Korea Credit Guarantee Fund (Law Firm Hun-Ba, Attorneys Yu Byung-il et al., Counsel for the defendant-appellant)

Small and Medium Business Corporation (Attorney Cho Sung-sung, Counsel for defendant-appellant)

Incheon District Court Decision 2010Da3420 Decided June 17, 2010

July 14, 2011

1.The judgment of the first instance shall be modified as follows:

A. The Defendant shall transfer to the Plaintiff the claim for dividend payment of KRW 7,975,892 among the claims listed in the attached list, and notify the Plaintiff that the said claim was transferred to the Plaintiff with respect to the cash accounting official other than the revenue and expenditure of the Incheon District Court (the revenue and expenditure officer other than the revenue and expenditure

B. The plaintiff's remaining claims are dismissed.

2. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall transfer to the plaintiff the claim for dividend payment of KRW 12,061,603 among the claims listed in the attached list, and give notice to the plaintiff that the above claim was transferred to the plaintiff with respect to the public official in charge of cash other than the revenue and expenditure of the Incheon District Court.

2. Purport of appeal

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

1. Basic facts

A. On February 22, 2005, the Plaintiff issued a credit guarantee certificate with the non-party 1 (the non-party in the judgment of the Supreme Court) and the non-party 2’s joint and several surety, which covers the guaranteed principal of KRW 276,250,000 (the guarantee rate of KRW 85%) out of the amount the Defendant seeks to borrow from the Defendant (hereinafter “the primary guarantee of this case”). The Defendant loaned the said guarantee certificate of KRW 325,00,000 to the video text as security (hereinafter “the instant loan”).

B. On June 19, 2006, the Plaintiff issued a credit guarantee certificate with the guarantee principal of KRW 49,300,000, out of the amount that Non-Party 1 and 2 wants to borrow from the National Bank (hereinafter “the second guarantee”), and the National Bank loaned the said guarantee amount of KRW 58,00,000 to the Video Cable as security.

C. As a credit guarantee accident occurred on September 12, 2006, the Defendant and the National Bank claimed the Plaintiff to discharge the guaranteed obligation.

D. (1) On September 18, 2006, the Plaintiff, a joint and several surety, executed a provisional attachment execution with the claim amounting to KRW 325,50,000 on the non-party 1, the non-party 1, the non-party 1’s address omitted (hereinafter “the instant real estate”). (=276,250,000 won with the principal of the instant primary guarantee + KRW 49,300,000 with the principal of the instant secondary guarantee).

(2) The Defendant anticipated that the Plaintiff would pay 276,250,000 won of the loan principal of this case to 325,00,000 won, which is 85% of the loan principal of this case, according to the first guarantee of this case. On October 20, 2006, the Defendant executed a provisional attachment (hereinafter “the first provisional attachment of this case”) with the amount of 5,285,900 won (i.e., the loan principal of this case exceeding 325,000 won + overdue interest of 48,750,000 won, which is 15% of the loan principal of this case, and overdue interest of 6,535,90 won).

(3) The Plaintiff intended to perform only the guaranteed obligation amounting to 50% of the principal of the instant loan and not to perform the remainder of 35%, and the Defendant issued an advance notice on May 4, 2007 with respect to the instant real estate (i.e., KRW 133,271,250 of the loan principal of the instant case + KRW 113,750,000 of the overdue interest + KRW 19,521,250 of the loan principal of the instant case’s loan amount + KRW 325,00 of the overdue interest + KRW 113,750 of the loan principal of the instant loan amount of KRW 325,00 which the Plaintiff refused to perform the guaranteed obligation).

E. On November 28, 2006, the Plaintiff paid 49,956,108 won for the principal and interest of loan under the instant secondary guarantee to the National Bank. On June 22, 2007, the Plaintiff paid 170,624,999 won to the Defendant (i.e., KRW 162,50,000 amounting to 50% of the principal of the instant loan + interest KRW 8,124,999) (as seen earlier, the Plaintiff refused to perform the guaranteed obligation amounting to 35% of the principal of the instant loan).

F. The plaintiff applied for a payment order against the non-party 1, a joint guarantor, to the Incheon District Court Branch Branch of 2007Da5969, Nov. 15, 2007, for the payment of indemnity amounting to KRW 336,567,467 and KRW 49,956,108 among them, from November 28, 2006 to the plaintiff, KRW 170,624,99 from June 22, 2007 to March 15, 2008, the delivery date of the original copy of each payment order, and KRW 20% of the annual amount from the next day to the date of full payment order. The payment order was issued by the above court, which became final and conclusive on March 30, 208.

