209Na54784 Delivery of Shares

1. 00

Seoul

2. △△△.

Mayang-si

3. Stambling00

Ansan-si

4. △△;

Seoul

5. This case.

Seoul

6. Maximum 00

Seoul

7. Kim 00

Incheon

[Judgment of the court below]

0. Surety Insurance Co., Ltd.

Seoul

Protection of representative director 00

Bilateral (000000 - 000000)

Seoul

Law Firm Jingo (U.S.)

Attorney Strict-han

Seoul Central District Court Decision 2007Gahap9446 Decided May 28, 2009

April 21, 2010

June 9, 2010

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

A. The defendant, from the plaintiffs, △△△△△△ ( Address: Seoul, resident registration number: 000 - 000 - 0000), 55,804 and 268 won from October 13, 1999 to 14, 707, and 070 won from October 22, 1999 to 56, 149, and 415 won from December 29 to the day of complete payment; 15% of the share certificates from December 25, 2004 to the day of complete payment; 37, 463, 426 won from the defendant to November 25, 2003 to the day of complete payment; and 1% of the share certificates from the defendant's defendant's share certificates to the defendant's 37, 463, 426 won, and each of them are 5% of the share certificates from November 25, 2003 to the day of full payment.

B. The plaintiffs' remaining claims are dismissed.

2. 2/3 of the part arising from the participation in the litigant’s total costs are borne by the Plaintiffs, the remainder is borne by the Intervenor, and 9/10 of the remainder is borne by the Plaintiffs, and the remainder is 3. 1-A, respectively borne by the Defendant.

1. The plaintiffs' claims and purport of appeal

The part of the judgment of the first instance against the plaintiffs shall be revoked.

As to the plaintiffs 114, 884, 462 won and 46,479, 237 won among them, the defendant

From October 13, 1999, 12, 255, and 892 won, 56, 149, 333 won from October 22, 1999 to October 22, 199

J. 5% interest per annum from December 29, 2004 to the date of full payment, and Defendant’s subsidy.

The intervenor shall pay 14, 920, 990 won and the interest thereon 5% per annum from November 25, 2003 to the day of complete payment.

at the same time, to the plaintiffs, the share certificates listed in the separate sheet No. 1 shall be paid.

Doha (Provided, That the Plaintiffs are divided into the amount to be paid for each of the above amounts.

As specified, the detailed details are as shown in the separate sheet. The plaintiffs' share of the plaintiffs is as shown in the separate sheet.

2. The purport of the Defendant joining the Defendant’s appeal

제1심 판결을 취소한다. 피고는, 원고들, 권◆◆, 권□□, 조●●로부터 권△△이

1, 245, 312, 715 won among them, and 619, 312, and 715 won among them, shall be from October 13, 1999 to 130, 00, 000

For Won, from October 22, 1999, from April 22, 1999, from 496, 000, and from December 29, 2004

C. 19% interest per annum from the date of full payment to the date of the Defendant’s Intervenor’s 235,707,599, and

For this, 19% interest per annum shall be paid from November 25, 2003 to the date of full payment.

After being paid, we deliver to the plaintiffs the share certificates listed in the separate sheet No. 1.

1. Basic facts

A. On October 9, 1996, the Defendant entered into a bond guarantee insurance contract with △ Chemical and the Defendant’s bond guarantee insurance contract (at the time, the trade name was BYB Co., Ltd., but the change was made as of November 25, 1998) that guarantees the payment of principal and interest of the above company bonds to each bondholder in the issuance of the guaranteed bonds with Pacific Chemical Industry Co., Ltd. (hereinafter “Mari Chemical”). According to the bond guarantee insurance contract, as seen earlier, the Defendant would pay damages for delay calculated at a rate of 19% per annum with respect to the amount repaid by the Defendant under the above guaranteed insurance contract.

나. □□화학의 구상금 채무에 대한 연대보증 및 물상보증 ( 1 ) 피고보조참가인 ( 이하 ' 참가인 ' 이라 한다 ) 과 □□화학, ●● 특수사료 주식회사 ( 1996. 12. 28. 그 상호가 달재화학 주식회사로 변경되었다, 이하 ' ●●특수사료 ' 라 한다 ) 는 1996. 10. 9. 위 사채보증보험계약의 이행으로 인한 □□화학의 피고에 대한 구상금 채무 ( 이하 ' 이 사건 구상금 채무 ' 라 한다 ) 를 연대보증하였다 . ( 2 ) 참가인과 □□화학, 권◆◆, 권△△, 권□□, 조●● 등 6명 ( 이하 ' 질권설정자들 ' 이라 한다 ) 은 1996. 9. 30. 피고에게 이 사건 구상금 채무의 담보를 위해 그들 소유의 별지 제2목록 기재와 같은 주식회사 △△△△리조트 ( 당시 상호는 주식회사 ●● 농장이었으나 2007. 12. 14. 현재와 같이 변경되었다, 이하 ' ●●농장 ' 이라 한다 ) 주식 합계 12, 500주에 대해서 질권을 설정해 주었다 ( 위 주식 12, 500주는 위 질권 설정 당시 질권설정자들과 한△△, 최●●, 이●●, 이□□가 각 일부씩 소유하고 있었으나, 조 .

