[1] In a case where a bank which is a creditor financial institution under the Corporate Restructuring Promotion Act acquires bills and debentures with the money entrusted by a truster company under the Securities Investment Trust Business Act, whether the said bills and debentures constitute bonds subject to postponement of exercising bonds under the Corporate Restructuring Promotion Act and a resolution for readjustment of claims (affirmative)

[2] In a case where a creditor financial institution seeks payment on the basis of a bill or bond whose maturity is due and due date for repayment before a creditor financial institution’s creditor financial institution’s creditor financial institution’s creditor financial council’s postponement of the exercise of its claim and resolution for readjustment of claim, whether the above resolution

[3] Whether a resolution by the creditor financial council organized under the Corporate Restructuring Promotion Act is legally binding (affirmative)

[4] Whether recognizing the legal binding force of a resolution of the creditor financial institutions council organized under the Corporate Restructuring Promotion Act is a violation of the essential contents of the property rights guaranteed by the Constitution of the creditor financial institutions that did not attend the resolution or expressed their objection (negative)

[1] Under Article 2 subparagraph 1 of the Corporate Restructuring Promotion Act, the term "creditor financial institution" is defined as a person who has extended credit to the pertinent company, and under Article 2 subparagraph 6 (b) of the same Article, the term "credit extension" is defined as "credit extension as stipulated by the Financial Supervisory Commission from among the purchased bills and bonds," and Article 4 of the Financial Supervisory Commission's attached Table provides that both bank accounts or trust accounts and bank bonds shall be included in the scope of credit extension in the case of a creditor financial institution. Article 26 of the same Act provides that the determination and extension of the grace period for the exercise of credit, the formulation of the plan for readjustment of claims or extension of credit, and the matters related thereto shall be deliberated and decided by the Council pursuant to the Corporate Restructuring Promotion Act and the Financial Supervisory Commission's regulations, which is composed of creditor financial institutions under the same Act shall include the bills and bonds acquired through

[2] A creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's creditor financial institution's credit extension

[3] In light of the provisions, legislative intent, etc. of Articles 17, 27, and 28 of the Corporate Restructuring Promotion Act, a resolution of the council of creditor financial institutions organized under the same Act shall not be legally binding on all creditor financial institutions, and shall also be held by the creditor financial institutions which have not attended the resolution or expressed objection to the resolution.

[4] It is true that the creditor financial institutions, which were organized under the Corporate Restructuring Promotion Act, did not attend the resolution by the resolution in accordance with the authority given under the same Act, or expressed their dissenting opinions, are subject to restrictions in exercising their claims against their will. However, inasmuch as Articles 29 and 30 through 33 of the same Act, which were enacted for public necessity, provide for creditor financial institutions to object to the deliberation and resolution of the above council and to escape from the restriction of the resolution, it cannot be deemed that recognizing the legal binding force of the above council's resolution is an infringement of the essential contents of property rights guaranteed under the Constitution.

[1] Articles 2, 24, and 26 of the Corporate Restructuring Promotion Act / [2] Articles 2, 24, and 26 of the Corporate Restructuring Promotion Act / [3] Articles 17, 24, 27 (1) and (2), 28 (3), and 30 (1) of the Corporate Restructuring Promotion Act / [4] Article 37 of the Constitution of the Republic of Korea; Articles 27 (2), 28 (3), 29, 30, 31, 32, 33, and 36 of the Corporate Restructuring Promotion Act

Han Bank Co., Ltd. and three others (Law Firm Kim, Kim & Lee, Attorneys Gyeong-jin et al., Counsel for the plaintiff-appellant)

KS Global Co., Ltd. (Law Firm Namsan, Attorneys Hah Ho-ho et al., Counsel for the plaintiff-appellant)

September 18, 2003

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay 6,00,000 won to the plaintiff Han Bank and 3,000,000 won among them, 60,000 won per annum from March 15, 2003 to 3,00,000, 6% per annum from March 18, 2003 to the date on which the copy of each complaint of this case was served, 25% per annum from the next day to the date on which the copy of each complaint of this case was served, 18,00,000 won to the plaintiff Han Bank and 9,00,00,000,000 won among them and 3,00,000,000 won per annum from the next day to 6,000 won per annum from 3,000,000 won per annum from the next day to 6,000 won per annum from 3,000 won per annum from 20,000 won per annum from 208.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by adding the whole purport of the pleading to the statements in Gap evidence 1-1 through 5, evidence 1-2-1 through 4, evidence 3, evidence 4, evidence 5-1, evidence 5-2, evidence 6-1, evidence 1-2, evidence 3-1 through 3, and evidence 4-9.

