ownership on the facility (428-6 land and above-ground buildings in the Nam-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong

B. At the time of issuance of the above letter of guarantee, the Credit Guarantee Fund’s “Partial Guarantee Terms and Conditions” (hereinafter “Partial Guarantee Terms and Conditions”) stipulates as follows:

Article 1 (Definitions of Terms)

The term "guaranteed loan" means a loan implemented in compliance with credit guarantee conditions, which is a loan summing up the Fund Liability Division and the share of creditor's responsibility according to the rate of guarantee.

Article 9 (Recovery of Claim for Repayment by Satisfaction of Claim)

A security right that only provides a secured debt as a secured claim or a collection due to the exercise of a security right acquired by a special agreement on the front of this letter of guarantee (including collection received in return for the termination of a security right) shall be appropriated first for the repayment of a secured loan.

Article 16 (Subrogation by Subrogation, etc.)

A creditor shall transfer to the Fund a security interest equivalent to the amount obtained by the special agreement on the front of this letter of guarantee and “the amount remaining after subtracting secured claims other than the secured claims from the value of the secured claims related to the other secured loans on the front of this letter of guarantee less the secured claims other than the secured claims. In such cases, the Fund shall have the right to be reimbursed from the transferred security interest in preference to claims other than the secured loans.

C. On September 27, 2006, a corporate bank loaned a foreign currency 182,710,000 United Nations currency funds for foreign currency facilities using the said guarantee guarantee as a security. Pursuant to the special agreement entered into on the front of the said guarantee, the Sungdelco acquired on September 28, 2006 the ownership of the land for factories, factory buildings, and machinery and equipment within the above factory (hereinafter collectively referred to as the “mortgaged real estate”) with a maximum claim amount of KRW 2.16 million with respect to the land for factories, factory buildings, and the above factory facilities (hereinafter referred to as the “instant secured real property”), and registered the establishment of a mortgage on September 28, 2006, under the special agreement entered on the front of the said guarantee.

D. On August 8, 2007, the U.S.C. lost the benefit of the term of the above loan due to the closure of business, etc., the Korea Credit Guarantee Fund subrogated 315,943,947 won of the principal and interest of the loan guaranteed by the Korea Credit Guarantee Fund out of the above loan to the U.S. Enterprise Bank on March 10, 2008, and on the same day, it entered into a contract for partial transfer of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right of the right

E. On March 10, 2008, the Plaintiff subrogated KRW 314,265,436, which is a joint and several surety for the indemnity liability against the UNEFF. On December 14, 2007, the Plaintiff subrogated for KRW 314,265,436, which is the full amount of the indemnity liability against the UNEFFF. The Defendant was transferred from a corporate bank all the above indemnity liability against the UNEF.

F. On August 6, 2007, the corporate bank applied for a voluntary auction of the instant secured real estate with the Incheon District Court Decision 2007Ma48136, around 2007, and the real estate was adjudicated at KRW 1,850,00,000. On August 7, 2008, the above court prepared a distribution schedule stating that the amount of KRW 1,841,810,02, which was deducted the execution cost from the successful bid price, was distributed to the Defendant on the date of distribution on August 7, 2008. Meanwhile, at the time of the above auction as a comprehensive collateral, the instant secured mortgage included three small and medium enterprise loan liabilities (including the principal of the loan as of August 9, 2005, KRW 17,231,408, KRW 100,000,000,000,000,000 won, interest of KRW 16,308,006).

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff asserts that since the Korea Credit Guarantee Fund under the terms and conditions of the instant loan guarantee agreement (Article 9 and 16), the Korea Credit Guarantee Fund has a special agreement that the Korea Credit Guarantee Fund will be paid in preference to claims other than the guaranteed loan of an enterprise bank (hereinafter “the instant preferential recovery agreement”), it is unreasonable for the Plaintiff to distribute the principal and interest of the instant secured loan to the Defendant in preference to the remainder other than the Defendant’s principal and interest of the guaranteed loan, on the remaining money after allocating the principal and interest of the instant secured loan that the Defendant would be paid in preference to the Defendant’s secured debt, but it is unreasonable for the distribution court to pay the Defendant all the successful bid price excluding the execution cost.

B. Defendant’s assertion

In regard to this, the defendant asserts that it is reasonable that the distribution court distributes all of the amount to be actually distributed to the defendant to the defendant, because the plaintiff merely subrogated to the claim for reimbursement against the U.S. Credit Guarantee Fund, and the defendant can not be deemed to have subrogated to the right of the instant preferential recovery agreement between the Korea Credit Guarantee Fund and the corporate bank, and the defendant can receive dividends only if he has received dividends in preference to the plaintiff within the limit of the remaining collateral security and the remaining amount of claims, which is a partial subrogation, within the scope of the remaining amount of claims.