On December 28, 1998, the actual accounts were acquired by transfer of each of the shares owned by △△△△△, Balbale, Balbale, and △△△△△, and this was finally owned by the pledger. (3) On the other hand, on October 2, 1996, △ Industrial Bank concluded a payment guarantee agreement with △△△△△△△△△△△△△△△△△△△△△, and issued its payment guarantee certificate to the Defendant on the same day.

C. Payment of bonds guaranteed by the defendant

On April 9, 199, the Defendant paid 3,247,500,000 won to the bondholders each of the bonds interest rates of 82,50,000 won as of April 9, 1999 and 3,082,50,000 won as the bonds principal on October 9 of the same year pursuant to the above bond guarantee insurance contract.

D. The defendant's recovery of claims for reimbursement (1) is the defendant's collection of claims for reimbursement of reimbursement from the bank of △ Industries on May 14, 1999 and July 9, 199 of the same year, respectively. 82, 500,000 won, and October 9 of the same year.

(2) The Defendant was paid KRW 1,00,000 in total, KRW 835,00,000, and KRW 1,000 in total, and KRW 22,00 in total, from △ Chemical on October 13, 199, KRW 900 in the same year, and KRW 00 in the same year.

130,000,000 won in total were collected respectively. (3) Meanwhile, the Defendant collected the amount of KRW 1,030,000 from △ Chemical, the principal debtor of the above claim for indemnity, on the other hand, December 29, 200.

7,206, 748 won, and 37, 168, 519 won on December 31, 2001, and 136, 058, and 519 won on December 31, 2002, respectively, and thereafter, the company reorganization procedure for Pacific chemical was commenced. The defendant recovered 30, 126, 875 won on the principal of the claim for indemnity in accordance with the reorganization plan and exempted the remainder from liability.

(4) In other words, the Defendant collected 496,320,724 out of the sales price of the above 1,600 share of the pledger and the 1,00 share of 1,60 shares owned by the Intervenor from among the above shares of the pledger, and received 736,60,000 share sales price of the 1,600 share on November 25, 2003, and 496,320,724 out of the sales price of the above 1,00 share, and collected all the remainder of the principal and interest of the claim for indemnity of this case. (5) The Defendant collected all of the remainder of the principal and interest of the claim for reimbursement of this case. (5) The Defendant’s payment of the amount recovered as above with respect to the claim for reimbursement of reimbursement of the principal and the details of payment of expenses, interest, and principal as stated in the separate sheet.

(e) Collection of claims for indemnity against △ Industrial Bank;

Meanwhile, on August 28, 2003, △ Industrial Bank pursuant to the reorganization plan for △ Chemical, the primary debtor, pursuant to the reorganization plan.

The principal of the payment by subrogation was collected in 1,000,000,000 won for partial damages for delay, and the remaining damages for delay was exempted pursuant to the above reorganization plan.

바. 참가인 등의 주권인도청구소송 참가인은 선정당사자로서, 권◆◆, 권△△, 권□□, 조●●는 선정자로서 피고를 상대로, □□화학의 피고에 대한 구상금 채무가 모두 변제되어 소멸하였으므로 참가인 및 위 선정자들에게 이들이 피고에게 질권 설정하여 준 주식을 모두 반환하라는 내용으로 서울중앙지방법원 2002가합15981호 담보물건 반환의 소를 제기하였으나, 2005. 6 .

9. The decision against the Intervenor and the designated parties was rendered, and the Intervenor and the designated parties appealed from Seoul High Court No. 2005Na56584, but the designated parties except the Intervenor were dismissed during the appellate trial on the grounds that the aforementioned lawsuit was not based on the intent of the designated parties.

G. On March 13, 2007, the Plaintiffs entered into a bond transfer contract with the △△△△△△△△△△△△△△△△△△ on the part of the Plaintiffs to purchase the shares listed in the annexed Table 1 (hereinafter “the shares of this case”) for KRW 1,400,00,000, and the delivery of share certificates was based on the method of transferring the right to request a return (hereinafter “share transfer”). The △△△△△△△△△△△△△△△△△△△△ was notified the Defendant of the transfer of the right to request a return of the shares of this case on the same day, and around that time, the said notification was issued to the Defendant. (2) On June 4, 2007, the Plaintiffs paid KRW 62,967,689 as reimbursement for the claim for compensation of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△. The Defendant did not notify the Defendant of the share certificates of this case.

H. The △△ Party died on August 25, 2002, and the right △△ Party is the sole heir of the △ Party.

[Ground of recognition] In the absence of dispute, entry of Gap's evidence 1 through 7, 15, Eul's evidence 1 through 5, Eul's evidence 3 through 5, 7 through 11, 13, 20 through 22, 29, 30

2. The parties' assertion

A. The plaintiffs' assertion (1) that the defendant's claim against the defendant was fully satisfied, and the defendant must deliver the share certificates listed in the attached Table 1 to the plaintiffs who acquired the shares of this case from the △△△△△△△△. (2) Meanwhile, even if the △ chemical and the intervenor repaid the defendant over the share of this case's claim against the defendant, it is against the principle of good faith to exercise the right of indemnity against the △△△△△△△△ or its transferee by establishing the right of pledge upon the plaintiff's request.