A. (1) The Plaintiff Han Bank Co., Ltd. (hereinafter referred to as “I Bank”) was entrusted by Nonparty Hyundai Investment Trust Management Co., Ltd. (hereinafter referred to as “IS”) with various investment trusts in accordance with the Securities Investment Trust Business Act from Hyundai Investment Trust Management Co., Ltd. (hereinafter referred to as “SIS”) and the Plaintiff Han Bank was entrusted with various investment trusts in accordance with the Securities Investment Trust Management Business Act from Hyundai Investment Trust Management Co., Ltd., Ltd. (hereinafter referred to as “SIS”), Nonparty ELD Investment Trust Operation Co., Ltd., Nonparty ELD Investment Trust Operation Co.,

(2) The Plaintiffs were endorsed, transferred, or purchased promissory notes and non-guaranteed corporate bonds issued by the Defendant, as shown in the separate sheet Nos. 1 and 2, with money trusted according to the management instruction of each relevant trust company.

(3) After that, the Plaintiffs claimed the payment of each of the above bills against the Defendant on the payment date of each of the above bills, and the repayment of each of the above bills on the repayment date of each of the above bonds, but the Defendant rejected the payment.

B. (1) On the other hand, when the plaintiff Han Bank, as the principal creditor bank of the defendant, judged that it is difficult to repay the next wage without financial assistance or any abnormal loan from the outside as a result of a regular evaluation of the defendant's credit risk under Article 9 of the Corporate Restructuring Promotion Act (hereinafter referred to as the "Act"), the plaintiff Han Bank notified the convocation of creditor financial institutions' meetings on March 12, 2003 in order to have creditor financial institutions jointly manage it as part of its measures. Accordingly, the creditor financial institutions' council at the creditor financial institutions' council at the 19th of the same month (hereinafter referred to as the "Council"), recognized the defendant as an enterprise with insolvency signs under subparagraph 5 of Article 2 of the Act, the defendant started joint management procedures pursuant to Article 1, 10, 12, and 13 of the Act, and suspended the credit extension amount and the contents of the attached Table No. 2 subparagraph 6 of the Act and Article 4 of the Regulation on the Supervision of Financial Institutions from March 19, 2003 to 8.

(2) After that, according to Daom’s Daom’s delay period, the Council held a third council meeting on June 17, 2003 pursuant to Article 17(1) of the Act, with the consent of at least 80% of the total amount of credit extended and secured claims, each of which shall be deferred until December 31, 2007, with respect to the subject credit amount corresponding to the credit extension amount as of March 11, 2003. However, the Plaintiffs did not attend the above resolution.

(3) On the other hand, on March 12, 2003, the Financial Supervisory Commission Chairperson, as the principal creditor bank, requested the suspension of the exercise of claims until June 19, 2003, when the first conference is convened at all creditor financial institutions and trust companies, including the plaintiffs, pursuant to Article 14(1) of the Act.

2. Payment obligations of bills and debentures;

According to the facts stated in the above 1. A. The defendant is a company that issued promissory notes or corporate bonds and has a duty to pay each amount stated in the purport of the claim to the plaintiffs as requested by the plaintiffs among the above promissory notes and amount of bonds, unless there are special circumstances.

3. Deferment of exercising claims and the effect of resolution for readjustment of claims;

A. The parties' assertion

On the other hand, the defendant, as described in the above 1.-B., made a decision at the Council to suspend the exercise of the bill of this case and company bonds until June 18, 2003 in accordance with the Act, as stated in the above 1.B., and again made a resolution of re-resolution of claims with the purport that the redemption date of the bill of this case and company bonds shall be extended until December 31, 2007. Thus, the plaintiff cannot comply with the plaintiff's claim until December 31, 2007.

With respect to the above argument by the plaintiff, the plaintiff asserts that (1) the bill and corporate bonds of this case are acquired by the plaintiffs under the direction of the truster companies under the Securities Investment Trust Business Act and constitute trust property, and (2) even if they are bonds subject to the resolution of the Council, since the maturity of the bill which became due prior to the above resolution and the redemption date of the above company bonds have already been exercised by the plaintiffs, they do not have the effect of the resolution, and (3) even if the bill and corporate bonds of this case have the effect of the above resolution, the above resolution does not have any legal grounds for recognizing the binding force, and (4) if the above resolution is recognized, it would result in the failure to attend the above resolution including the plaintiffs, or infringing on the property rights guaranteed by the Constitution against the creditor financial institutions that expressed their opposing intent, and thus the resolution cannot be restricted by the above resolution.

