Korea Deposit Insurance Corporation for the bankrupt Korea Mutual Savings Bank

Defendant 1 and one other (Attorney Kim Dong-sik, Counsel for the defendant-appellant)

September 29, 2005

1. The Plaintiff:

(a) Defendant 1’s 20 million won and 22% interest per annum with respect thereto from August 27, 1991 to the date of full payment;

B. The defendant 2 is jointly and severally with the defendant 1 to pay 50 million won with 22% interest per annum from August 27, 1991 to the day of full payment.

sub-payment.

2. The plaintiff's remaining claims against the defendant 2 are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1 is to be borne by Defendant 1, the part arising between the Plaintiff and Defendant 2 is to be borne by Defendant 2, and the remainder is to be borne by the Plaintiff respectively.

4. Paragraph 1 can be provisionally executed.

The defendants jointly and severally pay to the plaintiff 20 million won with 22% interest per annum from August 27, 1991 to the day of full payment.

1. Facts of recognition;

[Evidence: Facts without dispute; Written evidence of No. 1 to 5; All purports of oral argument]

A. On May 28, 191, Defendant 1 entered into an agreement on the discount transaction of notes with the non-party Gyeonggi Mutual Savings and Finance Company (hereinafter, after that, the new Gyeonggi Mutual Savings and Finance Company, a stock company established on July 26, 1993 succeeded to its rights and obligations, and thereafter, referred to as the “non-party Mutual Savings and Finance Company”) on the loans amounting to KRW 200 million per annum, interest rate of KRW 18 million per annum, interest rate of KRW 22% per annum, interest rate of overdue, and amount of KRW 200 million per annum on August 6, 1991, and Defendant 2 jointly and severally guaranteed the loans obligations under the above agreement.

B. At the time of the above agreement, the Defendants issued to the non-party company a promissory note number of which is 0037872, the issuer 2 par value of 200 million won, the due date of August 6, 2001, the date of issuance, May 28, 1991, each additional Si, the place of payment, and the place of payment, each additional Si, the branch of the Gyeonggi Bank.

C. Although the non-party company possessed the above promissory note on September 6, 1991 and presented it at the place of payment, the payment was refused on the ground of non-transaction. Meanwhile, the non-party company received the agreed interest and overdue interest from the Defendants until August 26, 1991.

D. On June 21, 1996, the non-party company obtained a decision on the provisional seizure of automobiles with the claim amounting to the Suwon District Court 96Kadan20748 on May 28, 1991 as part of the promissory notes amounting to KRW 50 million, and provisionally attached the non-party company 1’s 37da5416 Myst car.

E. The non-party company was declared bankrupt on June 29, 199 by Suwon District Court 9Ha29, and the plaintiff was the bankruptcy trustee.

2. Determination

A. According to the above facts, the defendants are jointly and severally liable to pay to the plaintiff 20 million won of the above loans and damages for delay at the rate of 22% per annum, which is the overdue interest rate, from August 27, 1991 to full payment.

B. Determination on Defendant 2’s defense

(1) When Defendant 2 was unable to obtain a loan directly due to the former Mutual Savings and Finance Company Act that limits the limit of the amount of the loan to the same person, Defendant 1 et al. obtained several recommendations in collusion with the employees of the non-party company on the ground of Defendant 1 et al., and thus, the loan agreement with Defendant 1 as the principal debtor is null and void as it constitutes a false agreement. In addition, since Defendant 2 was the actual party to the loan agreement of this case and the above loan obligation was asserted to have expired after the lapse of five years from August 191, 191, the date of maturity, the above loan agreement was actually Defendant 2, and thus, the above provision of subparagraph 3-1 through 8 of subparagraph 2 is not believed, and it is not sufficient to acknowledge this by the sole statement of subparagraph 2-1 and 2, and there is no other evidence to acknowledge this otherwise, and thus, Defendant 2’s above assertion constitutes a joint bankruptcy agreement with the other party and the bankruptcy trustee under the Civil Act, which is the most unlawful one of the bankruptcy estate.

(2) Defendant 2 asserted that the non-party company could not respond to the claim of this case because the non-party company was paid part of the loan to the non-party company with the knowledge of the loan in collusion with Defendant 1 and the non-party company was given a reduction of or exemption from the remaining money. However, it is insufficient to accept the claim of this case only with the statement of No. 1, and there is no other evidence to acknowledge it. Thus, the above assertion is without merit.

(3) Even if Defendant 1 is the principal debtor of the loan agreement of this case, Defendant 2 asserted that the above loan obligation was extinguished on May 28, 1996 after the expiration of the five-year commercial extinctive prescription period after the provisional seizure against the automobile owned by Defendant 1, but Article 168 of the Civil Code provides that the provisional seizure as a cause of interrupting prescription can be said to have been exercised by the obligee by provisional seizure. As such, the provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's provisional seizure's effect continues until the preservation of execution of provisional seizure's provisional seizure continues to exist, and the interruption of extinctive prescription's extinctive prescription against the principal debtor is effective against the guarantor.

(4) Meanwhile, in a case where an obligee claims part of a provisional attachment against a debtor's property as a preserved bond and the obligor's property is subject to provisional attachment, the interruption of prescription shall be effective only for that part of the preserved bond, and as to the remaining claims not included in the preserved bond by provisional attachment, the interruption of prescription shall not take effect. As seen earlier, it is reasonable to deem that the period of extinctive prescription has expired as of August 6, 2001 with respect to the remainder of 150 million won other than the above part of the claim, since the non-party company's secured claim by provisional attachment against the defendant 1 was partly 50 million won out of the promissory notes dated May 28, 1991, the payment period of the loan of this case was 10 million won after the lapse of 10 years from August 6, 1991, and the defense by the defendant 2 pointing this out is valid (the above loans of this case are the period of extinctive prescription of 50 years against the defendants' general claim).

C. Sub-decision

Therefore, Defendant 1 is jointly and severally liable to pay to the Plaintiff KRW 20 million, and Defendant 2 is jointly and severally liable to pay to the Plaintiff KRW 50 million, which is part of the above amount, and damages for delay at the rate of 22% per annum, which is the overdue interest rate from August 27, 191 to the full payment day.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 1 of this case is accepted on the grounds of its reasoning, and the claim against the defendant 2 of this case is accepted on the grounds of its reasoning within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition

Judges Lee Jae-hee