(3) Even if the foregoing provision does not apply, the claim for reimbursement against the plaintiffs of △△△△, is divided into claims for reimbursement against the plaintiffs of △△△△△△, and the plaintiffs were transferred by the competent △△△△△△△△, so the plaintiffs are liable to pay the installment amount in proportion to the value of the shares. Accordingly, the defendant is obligated to deliver the share certificates listed in the attached Table 1 to the plaintiffs, at the same time, at the same time he receives the amount apportioned from the plaintiffs according to the value of the shares they acquired by the deceased △△△△△△, the sole heir of the deceased △△ Chemical, the competent heir

B. The Defendant’s assertion (1) that transferred the instant shares to the Plaintiffs is unlawful against the principle of prohibition of re-instigation, since the Plaintiff filed a lawsuit with the Seoul Central District Court 2002Gahap15981, which was the same subject matter of lawsuit before the instant lawsuit was brought against the Defendant before the instant lawsuit was brought and lost, and the Plaintiff, who was a specific successor after the closing of argument, voluntarily withdrawn the lawsuit while the appellate court was pending.

(2) In accordance with Articles 494(2) and 485 of the Civil Act, the △ Industrial Bank, △chemical, and intervenor, who partially repaid the Defendant’s liability for reimbursement, may exercise the right of subrogation on the shares of this case established in relation to the obligation for reimbursement of reimbursement, and the Defendant has the duty to keep the share certificates of this case on behalf of the Defendant.

C. The Intervenor’s assertion (1) that the instant shares were held in the name of the △△△△△△△△△△△△△, and the Plaintiffs received the instant shares from the pertinent △△△△△△, the title trustee, despite being aware of the title trust, and thus, the said shares were not effective. Moreover, the instant shares transfer was made without the issuance of the share certificate, and thus, are

( 2 ) ●● 특수사료는 자신에 관한 회사정리절차에서 면책되었고, □□산업은행은 미□화학과 사이에 1, 000, 000, 000원에 관한 지급보증약정을 체결함으로써 다른 연대보증인이나 물상보증인과 공동의 채무를 분담하지 않기로 하는 특약이 있었으므로 민법 제482조 제2항 제5호에 의하여 공동의 채무를 분담하여야 하는 연대보증인은 □□화학 , 참가인이고, 물상보증인은 □□화학, 참가인, 권◆◆, 권△△, 권□□, 조●●이고, 그 중 □□화학과 참가인은 자신의 부담부분을 초과하여 변제하였으므로, 나머지 물상보 증인 4명이 □□화학과 참가인의 초과 변제 금액 전부를 부담하여야 한다 . ( 3 ) 따라서 권△△의 제3취득자인 원고들과 권◆◆, 권□□, 조●●가 □□화학과 참가인이 자신들의 부담부분을 초과하여 변제한 금액 전부 및 이에 대한 연 19 % ( 피고 회사가 주채무자인 □□화학에게 부과하던 약정이율 ) 의 비율에 의한 지연손해금을 미□화학의 상속인인 권△△과 참가인에게 변제하기 전에는 피고로부터 이 사건 주권을 인도받을 수 없다 .

3. Determination on this safety defense

The reasoning for this Court’s explanation is that Article 240(2) of the Civil Procedure Act “B” is the same as the corresponding part of the first instance court’s judgment, and thus, it shall be accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act, on the grounds that Article 240(2) of the Civil Procedure Act provides that “The court shall accept the same as the corresponding part of the first instance judgment

4. Judgment on the merits

A. Whether the plaintiffs are legitimate successors of the shares of this case (1) The intervenor asserted that the rights to the shares are not acquired since the plaintiffs were transferred from the competent △△△△△, which is merely the title trustee of the shares of this case. However, there is no evidence to support that the competent △△△△△△ was entrusted with the shares of this case, and even if the competent △△△△△△ was a nominal truster, a third party who acquired the shares trusted in title from the trustee acquires the shares regardless of his/her good faith or bad faith (see Supreme Court Decision 63Da388, Sept. 19, 1963). The above argument is without merit.

(2) The intervenor also claims that the △△△△△△ has no effect to transfer the shares without possessing the share certificates, and thus, the transfer of shares is based on the issuance of the share certificates. The delivery of share certificates is not limited to the actual delivery of the share certificates, but includes delivery by simple delivery, possession revision, and transfer of the right to claim the return of the object. The fact that the plaintiffs received the shares of this case by the transfer of the right to claim the return of the object at the time of the transfer of the shares of this case is identical to the above, and therefore, the above assertion is without merit.

