A joint trustee in bankruptcy of a national comprehensive financial company of the bankrupt country and one other

Defendant (Law Firm Lee & Lee, Attorneys Cho Jae-soo et al., Counsel for the defendant-appellant)

Korea Oil Industry Co., Ltd. (Law Firm two U.S., Attorneys Seo-tae et al., Counsel for the plaintiff-appellant

November 16, 2006

Seoul Central District Court Decision 2005Ga344829 Decided June 22, 2006

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering payment to the plaintiffs in excess of 3,466,979,549 won and 5% per annum from November 29, 2005 to January 18, 2007, and 20% per annum from the next day to the date of full payment. The plaintiffs' claim corresponding to the above revoked part is dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total cost of the lawsuit is borne by the defendant and the supplementary intervenor is borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiffs 3,46,979,549 won with interest rate of 20% per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence 1, 2, 3-1, 2, 4, and 1.

A. On October 15, 1992, the East Asia Investment Finance Co., Ltd. (hereinafter “BF”) entered into a bill transaction agreement with the Korea Oil Industry Co., Ltd. (hereinafter “Korea Oil Industry Co., Ltd.”) with the limit of 19,900,000,000 won due date, and with October 14, 1993. The Defendant jointly and severally guaranteed all the obligations under the bill transaction agreement with the Korea Oil Industry Co., Ltd. (hereinafter “Korea Oil Industry Co., Ltd.”). The overdue interest rate on the obligations of the said bill transaction agreement was 17% per annum from July 1, 1993 to August 31, 1996, and the period of redemption was changed after April 26, 199 to the 19% per annum.

B. On April 6, 1994, when the bill was traded with the national gold in accordance with the above bill transaction agreement, the company reorganization decision was made by the Seoul Central District Court on April 6, 1994, and the national bond was 37,400,000,000 won as the reorganization claim in the above company reorganization procedure.

C. The reorganization plan approved on March 13, 1995, which was approved and decided on March 13, 1995, provides that the principal among the claims against national gold shall be paid in the first year after 1996 as of the year 195 and the year 2005 shall be paid in 10 years as of June 29 and December 30 of the year in question, and 8.75% per annum as to interest and delay damages shall be applied, but after the year 196 as of the year 196, the repayment on June 29 and 30 of the year in question shall be made in 10 years after the year 196 as of December 30 of the year 2005, and the approval decision on the reorganization plan was finalized on March 20, 195.

D. On July 23, 1998, the Seoul Central District Court rendered a decision to terminate the above reorganization proceedings with respect to national gold, which became final and conclusive on July 30, 1998.

E. During July 10, 2005 according to the above approved reorganization plan, Daehan repaid all the principal amount of reorganization obligation and interest at the rate of 8.75% per annum reduced or exempted under the above reorganization plan which occurred in relation thereto, and as a result, Daehan’s joint and several surety principal was extinguished as shown in the annexed Table 1.

F. On the other hand, on May 10, 2005, the national balance sent a peremptory notice to the Defendant on May 12, 2005 regarding the overdue interest on the obligation to pay the deposit under the above bill transaction agreement, and the Defendant received it on May 12, 2005. From May 13, 2000 when five years have elapsed since the above date of receipt to July 10, 2005, the damages for delay by the rate of 10.25% per annum equivalent to the difference between 19% per annum and 8.75% per annum from the above amount of principal of the guaranteed debt from May 13, 2000 when the above principal was repaid.

G. On September 15, 2000, the Korean Supreme Court declared bankrupt on September 15, 200, and the Plaintiff Kim Jae-gu and Cho Jae-gu were appointed as bankruptcy trustee, and on August 1, 2006, the Korean Deposit Insurance Corporation again appointed the Plaintiff Kim Jae-gu as bankruptcy trustee.

2. Determination:

(a)the occurrence of damages for delay;

Although the approval of a reorganization plan with the contents of reducing the obligation with respect to the principal obligation of the reorganization company, it does not affect the guarantor's guarantee obligation. Thus, the defendant is still liable to pay to the plaintiffs the amount equivalent to the difference between the rate of damages for delay at the original contract (19% per annum) and the rate of damages for delay reduced by the reorganization plan (10.25% per annum) (10.25% per annum). Therefore, barring any special circumstance, the defendant is liable to pay the defendant's damages for delay with the total amount of 3,46,979,549 won per annum from May 13, 2000 to July 10, 2005, when the extinctive prescription period is five years after receiving the notice of demand for payment from the plaintiffs for the damages for delay of the guaranteed obligation and the damages for delay reduced by the reorganization plan.