G. As to the instant real estate, in accordance with the application for voluntary auction by the National Bank, which is the mortgagee of the right to collateral security, the Incheon District Court’s branch branch office around 2007 and around 2683. On November 23, 2007, the auction procedure of real estate was commenced. On November 23, 2007, the distribution schedule was prepared to distribute the remaining amount of KRW 170,60,000 to the National Bank, the creditor of the first priority, out of KRW 236,840,549, which is the amount to be actually distributed after deducting the execution expenses from the open date of distribution (hereinafter “instant date of distribution”), and the distribution schedule was finalized.

The sum of the maximum debt amount for the dividends of the voting creditors included in the main text shall be 59,29,294,294,065,665,240,549, including the sum of 45,186,915, 915, 757, and the sum of the maximum debt amount for the dividends of the voting creditors, 325,550,556,838, 188,557, 1502,331,954, 459, 456,240,549

H. On April 9, 2009, Incheon District Court Decision 2009Kadan1916, the execution court deposited the amount of 22,331,954 won against the defendant as the amount of non-determined claim by provisional attachment creditor, and the plaintiff was decided to take provisional measures against debt collection and provisional disposition against the defendant's claim against the Republic of Korea as of April 9, 2009.

I. Since then, the lawsuit for return of unjust enrichment (final instance case: Supreme Court Decision 2008Da78309 Decided December 24, 2008) that was initiated between the plaintiff and the defendant with respect to the part equivalent to 35% of the amount for which the plaintiff refused to discharge the guaranteed obligation to the defendant was concluded against the plaintiff, the plaintiff paid 128,797,595 won to the defendant on February 24, 2009 (=325,000,000 won of the principal of the loan of this case + interest of KRW 113,750,000 + interest of KRW 15,047,595).

(j) Meanwhile, the Defendant filed a payment order (hereinafter “instant payment order”) against Nonparty 1 and Tex with the Seoul Southern District Court Decision 2009Da3310, Mar. 12, 2009, with respect to KRW 91,590,486 and KRW 34,89,186 among them, jointly and severally with the Defendant, for KRW 91,590,486 and KRW 34,89,186 from February 24, 2009 to May 5, 2009, the delivery date of the original copy of the payment order, and KRW 20% from the following day to the date of full payment. The instant payment order was finalized on May 20, 209.

[Ground of recognition] Facts without dispute, Gap 1 through 14 (including virtual numbers), Eul 1,6,7,8,10 (including virtual numbers), the purport of the whole pleadings

2. The plaintiff and the defendant's assertion

A. The plaintiff's assertion

Of the Defendant’s total claim amount of KRW 188,57,150, the amount of KRW 133,271,250,250, the claim amount of the second provisional attachment of this case, among the amount of KRW 188,57,150, the Defendant’s claim amount of the second provisional attachment of this case, was extinguished on February 24, 2009 by the Plaintiff’s performance of the guaranteed obligation to the Defendant, and thus, the amount of dividends of KRW 133,271,250 to the Defendant’s claim amount of the second provisional attachment of this case is unfair. Accordingly, the Defendant is obligated to return the amount of dividends of KRW 1

B. Defendant’s assertion

Until November 23, 2007, the date of distribution of this case, the plaintiff paid only 113,750,000 won with interest equivalent to 50% of the loan principal of this case among 325,00,000,000 won, and did not pay 113,750,000 won equivalent to the remaining 35%, to the defendant, until November 23, 2007, the plaintiff received the distribution as to the above 113,750,00 won on the date of distribution of this case. The plaintiff who received the distribution as above did not have the right to claim return of unjust enrichment to the defendant, and the defendant received the distribution with the claim amount of provisional seizure calculated accurately as of the date of distribution. Thus, since the distribution schedule was lawfully prepared and the distribution schedule itself does not have any substantive defect, the distribution to the defendant pursuant to the confirmed

3. Determination

A. Whether the Plaintiff acquired the right of reimbursement of KRW 113,750,000 from the loan principal of this case to Nonparty 1 325,00,000, which corresponds to 35% of the loan principal of this case

According to the evidence evidence Nos. 12 and 12 of this case, it is acknowledged that the plaintiff and the non-party 1 and 2, a joint guarantor, have entered into a credit guarantee agreement with the purport that " even if there are many creditors of credit guarantee for the principal of the return fund, they would be repaid before the repayment of the return fund, even if there is no notification or peremptory notice from the return fund," and that "the guarantor would be reimbursed before the return fund's repayment of the guaranteed obligation." The defendant requested the plaintiff to discharge the guaranteed obligation according to the first guarantee of this case. According to the above facts, even though the plaintiff paid only 170,624,999 won to the defendant for the claim for the performance of the guaranteed obligation under the first guarantee of this case, it is not illegal for the plaintiff to acquire the right to indemnity against the non-party 1,13,750,000, the balance of the guarantee under the first guarantee of this case as well as the non-party 1,500,000 won.