B. The defendant's duty to return the instant share certificates

According to the above facts of recognition, since the obligation of indemnity against the defendant of △ Chemical was fully repaid, the defendant is obligated to return the share certificates of this case to the plaintiffs, unless there are special circumstances.

However, in case where a claim is extinguished due to the repayment of a joint and several sureties or a surety to secure another's property, the relevant joint and several sureties or a surety who has a legitimate interest in the repayment of the claim is naturally subrogated to the obligee (Article 481 of the Civil Code). Therefore, △ Chemical, which is a partial repayment of the above claim amount, and the intervenor can exercise a pledge created on the shares of this case by subrogation of the defendant to the extent that

Meanwhile, Article 484 of the Civil Act provides that the obligee who has received a payment by subrogation of all the claims shall deliver to the subrogation a certificate of such claims and the security possessed by him/her. In cases where a part of the claims has been subrogated, the obligee shall enter such subrogation in the certificate of claims and be subject to supervision by the subrogation as to the preservation of the security possessed by himself/herself. Article 485 of the Civil Act provides that in cases where there is a person to be subrogated under Article 481 of the Civil Act, if the security by intention or negligence of the obligee is lost or diminished, the subrogated person shall be exempted from his/her liability to the extent that

In the event that there is a part of the reimbursement in excess of the portion of the reimbursement made by the intervenor, the right of subrogation can be exercised on the part of the reimbursement in excess of the portion of the reimbursement made by the plaintiffs who are the surety's surety pursuant to Article 482 (2) 5 of the Civil Act. Thus, even if the defendant has received all of his claims, he is obligated to keep the share certificates of this case for △ Chemical and Intervenor until he is reimbursed by the plaintiffs as follows. (In this case, as seen above, the defendant in this case was paid the full amount of the claim for reimbursement, and as seen above, the Pacific Industrial Bank waivers the right of subrogation by expressing the intent of not raising an objection to the return of the share certificates of this case to the plaintiffs. Thus, it is difficult to view that the defendant who already received the payment in full has the obligation to deliver the share certificates of this case to the plaintiff, who is the subrogated right holder, and even if the defendant had no obligation to deliver the share certificates of this case to the plaintiff, the plaintiff and the plaintiff, as the plaintiff, as the plaintiff had no obligation to deliver them.

(1) Article 448 of the Civil Act (A) No. 448 (Right of Reimbursement among Co-suretiess)

(1) Where there are several sureties, one of whom has effected performance in excess of the share incumbent on him, the provisions of Article 444 shall apply mutatis mutandis.

(2) Where the principal obligation is indivisible or each guarantor has assumed the obligation jointly and severally or with the principal obligor, and one of the sureties has effected performance in excess of the share incumbent on him, the provisions of Articles 425 through 427 shall apply mutatis mutandis.

(B) section 482. (Effect of subrogation by the person making the performance, relationship between subrogation and between subrogation)

(1) A person who has subrogated the creditor under the preceding two Articles, may exercise his/her right to claim compensation by his/her own right and the right to guarantee it, within the scope of his/her claim.

(2) The exercise of rights under the preceding paragraph shall be subject to the following provisions:

1. The surety shall not subrogate the obligee to a third person who has acquired the right on the subject matter or the mortgaged property without making an additional entry of the subrogation by a registration of chonsegwon or the mortgage; and

2. The third acquisitor shall not subrogate the obligee against the surety.

3. One of the third acquisitors shall subrogate the creditor to the other third acquisitor in proportion to the value of each real estate.

4. Where there are several persons who have offered their own property as security for obligations of others, the provisions of the preceding subparagraph shall apply mutatis mutandis.

5. The obligee shall subrogate his own property as security of another person's obligation in proportion to the number of persons to be the surety: Provided, That if there are several persons who have offered the property as security of another person's obligation, the obligee shall subrogate the balance in proportion to the value of each property, excluding the portion to be borne by the surety. In this case, if the property is a real estate

(2) A statement of calculation of the share of joint and several sureties, surety and surety (related legal principles) (A)

In principle, there are interests of each of the guarantors who has pledged his/her property to secure another's property, but if there are two or more suretys who have pledged his/her property to secure another's property, each of the two or more suretys has to pay the entire amount of the surety without having separate interests to each of the obligees. However, if there are two or more suretys who have been appointed to secure another's property to secure another's property, the proportion of the surety's property to which the two or more suretys have been appointed to secure another's property should be determined on the basis of five or more surety's own property and the proportion of the surety's reimbursement should be determined on the basis of five or more surety's own property to which the two or more surety has already been appointed to secure another's property to secure another's property, the proportion of the surety's joint and several surety's property to which the two or more suretys have already assumed shall be determined on the basis of an increase in the ratio of the surety's indemnity to which the principal obligor has already assumed.