3. Determination as to whether the instant preferential recall agreement applies to the Plaintiff

(a) Preferential rights to payment from the Credit Guarantee Fund under a special agreement for preferential recovery;

If a person who has a legitimate interest in performance, makes a payment by subrogation for a part of the claim on behalf of the debtor, the subrogation shall acquire the rights to the claim and security held by the previous creditor within the extent of the value of performance by which he has made the payment by subrogation, and if the creditor has a mortgage on the real estate, the obligee shall be liable to make the subrogation a supplementary registration of partial transfer of the

Meanwhile, Article 483(1) of the Civil Act provides that "if a portion of the claim has been subrogated, the subrogated person shall exercise his right together with the obligee in proportion to the value of the performance performed by him." However, the priority between the obligee and the subrogated person is not stipulated. However, it is not necessary to protect the obligee until the obligee is harmed, and a partial subrogation cannot be prejudicial to the indivisible nature of the right of security held by the obligee. Therefore, the obligee should interpret that he has the right of preferential payment against a part of the subrogated person (see Supreme Court Decision 88Meu1797, Sept. 27, 198, etc.).

However, in this case, the corporate bank voluntarily renounced the right to preferential reimbursement for some subrogation granted to the corporate bank by executing loans to the U.S. deelco under the premise that the special agreement for preferential recovery under the terms and conditions of loan guarantee is applied, and therefore, in this case, the order of repayment shall be determined according to the special agreement for preferential recovery separately determined between the partial subrogation and the creditor.

The guarantee loan stipulated in the special agreement for preferential recovery of this case is a foreign currency facility loan to the corporation's U.S. delco. Thus, the Korea Credit Guarantee Fund has the right to be paid in preference to three of the secured claims of this case, other than the foreign currency facility fund loan debt, due to the execution of the mortgage of this case.

B. Whether the Plaintiff may claim the right under the special agreement for preferential recovery of the instant case

The term “right regarding security” referred to in subrogation includes not only a typical physical and human security, such as a pledge, mortgage, or right against a guarantor, but also a right which a creditor acquires upon a special agreement, if there is a special agreement between a creditor and a debtor to secure the performance of an obligation (see Supreme Court Decision 2005Da10760, Mar. 16, 2007, etc.).

However, since the special agreement on the preferential recovery of this case is not concluded between the Credit Guarantee Fund, the creditor, and the debtor, but between the Credit Guarantee Fund and the third party, it cannot be viewed that the plaintiff is subrogated or transferred to the rights of the Credit Guarantee Fund as a matter of course. Therefore, we examine whether there exists a justifiable reason for the plaintiff to be subrogated to the corporate bank of the Credit Guarantee Fund under the special agreement on preferential recovery of this case.

① The Plaintiff is a joint and several surety of the del de de facto Korea Credit Guarantee Fund who has a legitimate interest in the repayment of the claim. As such, the Plaintiff is naturally subrogated to the Korea Credit Guarantee Fund (Article 481 of the Civil Act), and subrogation may exercise creditors’ rights to collateral within the scope of its own right to reimbursement (Article 482(1) of the Civil Act). The term “right to collateral security to the Korea Credit Guarantee Fund which is a creditor” can be seen as including preferential reimbursement order under the instant preferential reimbursement agreement. ② The subrogation is allowed to transfer the security right and other rights which the obligee had within the scope of its right to indemnity, and it seems reasonable to limit the obligee’s right to collateral to the obligee’s and obligor’s right to collateral without any logical reason. ③ The Defendant’s preferential reimbursement agreement is more effective than that of the terms and conditions of the instant joint and several surety’s indemnity agreement by issuing a certificate of credit guarantee to small and medium enterprises and allowing them to use it as collateral, and thus, it is reasonable to interpret it as valid only for the purpose of the terms and conditions of the reimbursement of the instant joint and indemnity agreement.

(1) The Supreme Court Decision 200Da37319 Decided January 19, 2001, which was presented by the defendant as the ground for rejecting the plaintiff's assertion, was a special case where there was a need to adjust the interests of some subrogated persons who have made a payment before and after the date of payment. In the above case, the Supreme Court held that even if a person who made a payment by a creditor was transferred a part of the right of collateral security corresponding thereto from the creditor and was under a special agreement with the creditor that recognized the priority of the creditor's repayment of the remaining claims, the person who made a payment by subrogation of all the remaining claims of the creditor cannot be naturally transferred the status of the creditor by the above special agreement, even though it appears to be a result of interpretation to ensure the equity as the completion of the right of collateral security between the above partial subrogated persons.