B. Whether all of the preserved claims of the second provisional seizure of this case were extinguished due to the repayment by the Plaintiff on February 24, 2009

On the other hand, the first provisional attachment of this case was made by the plaintiff for the first time under the first guarantee of this case. The amount equivalent to 85% of the loan principal of this case is expected to be subrogated by the plaintiff, and the amount equivalent to 15% of the loan principal of this case and its interest was claimed, and the plaintiff refused to pay the guaranteed debt amount equivalent to 35% of the loan principal of this case. The second provisional attachment of this case was made by the defendant for the additional amount equivalent to 35% of the loan principal of this case and its interest as the claim amount. However, the first and second provisional attachment of this case was merely divided into the claim amount in order to compensate the loan loan of this case as part of the loan credit of this case, and it was not different from the claim amount of the first and second provisional attachment of this case as the claim amount, and the first and second provisional attachment of this case is not divided into the claims with no guarantee claim of the plaintiff.

Therefore, KRW 128,797,595, which the Plaintiff paid to the Defendant on February 24, 2009, is effective as a repayment of the amount equivalent to 50% of the principal of the loan of this case that the Defendant had not been repaid by Nonparty 1, and as a part of its interest, the effect of the repayment cannot be deemed to extend only to the claim amount of the second provisional seizure of this case. Thus, insofar as part of the loan of this case has not been repaid, the provisional seizure of this case 1 and the second provisional seizure is valid within the scope of the loan of this case that has not been repaid.

(c) The fixed amount of the defendant's preserved claim and details of the cultivation price following it;

(1) When the execution court deposits the amount of dividends to the creditor of provisional seizure, and the existence and scope of the creditor of provisional seizure becomes final and conclusive, the adjusted amount out of the amount of dividends deposited again on the basis of such fixed amount shall be paid to the creditor of provisional seizure and the remaining amount shall be distributed to other creditors (Article 161(2)1 of the Civil Execution Act). In a lawsuit on the merits of provisional seizure, where some of the preserved claims did not exist from the beginning or it is final and conclusive before the date of distribution, the amount of the preserved claims shall be deemed as the date of distribution and only the adjusted amount out of the deposited amount shall be paid to the creditor of provisional seizure after adjusting the amount of dividends to the amount of claims occurred until the date of distribution. However, as in this case, if some of the preserved claims of the defendant have been extinguished on February 24, 2009, which is after the date of distribution, it is impossible to determine the amount of the preserved claims of the defendant on the basis of the date of distribution. Thus, the remaining amount of the defendant's preserved claims shall be deemed as the date of the defendant's claim.

(2) As seen earlier, the Defendant’s claim against Nonparty 1 based on the payment order of this case was 91,590,486 won and 34,89,186 won among them, 12% per annum from February 24, 2009 to May 5, 2009, and 20% per annum from the following day to the full payment date. Thus, the Defendant’s claim against Nonparty 1, including delay damages until May 20, 209, including 92,691,96 won (= 91,590,486 won + 814,63 won + 34,89,186 won x 0.12 x 71/365 x 765 x less than won x 365 x 2865 x 465 x 285 x 165 x 465 x 2865 x 465 x 165 x 5465 x 5 x 965 x .2465 x .25 x

The amount to be distributed to the outstanding creditors in the main sentence of this paragraph shall be 325,550,000,532,730,38,556,838 + 7,975,975,892,31,954-9,082,962,91,91,961, 96113, 248,994-9,954-9,082,960, 960, 4525,351, 757 + 107,068 total sum of 463,428,4666, 249, 5490,5490

(1) The court below held that the plaintiff's claim amount against the creditor of provisional seizure should be calculated by calculating the interest until the above reference date if the amount of the defendant's claim is calculated on the basis of the payment order of this case, which is not the date of distribution of this case. However, the standard for calculating the amount of the plaintiff's claim against the creditor of provisional seizure should not be based on the claim amount even if the amount of the claim exceeds the actual claim amount stated

D. Scope of unjust enrichment

Thus, the defendant has a duty to make a return of unjust enrichment and transfer KRW 7,975,892 out of the bonds listed in the separate sheet to the plaintiff, and notify the plaintiff that the above bonds were transferred to the plaintiff to the Republic of Korea. Since the defendant has suffered damages equivalent to KRW 7,975,892 (= KRW 46,532,730 to be actually distributed to the plaintiff - the previous amount of dividends to the plaintiff 38,56,838).

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.

[Attachment]

Judges Park Jin-soon (Presiding Judge)