(3) The specific method of calculating the scope of the Intervenor’s subrogation right (A) in the instant case

The portion of the Defendant’s liability, the principal agent of the exercise of the obligee’s right of subrogation, shall be determined at the time of each of the reimbursement, as seen earlier. The method of calculation shall be determined at the time of each of the reimbursement

(1) The total amount of the principal obligation incurred at the time of repayment shall be determined by the joint and several sureties and the real guarantee after the establishment of the joint and several sureties and the real guarantee; (2) the joint and several sureties calculated by applying the apportionment ratio to the total amount of the principal obligation; and (3) if the principal obligation is extinguished due to repayment, etc. of the principal obligor before the relevant repayment, the decreased amount shall be determined by the apportionment ratio

한편 연대보증인 및 물상보증인 사이의 분담비율을 산정함에 있어서는, 이 사건에서 피고의 □□화학에 대한 구상금 채무에 관하여 연대보증인이 □□산업은행 , 참가인, □□화학, ●●특수사료 등 4명이고, 물상보증인이 참가인, □□화학, 권◆◆ , 권△△, 권□□, 조●● 등 6명인바, □□화학과 참가인은 보증인 겸 물상보증인이어서 앞서 본 법리에 따르면 이들은 각 1명으로 보아 연대보증인으로만 취급함이 상당하므로, 결국 이 사건에서 연대보증인과 물상보증인의 분담비율은 연대보증인 4명, 물상보 증인 4명, 합계 8명을 기준으로 산정하여야 한다 . ( 나 ) 산정방법에 관한 참가인의 주장에 대한 판단

① An intervenor in the guarantee and indemnity relationship between the Industrial Bank and the insurance company, as the insurance company entered into a payment guarantee agreement with the insurance company with respect to KRW 1,00,00,00,000, and there is a separate agreement with the other joint and several sureties or the surety to not share the joint obligation with the other joint and several sureties, so the insurance industry bank argues that it is not included in the joint and several sureties who shall share the joint obligation pursuant to Article 482(2)5 of the Civil Act, but it is not sufficient to recognize it by itself, and there is no other evidence to acknowledge it. Rather, the insurance industry bank can recognize the fact that the insurance company received KRW 62,967,689 from the plaintiffs as part of the claim for indemnity against the US chemical on June 4, 2007. Therefore, the intervenor's assertion in this part is without merit.

② In addition, the Intervenor asserts that, inasmuch as the guaranteed obligation of the Defendant of the Special Feed of BB22 is exempted from the company reorganization process of the BB22, the portion of the burden of BB22, under Articles 448(2) and 427 of the Civil Act, the primary debtor and the other guarantors who are able to repay the special feed, should share the burden in proportion to the share of the burden.

According to the statement in Eul evidence No. 6, on April 11, 2005, the summary of the company reorganization plan to revise the company's reorganization plan on the special feed of B/B may exercise the right to indemnity only when the obligee's right to indemnity has ceased to exist in accordance with the reorganization procedure before the obligee's change of right or without going through the reorganization procedure, and the reorganization company can recognize the fact that the reorganization company stated that "the rights to indemnity shall be satisfied in proportion to the obligee's right to indemnity within the extent of the balance of the reorganization claim and security to be satisfied in accordance with the reorganization plan."

The actual substance is difficult to readily conclude that special feed was omitted in the state of insolvent, and there is no other evidence to acknowledge it (in addition, Article 427 of the Civil Act refers to the case of insolvent at the time when the claim for reimbursement is raised. There is no evidence to acknowledge it as to the fact that there is no sufficient capability to repay Balbry special feed as of the date of the closing of argument in this case, at the time of the issue of the claim for reimbursement of △ chemical and the Intervenor. Therefore, the Intervenor’s above assertion is without merit. (c) Whether the portion of the share of the △ chemical burden exceeds the amount of reimbursement and the amount of subrogated amount.

① On October 13, 1999, the repayment of KRW 900 million to the Defendant on October 13, 1999 was made by △chemical, the fact that the repayment of KRW 900 million out of the reimbursement of KRW 900 million to the Defendant was made. As seen earlier, the total amount of the principal obligation at the time of the repayment of KRW 900 million is the sum of KRW 3,253,841,027 ( = (a) + (b)) as seen in the following formula:

【Calculation Form (1)】

(a) At the time of the repayment of △ Chemical, the total amount of the principal of the Defendant’s indemnity bond amounting to KRW 3,247,500,00 ( = Interest 82,50,000 + Interest 82,50,500 + Interest 82,500,000 + Principal of the bond + Principal amounting to KRW 3,082,50,000)

6, 341, 027 won ( = 1,661, 301 + 4, 679, 726 won) in aggregate of the interest on the claim for reimbursement against the Defendant’s △chemical at the time of repayment of △chemical

From April 10, 1999 to 1999 with respect to the bond interest of KRW 82,50,000 paid by the Defendant.

5. 14. Agreement between the parties at the rate of 21% per annum: 1,61,301 won per annum ( = 82,50,00 wonx 35/365 x 21%, but less than won; hereinafter the same shall apply).

The Defendant’s principal amount of indemnity bonds of KRW 2,247,50,00 ( = 3,082, 50, 000, - 835, 000, - 000) with the rate of 19% per annum from October 10, 1999 to October 13, 199, for delay damages of KRW 4,679, 726 ( = 2,247, 50, 000, x 44/365x19% per annum).