4. Calculation of a dividend amount;

A. As to the calculation of claims in subrogation of the Credit Guarantee Fund and the amount of remaining claims exercised by corporate banks among foreign currency facility loans in relation to the execution of the instant right to collateral security, Article 2 of the Agreement on Partial Transfer of Mortgage (Evidence A) concluded between the Credit Guarantee Fund and corporate banks was separately stipulated as follows.

(Order of Appropriation for Facility Funds) The distribution of dividends under the execution of mortgage (including the portion not transferred to the Credit Guarantee Fund) acquired by an enterprise bank in accordance with the guarantee agreement granted by the Credit Guarantee Fund under paragraph (1) of the same Article shall be made in the following order:

1. Unclaimed bonds (including interest) related to partial termination under the special agreement to guarantee the above non-performing loan;

2. Overdue interests accrued until the date on which the guaranteed repayment obligation of the above guaranteed loan is discharged and the agreed difference;

3. If any remainder remains after appropriation under subparagraphs 1 and 2 above, the amount divided in proportion to the partial guarantee ratio of the transferor and transferee as of the dividend date.

4. The amount of Korean won converted into the amount of subrogated payment in the event of appropriating the dividend under the above-mortgage (including the amount yet to be transferred) shall be applied to the amount of Korean won converted into the amount equivalent to the amount of subrogated payment in 33,386,234 United Nations, which is the first public notice of Japanese law as of the

B. The order of preferential repayment and the calculation of the amount of preferential repayment under Article 2 of the above Act shall be as follows:

(i)an attempted claim (including interest) with respect to partial termination under a guarantee agreement for a non-loan;

This is the amount equivalent to the principal and interest of the remaining foreign currency facility loan of an enterprise bank excluded from the beneficiary of credit guarantee due to the partial termination of the credit guarantee, and according to the Eul evidence No. 4-1, the sum of the principal and interest of the loan as of August 7, 2008 as of August 7, 2008 and the interest of 125,223,762 as of August 7, 2008 (However, with respect to the calculation of the principal and interest of the foreign currency facility loan of this case under the above collateral security transfer contract, the foreign currency fund of this case shall be calculated based on the Korean won amount converted into the rate of the first public notice of the Japanese law as of the date of the dividend payment. However, since there is no data on the amount of the principal and interest claim based on the Japanese law of the enterprise bank as of the dividend date, the plaintiff shall be calculated in Korean won as of August 4, 2008.

(2) The overdue interest accrued until the date of the fulfillment of the guaranteed obligation of the guaranteed non-loan and the agreed difference

According to the overall purport of Gap evidence Nos. 4, Eul evidence Nos. 4-1, Eul evidence Nos. 4-5 and Eul evidence Nos. 5, the guaranteed principal of the Credit Guarantee Fund is 32,887,800 UN, and the interest rate on the interest rate on Sep. 27, 2007 is 10.674%, the difference between the interest rate on delay damages and the agreed rate is 10.6474%, and the initial notice redemption rate for the first notice of Japanese corporate bank in Japan as of the dividend date is 936.4/100, and the amount recognized by this part is 14,823,455 won (32,87,800,800 x 936.4/100 x 100 x 10.644% x 165/365 x the plaintiff's calculation).

(3) If there is any remainder after such appropriation, the remaining claim as of the date of distribution shall be divided in proportion to the partial guarantee ratio of the transferor and transferee.

The term "amount" refers to the amount equivalent to 90% of the total amount of credit subrogated by the Korea Credit Guarantee Fund, which is equivalent to 3,386,234 United Nations on foreign currency conversion amount of credit guaranteed by the Korea Credit Guarantee Fund under Article 2 of the Agreement on Partial Transfer of Collateral Security. The amount of credit subrogated by the Korea Credit Guarantee Fund is 281,37,845 won (3,386,234N x 936.4/100 x 90%).

C. Sub-decision

As seen earlier, in the auction procedure of this case, the amount of actual dividends after deducting the execution cost out of the successful bid price is KRW 1,548,977,169 (won 1,534,153,714 + 14,823,455), and the remaining amount is 292,832,853 ( KRW 1,841,810,822 - 1,548,97,169). Since the plaintiff can receive dividends in preference to other claims of an enterprise bank, it is within the scope of the remaining amount, the plaintiff has the right to receive dividends in preference to the above other claims of the enterprise bank.

Therefore, the amount of dividends against the defendant shall be 1,578,37,741 won (1,841,810,022 won - 263,472,2822 won) within the scope of the dividend amount that the auction court prepared on August 7, 2008 with respect to the above real estate auction case, and the amount of dividends against the plaintiff shall be corrected from 0 won to 263,472,281 won, as requested by the plaintiff.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked, and it is so decided as per Disposition with the decision to accept the plaintiff's claim.

Judges Park Jong-chul (Presiding Judge)

A judge is unable to sign and seal due to the issuance of judicial research;