(영문) 서울행정법원 2016.7.15. 선고 2015구합80734 판결

A. The Korea Housing Finance Corporation, from May 19, 2003 to September 18, 2005, provided a credit guarantee for the part payment loan obligation to 83 Korean Housing Finance Corporation among the buyers of apartment apartments, "C" in Sacheon-si B. From May 19, 2003 to Sacheon-si, and the part payment loan obligation to 83 Korean Housing Finance Corporation. The buyer repaid the guarantee obligation to the National Bank on September 28, 2005, and on September 23, 2005, subrogated the right to claim for reimbursement against the buyer (principal principal amount of 3.8 billion won) and the national bank against the prohibition of disposal of the part payment claim for the part payment loan registration of 83 households among the part payment apartment units established as a security for the part payment loan obligation.

B. On March 3, 2006, Sejong integrated Construction Co., Ltd. (hereinafter “Seung integrated Construction”) acquired the instant apartment construction project, and the buyer cancelled the sales contract due to the failure to pay the remainder of the sales contract, and acquired the said apartment units by 83 households.

C. On December 14, 2007, if the 43 households out of the above 83 households with provisional disposition had been cancelled, the 18 households’ indemnity obligation should first be repaid in cash prior to the cancellation of provisional disposition, and the remaining 25 households’ indemnity obligation should be replaced by an apartment house 24 households (21 households out of the remaining 26 households where the provisional disposition has not been rescinded and the 3 households out of the 26 households with no claim preservation measure has not been taken; hereinafter “the instant 1 substitute security”) set up a subordinate collateral security and set up a debt settlement agreement to cancel the senior mutual savings bank’s mortgage established on the 1 substitute security (hereinafter “the first debt settlement agreement”).

D. On December 18, 2007, the Korea Housing Finance Corporation accepted the first debt settlement proposal of this case (at that time, the Plaintiff handled the business as an employee in charge) and repaid KRW 835,577,886 of the 18 generation’s indemnity claim, and set up a subordinate mortgage on the first substitute security of this case, and released a provisional disposition against the 43 generation on December 207.

E. However, the senior mortgage was not cancelled by the presidential mutual savings bank, and the Korea Housing Finance Corporation demanded implementation from the end of December 2007 to the end of February 2008 several times from the end of February 2008.

F. In the early March 2008, if the Sejong General Housing Finance Corporation (hereinafter referred to as the “New Housing Finance Corporation”) revokes additional claims preservation measures against 12 households among 26 households in which the claims preservation measures are maintained, it would sell them and use them as operating funds of the Sejong General Housing Finance Corporation (hereinafter referred to as the “Second Alternative Security”) and created subordinate collateral security against the other apartment and commercial units of 8 households in the Korea Housing Finance Corporation (hereinafter referred to as the “Second Alternative Security”), and presented a debt settlement proposal with the content that cancellation or transfer of senior collateral security established by the Daegu Mutual Savings Bank (hereinafter referred to as the “Second Debt Settlement proposal”).

G. On April 1, 2008, the Plaintiff (the Plaintiff, who was the head of the team in charge of the right to indemnity management of the D branch of the Korea Housing Finance Corporation (hereinafter referred to as the “D branch of this case”) at the time, was the head of the branch office of this case on April 1, 2008, and was the head of the branch office of this case, E (the vice-director of January 25, 2008) (the vice-director of January 25, 2008), as the head of the branch office of this case, proposed the “C apartment cancellation of provisional disposition and the review of the alteration of the right to indemnity against 12 households (hereinafter referred to as the “written approval of this case”), and approved E as it is.

H. On June 26, 2008 and July 17, 2008, the Plaintiff cancelled its claim preservation measures by affixing the official seal of the head of the branch office in the document requesting the cancellation of provisional disposition against the above 12 households. However, the Korea Housing Finance Corporation, as it did not cancel or transfer senior collateral, was to secure only subordinate collateral security against the instant apartment eight generations.

I. From January 26, 2010 to April 1, 2011, the voluntary auction procedure for eight households of apartment among the instant secondary collateral was conducted, but the Korea Housing Finance Corporation failed to receive dividends in the order of priority.

(j) On March 14, 2013, the Defendant rendered a ruling to compensate the Plaintiff for KRW 143,01,620, and KRW 15,890,180 to E, respectively, by deeming that the Plaintiff and E incurred damages to the Korea Housing Finance Corporation in relation to KRW 529,672,703 of the right to indemnity by rescinding a claim preservation measure in accordance with the instant debt settlement plan.

(k) On June 13, 2013, the Plaintiff filed a motion for review on the determination of compensation with the Defendant, but the Defendant rendered a dismissal ruling on September 3, 2015 (hereinafter “instant decision for review”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the determination of the retrial of this case is legitimate

(a) Occurrence and scope of liability for compensation;

1) As to whether it is gross negligence

A) Article 4(1) of the Act on Liability of Accounting Personnel, Etc. provides that where accounting personnel have inflicted damage on the property of an organization, etc. subject to audit by the Board of Audit and Inspection by intention or gross negligence in violation of the provisions prescribed in the statutes or other relevant regulations and budget, they shall be liable for compensating for such damage. In light of the purpose of the Act stipulated in Article 1 of the same Act and Article 3 of the same Act as one of the requirements for compensating for the liability of accounting personnel where they have committed a "serious negligence" as one of the requirements for compensating for the liability of accounting personnel, it shall be determined by deeming that the degree of violation of the duty of good faith may be deemed as serious in light of the contents of the duty (see, e.g., Supreme Court Decision 2001Du9660, Jun. 27, 2003).