[Reasons for recognition] Eul or Eul evidence 4-3, Eul or 7-1, 3-1, and 128 won ( = 3,253,841,027 won x 1/8) which is divided by the total amount of the above principal debt at the time of performance by the number of guarantors. Thus, Pacific Chemical shall be deemed to have performed beyond its own share. Thus, it shall be deemed to have exceeded 493,269,872 won ( = 1900,000,000 - 406,730,128 won) which is 406,730, and 128 won which is the surety's right of subrogation after the increase in the amount of the principal debt at the time of performance by the surety's right of reimbursement, apart from the above increase in the amount of the principal debt at the time of performance by the surety's right of reimbursement after the decrease in the amount of the principal debtor's right of reimbursement after the reduction in the amount of reimbursement by 20.

② On October 13, 1999, △chemical was already repaid in excess of its own share on October 13, 1999, as seen in the above (1), and the portion already repaid in excess of its share on October 22, 1999, which is in excess of its share on October 22, 1999, and thus, it may exercise the right of subrogation for the full repayment to other joint and several sureties and the person who has pledged to secure another’s property (in relation to the above repayment, it may be at issue whether the total principal obligation at the time of the relevant repayment exceeds the share on the property after re-calculated the share on the property, but it is not necessary to re-calculated as at the time of additional repayment, and if the first repayment exceeds the share on the additional repayment, it is unnecessary to re-calculated the portion on the basis of the share on the additional repayment).

③ The enforcement portion of the pledge on December 29, 2004, KRW 496,320,724, and KRW 1,000, among the shares listed in the separate sheet No. 2, the Defendant exercised a pledge on KRW 1,000 as to the shares listed in the separate sheet No. 2, and appropriated the proceeds of KRW 496,320,724 on December 29, 2004 to repay the above amount, and therefore, △ Chemical may exercise the right of subrogation for the full amount of the above amount to other joint and several sureties and the surety.

(4) Softs (the amount possible for subrogation of △chemical)

Ultimately, the amount for which △ chemical is entitled to exercise the subrogation right against another joint and several sureties and the surety to secure another person to secure the obligation to secure the obligation to secure the obligation to perform the obligation is KRW 1,19, 590, 596 ( = 493, 269, 872 won + 130,000,000 won + + 496, 320,724 won) and damages for delay. (d) Whether the portion for which the Intervenor’s reimbursement is in excess and the amount for which the reimbursement is possible by subrogation is possible.

Of the shares listed in the attached Table 2, the Defendant’s enforcement of a pledge against KRW 1,60 as to KRW 736,00 on November 25, 2003 by the Intervenor’s 1,60 shares out of the shares listed in the attached Table 2, appropriated for payment of KRW 736,00 on November 25, 200. As seen above, the total amount of the principal obligation at the time when the Intervenor repaid KRW 736,00,00,000 as above, is the sum of KRW 4,202,424,494 (=a + (b) + 200 + 8) as seen in the following formula. Accordingly, the part at the time of the Intervenor’s performance is divided by the total sum of the principal obligation as at the time of the Intervenor’s performance by the number of guarantors and thus becomes 525,303,061 won ( = 4,202,424,494 won x 1/8).

Meanwhile, the Intervenor paid a total of 963,623,96 won ( = 7,206,748 won + 37,168,519 won + 136,058, 519 won + 30,126,875 won + 753,063, 305 won), which is divided according to the apportionment ratio (number of guarantors), and thus, the Intervenor paid a total of 963,623,96 won ( = 963,623,966 won x1/8), which is the part of the surety’s liability, and the remainder of 120,45 won is deducted from the remainder of 525,303,061 won, which is the part of the surety’s liability, as at the time of reimbursement.

Ultimately, the intervenor paid 736,00,000 won in excess of his/her own share by paying 731,149,934 won ( = 736,00,000 won - 404,850,066 won) and damages for delay, the intervenor can exercise his/her right of subrogation for another joint and several sureties and his/her property to secure another's property to the extent of the excess share.

【Calculation Form (2)】

(a) At the time of the repayment of △ Chemical, the total amount of the principal of the Defendant’s indemnity bond amounting to KRW 3,247,500,00 ( = Interest 82,50,000 + Interest 82,50,500 + Interest 82,500,000 + Principal of the bond + Principal amounting to KRW 3,082,50,000)

6) At the time of the Intervenor’s repayment, the Defendant’s claim for reimbursement against the Defendant’s Hammmmmmmche was 1923,773,174 won ( = 1,661,301 won + 4,679,726 won + 6,312,945 won + 887,907, 907, 740 won + 3,090, 423 won + 20,121,039 won) 1)

From April 10, 1999 to 1999 with respect to the bond interest of KRW 82,50,000 paid by the Defendant.

5. The agreement up to 14. 1. The rate of 21% per annum shall be 1,61,301 won per annum ( = 82,50,00 wonx 35/365x 21%, less than won; hereinafter the same shall apply).