B. Judgment on the defendant's assertion

(1) ㈎ 이에 대하여 피고는, 채권자의 정리계획에 의하여 감경된 부분에 대한 정리절차에서의 권리행사는 정리계획인가결정 확정시에 종료되어 이에 대한 보증인의 보증채무에 대한 소멸시효는 그 인가결정 확정시부터 다시 진행하므로, 이 사건 인가결정 확정일인 1995. 3. 20.로부터 감면된 지연손해금 전부에 대한 소멸시효기간이 한꺼번에 진행하여 그로부터 5년이 경과한 2000. 3. 19.경 지연손해금 전부에 대한 소멸시효가 완성되었다고 주장하고, 가사, 2000. 3. 20.경 지연손해금 전부에 대한 소멸시효가 완성되지 않았다고 하더라도, 정리절차 종결결정이 확정된 1998. 7. 30.에는 정리절차 참가행위가 종료되었으므로 그때로부터 5년의 상사시효기간이 경과한 2003. 7. 29.에는 지연손해금 전부에 대한 소멸시효가 완성되었다고 주장한다.

㈏ 살피건대, 회사정리절차에 있어 정리채권자가 그 권리를 신고하여 정리절차에 참가하면 시효중단의 효력이 발생하고 그 중단의 효력은 정리회사가 주채무자인 경우 보증인 등에 대하여도 미치며, 정리회사의 주채무 중 지연손해금에 관한 연체이율을 감경하는 정리계획 인가결정이 확정되면 감경된 부분에 관한 보증인의 보증채무에 대한 소멸시효는 그 인가결정 확정시부터 다시 진행하는 바, 그 감경된 지연손해금 중 정리계획 확정시까지 이미 발생한 지연손해금은 정리계획 확정시부터 보증인 등에 대하여 소멸시효가 다시 진행하지만, 지연손해금은 원금에 대한 변제가 지체된 기간의 경과에 따라 계속적으로 발생하는 것이므로 아직 발생하지도 않은 장래의 지연손해금 채무 일체에 대하여 그 인가결정 확정시로부터 곧바로 소멸시효가 진행된다고 볼 수 없다( 대법원 1995. 11. 21. 선고 94다55941 판결 참조).

In this case, damages for delay which had already been incurred until March 20, 1995, which is the date when the above reorganization plan was finalized, shall be deemed to have been extinguished by the lapse of five years from March 20, 1995, which is the date when the above reorganization plan was finalized. However, damages for delay which had continued after March 20, 1995 shall be deemed to have been extinguished by the lapse of five years from the expiration of the period of delay, simultaneously with the lapse of five years (the damages for delay shall be deemed to have been extinguished by the lapse of five years from the expiration of the period of extinctive prescription (the damages for delay shall be deemed to have been paid by the due date for payment in part according to the reorganization program and shall be incurred newly at a certain rate for the remainder of the principal and interest. Therefore, the damages for delay in whole shall not be deemed to have run at the time when

Therefore, the defendant's assertion that the period of extinctive prescription is in progress from the date of confirmation of the authorization decision of this case or the date of confirmation of the completion of reorganization proceedings, and accordingly the above damages for delay has expired in whole.

(2) ㈎ 다시 피고는, 피고가 나라종금에 대하여 부담하는 변제기의 유예가 없는 원금 전액에 대한 보증채무는 채권자가 언제든지 피고에게 원금 전액에 대한 지급을 구할 수 있는 등 주채무자인 대한유화의 정리계획상 채무에 대하여 부종성을 갖지 않으므로, 피고에 대한 원금 전액의 보증채권은 정리계획인가결정 확정일인 1995. 3. 20. 또는 정리절차종결결정 확정일인 1998. 7. 30.부터 소멸시효의 진행이 개시되어 그때로부터 5년이 경과한 2000. 3. 19.경 또는 2003. 7. 29.경 보증채권 원금에 대한 시효가 완성되어 소멸하였고, 민법 제183조 에 따라 그 종된 권리인 지연이자(지연손해금) 청구권 역시 시효로 소멸하였다고 주장한다.

㈏ 우선, 회사정리절차 참가로 인한 시효중단효과의 지속기간에 관하여 보면, 회사정리절차 참가는 정리채권자 또는 정리담보권자의 권리행사로서의 실질을 가지는 것으로서 회사정리법 제5조 의 규정에 의하여 그 참가행위에 인정되는 시효중단의 효력은 정리회사의 채무를 주채무로 하는 보증채무에도 미치는 것이고, 그 효력은 정리절차 참가라는 권리행사가 계속되는 한 그대로 유지되므로, 정리절차 폐지결정이 내려지거나 정리절차 종결결정 내려진 경우에는 그 결정 확정시에 채권자의 정리절차에서의 권리행사가 종료되고, 중단되어 있던 보증채무의 소멸시효는 그 때부터 다시 진행을 개시한다고 할 것이다( 대법원 1995. 5. 26. 선고 94다13893 판결 참조).

