Gyeonggi Credit Guarantee Foundation (Law Firm Hann, Attorneys Choi short-chul et al., Counsel for defendant-appellant)

Defendant

March 8, 2019

Seoul Central District Court Decision 2017Da5205786 Decided July 20, 2018

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 43,985,249 won and 43,984,812 won among them with 12% per annum from October 23, 2017 to March 22, 2019, and 15% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit are borne by the Defendant.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 43,985,249 won and 43,984,812 won with interest of 12% per annum from October 23, 2017 to the delivery date of a copy of the complaint of this case, and 15% per annum from the next day to the full payment date.

1. Basic facts

With respect to this part, the relevant part of the reasoning of the first instance judgment shall be cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the cause of the claim

According to the above facts, the defendant is obligated to pay to the plaintiff damages for delay at each rate of 43,985,249 won (43,984,812 won for unrepaid subrogation + 437 won for unrepaid delay) and 43,984,812 won for unrepaid subrogation as of October 23, 2017, which is the date of subrogation, to dispute over the existence or scope of the defendant's duty of performance from October 23, 2017 to March 22, 2019, which is the date of the decision of the court of first instance, for delay interest rate of 12% per annum and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

3. Judgment on the defendant's assertion

A. The defendant's assertion

Under rehabilitation procedures (Seoul Rehabilitation Court 2017 Ma100140), 16.8% of the amount of subrogation and interest prior to commencement shall be paid in cash, but the remainder 83.2% of the amount shall be converted into equity in lieu of repayment of rehabilitation claims, and as such, the Defendant’s guaranteed liability shall also be reduced at the same rate as that of the non-party company’s rehabilitation plan.

(b) Markets:

(1) We examine the effect of the rehabilitation plan against the non-party company on the defendant who is the guarantor.

According to Article 250 (2) 1 of the Debtor Rehabilitation and Bankruptcy Act, the change of the right that arises from the approval of the rehabilitation plan for the rehabilitation debtor does not, in principle, affect the guarantor of the rehabilitation debtor. The Regional Credit Guarantee Foundation applied to the plaintiff does not have any special provision that reduces the guarantor's obligation at the same ratio as the rehabilitation plan for the debtor, such as Article 37-3 of the Korea Technology Finance Corporation Act and Article 30-3 of the Credit Guarantee Fund Act

Therefore, the defendant cannot oppose the plaintiff on the ground that the primary obligation was modified or reduced in the rehabilitation plan.

(2) However, since the repayment of the principal obligation is also effective against the guarantor, it is deemed that the issuance of new shares through debt-equity swap can be deemed as the repayment of the principal obligation.

Where it is prescribed in the rehabilitation plan to make a conversion into investment in lieu of the repayment of rehabilitation claims, the surety obligation of the guarantor shall be deemed to have been repaid within the limit of the amount of rehabilitation claims to be paid in lieu of the amount of rehabilitation claims according to the conversion into investment after evaluating the market price of new shares acquired by the rehabilitation creditor as of the date when the issuance of

In addition, in cases where rehabilitation creditors assess the value of a debt-to-equity swap to determine the scope of the extinguishment of the guaranteed obligation by calculating the amount substantially satisfied through a debt-to-equity swap conducted by the rehabilitation company, the claims and the burden of proof on the value of the company’s corporate value or the value of the share of the stocks into equity swap are the defendant who asserts that the guaranteed obligation has been extinguished by the debt-to-equity swap (see Supreme Court Decision 2009Da85830, Mar.

In light of the above legal principles, even if the non-party company issued new shares according to the conversion of investment in the rehabilitation plan, barring evidence to prove that the plaintiff acquired profits equivalent to the market price of the shares by acquiring the shares that can be disposed of, it shall not be deemed that the principal debt was repaid as the amount of the converted rehabilitation claim, and the Defendant’s guaranteed obligation was extinguished

Therefore, the defendant's argument is without merit.

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 which partially different conclusions are unfair, the plaintiff's appeal is partially accepted and the defendant is revoked, and the defendant is ordered to pay the above amount additionally recognized in the trial, and the remaining appeal of the plaintiff is dismissed. It is so decided as per Disposition.

Judge Shin Han-hee (Presiding Judge)