B) In light of the following facts and circumstances, it is reasonable to view that the Plaintiff’s act of preparing a document of approval with the content that the Plaintiff received the second debt settlement proposal of this case and executed it with the approval was grossly in violation of the duty of good faith, and that there was gross negligence on the part of the Plaintiff.

(1) Article 40(1) of the Housing Finance Credit Guarantee Credit Management Regulations (amended by the Korea Housing Finance Corporation Regulations, on August 17, 2010, the Act on the Implementation of Obligations for Housing Finance Credit Guarantee and the Right to Claim Reimbursement) provides that, when collecting more than the estimated amount of profit from the actual indemnity of the relevant goods, the amount of profit from the actual indemnity of the relevant goods is compensated by the acquisition of collateral, etc., the preservation measures for claims may be reserved or cancelled with the approval of the person with the right to make a decision, only when it is deemed that there is a benefit other than the aforesaid provisions. It is difficult to deem that the

(2) The Korea Housing Finance Corporation is one of its principal duties to guarantee debts, and thus guaranteed debts.

The business related to securing the right to indemnity and securing the right to indemnity after implementation is the main business of the Korea Housing Finance Corporation, which ordinarily and repeatedly handles. As such, a high level of expertise is required for employees in charge.

(3) Measures for preserving claims are indispensable to secure the right of indemnity and cancellation of such measures.

The risk of financial loss directly to the Korea Housing Finance Corporation is a matter of risk.

When performing these duties, more attention should be given than the general duties.

(4) The Korea Housing Finance Corporation shall complete auction at the auction among 13 households for which no mortgage preservation measure has been released.

In the case of 12 households, all claims for reimbursement were recovered from the remainder of 569,439,538 won, excluding 69,720 won. The Korea Housing Finance Corporation has secured senior claims for the remainder of apartment buildings, so it was possible to recover the claims for reimbursement. However, it was impossible to recover all due to the cancellation of provisional disposition.

⑤ 원고는 세흥종합건설로부터 이 사건 제1채무조정안이 제안되었을 떄에도

In the evaluation of a branch office at the end of the year, considering that the collection performance was included in an important evaluation item, it was thought that it was not likely that it would not perform the contents of the proposal, and that it was promoted to receive the proposal. However, even if it was found that it was not possible for it to cancel the senior collateral security in the name of the large mutual savings bank under the title of the large mutual savings bank under the debt settlement plan of this case, it was carried out in the direction of accepting the second debt settlement plan of this case with similar contents. There is no evidence suggesting that the second debt settlement plan of this case was carried out as it was.

2) As to the amount of indemnity

In light of the following circumstances, the Plaintiff’s indemnity at the rate of E and 9:1 and the amount reduced by 70% cannot be deemed unlawful.

① On January 25, 2008, E was appointed as the head of the instant branch office, and not later than three months thereafter, approved the instant document on April 1, 2008. On the other hand, the Plaintiff was working in the instant branch office from August 20, 2004, and was in charge of the affairs related to the securing of the right to indemnity and the measures related to the preservation of claims. The Plaintiff was directly engaged in the affairs related to the instant first debt settlement plan, and was well aware of the background, necessity, and problems related to the instant apartment.

The Plaintiff is the Korea Housing Finance Corporation as the second debt settlement proposal in the instant approval document.

In order to clarify that senior mortgage will be acquired, it is more favorable to collect the claim for reimbursement gradually as such method, and the prior mortgage will be terminated, and the prior mortgage will be gradually repaid with the sale price, and the other matters shall be stated in the column of "other matters" that the claim for reimbursement will be repaid gradually, it is not included in the review of the problems or risks that may occur in the event of cancellation of a provisional disposition, and there is no data to view that this part was explained to E orally.

③ Although F and G, the team leader of the instant branch, affix their seals on the instant approval document, they are not the person who has the authority to draft the instant approval document or to approve it, and only have affixed their seals because they may have indirect relations with the right to indemnity managed by them. They may not request them to pay the same attention as the Plaintiff or E.

B. Whether the extinctive prescription expires

1) The Plaintiff asserts to the effect that, since the Korea Housing Finance Corporation knew the occurrence of damages caused by the provisional disposition following the cancellation of the provisional disposition with the approval of the instant written approval, the compensation award rendered after the lapse of three years thereafter is unlawful.

2) First, as to the time when the Korea Housing Finance Corporation becomes aware of the occurrence of damages due to the cancellation of provisional disposition in accordance with the instant Second Debt Adjustment Plan, it appears that the Korea Housing Finance Corporation, as a member of the Korea Housing Finance Corporation, could have finally known the occurrence and degree of the damages only when it exercises a security right, such as junior collateral security, established in accordance with the instant Second Debt Adjustment Plan, and becomes an unrecoverable claim even

As seen earlier, since a claim for reimbursement cannot be recovered due to the cancellation of provisional disposition following the instant claim for debt settlement around April 1, 2011, as seen earlier, the extinctive prescription of three years from the date on which the Plaintiff became aware of the occurrence of damages, unlike the Plaintiff’s assertion, cannot be deemed unlawful on the ground that the compensation decision made on March 14, 2013, before the lapse of three years thereafter, exceeds the extinctive prescription period. The Plaintiff’s assertion on this part is difficult.

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges

Judges Kim Jong-tae

Judges Kim Young-young

Judges Maap-man

Attached Form

A person shall be appointed.

참조조문

-회계관계직원 등의 책임에 관한 법률 제4조 제1항

참조판례

-대법원 2003. 6. 27. 선고 2001두9660 판결

유사 판례

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