Therefore, the above argument by the defendant is without merit that the extinctive prescription of the guaranteed obligation on the whole principal of the above principal shall run from March 20, 1995, which is the final date of the decision to approve the reorganization plan, for which the defendant has not been granted a grace period for national liquidation.

㈐ 나아가, 피고에 대한 원금 전액의 보증채권이 주채무자인 대한유화에 대한 정리계획상의 채권과 상관없이 정리절차종결결정 확정일로부터 독립적으로 소멸시효의 진행이 개시되는지 여부에 관하여 본다.

On the other hand, Article 240 (2) of the Company Reorganization Act excludes the subsidiary nature of the guaranteed obligation by prescribing that the principal obligation of the reorganization company does not affect the guaranteed obligation, but it is interpreted that the reorganization plan does not affect the guarantor because the effect of the reorganization plan differs between the reorganization company and the guarantor (i.e., the effect of the change of the principal obligation does not extend to the guarantor and the creditor can claim against the guarantor according to the amount of the original obligation and the due date). Article 440 of the Civil Act, which provides the effect of the interruption of prescription as to the guarantor, is not a natural provision derived from the subsidiary nature of the guaranteed obligation, but is a policy provision to prevent the extinction of the guaranteed obligation separately for the protection of the creditor, and therefore, Article 440 of the Civil Act does not apply to the Company Reorganization Act (Supreme Court Decision 93Da47431 delivered on January 14, 1994).

Therefore, it is reasonable to interpret that, in cases where the period of the principal obligation has been extended due to the extension of the period of the principal obligation in the reorganization procedure by consistent with the period of the principal obligor’s prescription, the extinctive prescription of the guaranteed obligation has been interrupted pursuant to Article 440 of the Civil Code, and the period of the principal obligation has expired from the time when the period of the principal obligation became due (if it is not interpreted, the obligation of the principal obligor still exists, but the obligation of the principal obligor may be extinguished by the extinctive prescription first. Even if it is not reorganization procedure, it is unfair that the period of the repayment of the principal obligor’s obligation would be postponed in advance to the guarantor. In light of the fact that the principal obligor pays the principal and interest in accordance with the reorganization program, if the principal obligor pays the principal and interest, it shall be deemed that the extinctive prescription of the principal obligation

In this case, it is reasonable to view that the period of extinctive prescription of the principal obligation was extended according to the reorganization program as shown in the attached Table 1, and since the incorporation of the principal obligation was regularly repaid at the due date, the extinctive prescription of the principal obligation did not run. Such interruption of the extinctive prescription is effective against the Defendant who is the guarantor pursuant to Article 440 of the Civil Act (i.e., the period of extinctive prescription against the principal obligor, even if the extinctive prescription against the principal obligor is in progress separately, as in this case, as long as the principal obligor has repaid the principal obligation on a regular basis, the interruption effect of the extinctive prescription may affect the principal obligor as long as the principal obligor has discharged the principal obligation on a regular basis as in the foregoing case). Therefore, the

C. Sub-committee

As seen earlier, the Plaintiff sent a peremptory notice to the Defendant on May 10, 2005 on the overdue interest on the guaranteed obligation and received it on May 12, 2005. Since it is apparent in the record that the Plaintiff filed the instant lawsuit claiming damages for delay against the guaranteed obligation on November 9, 2005, which was six months from the date of delivery of the said peremptory notice to the Defendant, and thus, damages for delay by 10.25%, which was the rate of the above reduced rate of 10.25%, which was the five years before May 13, 2000, which was the date of delivery of the said peremptory notice to the obligor, has not yet been expired.

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 3,46,979,549, which is 10.25% of the above 10.25% from May 13, 2000 to July 10, 2005 that the plaintiff sought with respect to the above guaranteed debt after the due date, and the damages for delay calculated at the rate of 5% per annum under the Civil Act from November 19, 2005 to January 18, 2007, which is the day after the delivery of a copy of the complaint of this case, to the day after the delivery of the complaint of this case, as to the existence and scope of the defendant's guaranteed debt.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance which partially different conclusions are unfair, the part against the defendant who ordered the defendant to pay the above money in excess of the above money shall be revoked, the plaintiffs' claims corresponding to the revoked part shall be dismissed, and the defendant's remaining appeal shall be dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Dong-dae (Presiding Judge)