B. Determination by issue

(1) Bills and debentures acquired with the entrusted property, and bonds subject to the resolution of this case

Therefore, with respect to whether the bill and corporate bonds of this case, which the plaintiffs acquired with the money entrusted by a truster company under the Securities Investment Trust Business Act, are bonds that the Council cannot postpone the exercise of claims or adjust the bonds, as prescribed by the law, and in Article 2 subparagraph 1 of the Act, "creditor financial institutions" shall be defined as "credit extension" among the bill and bonds purchased in Article 2 subparagraph 6 (b) of the Act, and "credit extension" shall be defined by the Financial Supervisory Commission. Article 4 of the Financial Supervisory Commission Regulations provides that where a creditor financial institution is a bank, all the bill and corporate bonds purchased in the bank account or trust account or trust account shall be included within the scope of credit extension. Article 26 of the Act provides that the decision and extension of the grace period for the exercise of claims, the formulation of the plan for readjustment of claims or credit extension, and the matters related thereto shall be deliberated and decided by the Council. Accordingly, it is reasonable to view that the creditor financial institution may include the bill and corporate bonds of this case, which are acquired through the trust account and resolve the bonds of this case.

(2) The due date and due date of the bill and the validity of the resolution of the Council;

Next, since the plaintiffs exercised bills and bonds of this case which became due and due and payable prior to the above resolution of the Council, it is difficult to postpone the exercise of claims and to re-resolution them, or to reach the validity of the resolution of the Council, there is no explicit resolution that the Council shall include bills and bonds which have become due and due and due and due and due and due to the delay of the exercise of claims, or claims subject to re-resolution of claims, and it seems that re-exercise of the exercise of claims is contradictory to the wording. However, Articles 2 and 24 of the Act provide that all creditor financial institutions as members of the Council shall participate in joint management and creditor financial institutions shall be excluded from the scope of claims subject to postponement of the exercise of claims and re-resolution of claims. It is reasonable to include the above bonds which are not yet paid without due and due and due to the expiration of maturity in the council's resolution of the Council's resolution of the Council's resolution of the creditor financial institutions, and it can be seen that all the claims can not be paid for the purpose of rehabilitation and re-resolution of the company.

(3) Legal binding force of the resolution of the Council

Then, as to whether the resolution of the Council is binding on the creditor financial institutions that did not attend the resolution or expressed an opposing opinion, including the plaintiffs, there is no legal basis for recognizing the legal binding force of the resolution of the Council. Rather, Articles 24 and 30(1) of the Act provide that if the creditor financial institutions sell their claims to a third party after the notice of convening the Council, they shall obtain a letter of commitment to comply with the provisions of the Act from the third party. Article 24 of the Act provides that if the creditor financial institutions sell their claims to a third party on the premise that the resolution of the Council is invalid, the resolution of the Council shall be deemed to have been based on the provision of Article 7(1) of the Act that provides that if the creditor financial institutions are not creditor financial institutions, a third party shall be deemed to have the legal effect of the resolution of the Council under the Act. Article 30(2) of the Act that provides that the creditor financial institutions shall not be held liable for damages due to their failure to comply with the resolution despite having attended the Council and expressed their dissenting opinion, all other creditor financial institutions shall not be held liable for damages.

(4) Whether a resolution passed by the Council is unconstitutional

Finally, it is true that the above creditor financial institutions are subject to restrictions on the exercise of their rights against their will by taking custody of the resolution of this case under the authority of the creditor financial institutions which did not attend the resolution of the council or expressed their dissenting opinions when recognizing the binding force of the resolution of the council under the law above. However, such property rights may be restricted by the law for public necessity unless they infringe on their essential contents (Article 37(1) and (2) of the Constitution). In light of the legislative purport of this Act, it is clear that the law was established for public necessity. Meanwhile, it is hard to say that the law was established for the sake of protecting the creditor financial institutions to request the council to purchase their own claims within seven days from the date of the resolution of the council, or that the creditor financial institutions which expressed their dissenting opinions to sell them, and that the council's resolution of the resolution of the council may not be subject to restrictions on the exercise of rights by requesting for the resolution of the council under the provisions of Articles 30 through 33 of the Act, and that the resolution of the council may not be subject to such restrictions.

(3) Sub-determination

Therefore, since the bill and corporate bonds of this case are subject to the suspension of the exercise of the rights of the Council in this case and the resolution for the readjustment of claims, the defendant can refuse the plaintiffs' claims until December 31, 2007 according to the above resolution. Thus, the defendant's above assertion is reasonable and the plaintiffs' above assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' claims of this case against the defendant seeking the present performance based on the premise that the due date has already arrived are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges Yan Jin-hun (Presiding Judge)