1) The agreement up to 19% per annum from October 10, 199 to October 13, 199 on the balance of 10,247, 500, 00 won of 10,000 won of 30,000 won per annum, 19% per annum ( = 3,082, 500, 365x 365x 19%) 1,347,50, 500 won of 1,00 won of 30,000 won of 1,50,000 won of 30,000 won of 1,50,000 won of 1,50,00 won of 7,000 won of 1,50,00 won of 30,000 won of principal amount of 1,57,000 won of 30,00 won of 19,194

24. The agreement from August 28, 2003 to the rate of 19% per annum 3,090,423 won ( = 1,187,373, 125 x 5/365 x 19% per annum)

Of the principal amount of the ○○ Claim, the remainder of KRW 434,309,820 after the repayment of KRW 753,063,305, out of KRW 753,063,30 (=1,187, 373, 125 - 753, 063, 305) shall be paid.

29. From November 25, 2003 to the agreed rate of 19% per annum 20,121,039 won ( = 434,309, 820 wonx 89/365x 19%) at the time of the Intervenor’s performance, 31,151,320 won per annum (=3,333,320 won for application for provisional attachment on May 31, 200 + June 10, 200 +

The filing cost of a lawsuit 2, 189, 00 won + the filing cost of an application for stock auction 16, 706, 500 won on July 24, 2003 + the additional filing cost of stock auction 3, 922, 500 won on July 28, 2003 + the prepaid cost of stock auction 5,00,000 won on August 11, 2003)

[ 인정근거 ] 을나 제4호증의 3, 을나 제7호증의 3, 을나 제38호증의 4 ( 4 ) □□화학, 참가인의 대위권 행사에 따른 원고들의 부담부분 ( 가 ) 대위권 행사의 상대방 위 인정사실에 의하면, □□산업은행, □□화학, 참가인은 모두 자신의 부담부분을 초과하여 변제하였음이 분명하므로, 이들 상호간에는 구상권 및 변제자대위권 행사의 대상이 될 수 없다 ( 다른 보증인 가운데 구상권 행사 주체의 변제 이전뿐만 아니라 변제 이후에 자기의 부담부분을 변제한 사람에 대하여도 구상을 할 수 없다 ). 따라서 □□화학과 참가인이 대위권을 행사할 수 있는 대상은 연대보증인인 ●●특수사료, 물상보증인인 권◆◆, 권△△, 권□□, 조●●, 합계 5명에 한정된다고 할 것이다 . ( ●●특수사료가 상환무자력이라는 참가인의 주장을 인정하기 어렵다는 점은 앞서 본 바와 같다 ) .

The plaintiffs asserted that, even if △ Chemical and Intervenor made a repayment exceeding their share of expenses, it is against the good faith principle to exercise the right of subrogation to △△△△△△△ who established a pledge on the shares of this case upon their request as a person who was in the position of the representative director or the executive leader at the time of △ Chemical and Intervenor, and therefore, he was in the position of the representative director or the executive leader at the time of △ Chemical and Intervenor.

The sole basis of the circumstance that it is difficult to regard it as the Defendant’s actual primary debtor, and it is difficult to recognize that the exercise of the right to subrogation against the △△△△△ by the Intervenor is contrary to the good faith principle on the sole basis of the fact that the said person has pledged his/her property to secure another’s property upon request by the competent △△△△△△△, and there is no other evidence to acknowledge the said assertion. Accordingly, the Plaintiffs

Where the other party of the indemnity or subrogation is a person who has pledged his/her property to secure another's property, first of all, a creditor shall be subrogated in proportion to the number of persons who have pledged his/her property to secure another's property, and if there are several persons who have pledged his/her property to secure another's property, he/she may subrogate the balance in proportion to the value of the property of the person who has pledged

Therefore, the amount of reimbursement that can be subrogated to the plaintiffs is calculated by dividing the amount of reimbursement that has been repaid in excess of their own share to the plaintiffs by the guarantor who is the other party to the subrogation and five persons who have pledged the property to secure another's property, and then the amount calculated by multiplying the amount of reimbursement per person multiplied by the number of persons who have pledged the property to secure another's property, which is the other party to the subrogation, by the ratio of shares owned by the plaintiffs among the shares owned by the four persons who have pledged the property to secure another's property (the portion to be borne by the plaintiffs = 1/5) x four persons who have pledged the property to secure another's property (1,400 shares) / four persons (9,900 shares)

이에 대하여 원고들은, 자신들이 권△△의 주식을 나누어 양도받았으므로 권△△의 부담부분 중에서 자신들이 양수한 주식수에 비례하여 분할하여 부담하여야 한다고 주장한다. 살피건대, 원고들이 이 사건 주식을 양수한 행위는 물상보증인 1인의 수개 담보물을 다수의 제3취득자가 분리하여 양수받은 경우에 해당한다고 할 것인데 ( 물상보증인 1명의 수개 담보 부동산을 수인이 각각 나누어 양도받은 경우와 같다 ), 민법 제482조 제2항 제5호는 수인의 보증인과 물상보증인간의 대위에 있어 물상보증인의 경우 다수 부동산을 담보로 제공한 물상보증인을 담보물별로 구분하지 않고 물상보 증인 1인으로만 계산한 부담부분에 관하여 해당 물상보증인의 담보물 전체에 대하여 대위행사할 수 있도록 규정하고 있는바, 물상보증인에 대한 대위 금액 중에서 제3취득자들이 분리하여 양수받은 담보물의 가액비율에 따라 분할한 범위에서만 행사하도록 하는 것은 물상보증인의 처분에 의해 다른 보증인, 물상보증인이 변제에 의하여 대위할 담보권을 약화시키는 결과를 초래하여 위와 같은 민법 규정의 취지에 반하는 것이 되므로 허용될 수 없다고 할 것이다 ( 뿐만 아니라 기존의 연대보증인과 물상보증인 사이에는 그 인원수에 비례하여 채권자를 대위한다는 규정과 관련하여서도 물상보증인의 담보물 분리 양도로 보증인의 인원수가 증가하게 되어 보증인과 물상보증인들의 부담 부분이 달라지게 되고, 특히 담보물을 양도하지 않은 다른 물상보증인의 부담부분이 자신들의 의사와 무관하게 증가하게 되는 점에서도 부당하다 ). 따라서 물상보증인의 제3취득자들인 원고들은 양도인인 권△△과 마찬가지로 1명으로 봄이 상당하고, 자신의 부담부분을 초과하여 변제한 ▣□화학과 참가인은 물상보증인 권△△에 대해 애초 대위할 수 있었던 금액에 관하여 이 사건 주식의 제3취득자인 원고들별로 분할된 금액이 아닌 권△△에 대해 대위할 수 있는 금액 범위내에서 양도된 담보물 전체에 대하여 대위행사할 수 있다고 봄이 상당하다. 이에 반하는 원고들의 위 주장은 받아들이지 아니 .

of this section.

(C) Whether the agreement is calculated at the rate of 19% per annum.

The intervenor asserts that the intervenor should apply damages for delay by 19% per annum, which is an agreement on the claim for indemnity, as the defendant subrogated to the claim for indemnity against the △ chemical by repaying the obligation against the defendant of △chemical.

However, subrogation is a system to secure the validity of the right to indemnity against the principal obligor and other joint and several sureties by repaying the principal obligation, and the scope of the exercise of the original claim and the security right by subrogation is limited to the scope of the right to indemnity (see Article 482(1) of the Civil Act). It shall be deemed that the obligee acquired the right to indemnity against the principal obligor by discharging the obligation against the Defendant’s Pacific Chemical through the exercise of the security right. The right to indemnity against the surety is acquired by the provisions on the guaranteed obligation (Article 341 of the Civil Act). The surety may claim the reimbursement to the extent of legal interest after the discharge against the principal obligor and the costs that cannot be avoided and other damages (Article 441(2) and Article 425(2) of the Civil Act). Therefore, even if it is possible for the obligor to claim reimbursement against the principal obligation or the security right to it with the repayment of the principal obligation, the obligee’s assertion that the subrogation of the principal obligor is limited to the amount of the obligor’s damages for delay within the scope of the foregoing portion of the chemical interest in 5%.

(D) Determination of specific shares of the plaintiffs

(1) Scope of the exercise of subrogation rights on account of the repayment of △ chemical.

As seen earlier, 1,19, 590, 596 won which can be subrogated to other joint and several sureties, and to secure another's property to secure another's obligation by paying more than their own share. Therefore, with respect to the amount which the plaintiffs are liable to bear, 126,60,754 won ( = 1,119,590, 596 won ¡¿ 1/5 x 4 x 1,400 x 9 x 40 x 94 x 50 x 94 x 50 x 94 x 40 x 9 x 9 x 40 x 9 x 40 x 9 x 9 x 40 x 9 x 9 x 40 x 9 x 9 x 15 x 4 x 1, 40 x 90 x 9 x 9 ) of the relevant amount which are repaid.

(2) The scope of the intervenor's right to subrogation upon the performance.

Of the amount available to the intervenor's subrogation, the amount of KRW 331,149,934, which the intervenor may subrogate to other joint and several sureties or to secure another's property to secure another's obligation by paying in excess of his/her own share, is as seen earlier. As such, among the amount available to the intervenor's subrogation, the amount to be borne by the plaintiffs shall be 37,463,426 won ( = 331,149,934 x 1/5 x 1/5 x 4 x 1,400 x 9,900) and damages for delay at the rate of 5% per annum as prescribed by the Civil Act from November 25, 2003 to the date of repayment.

따라서, 피고는, 원고들로부터, □□화학의 상속인인 권△△이 위 ( 라 ) ①항 기재 금원을, 참가인이 위 ( 라 ) ②항 기재 금원을 각 지급받은 다음, 원고들에게 이 사건 주권을 인도할 의무가 있다고 할 것이다 ( □□화학과 참가인이 위 ( 라 ) 항 기재 각 금원을 원고들이 아닌 다른 연대보증인 또는 물상보증인으로부터 변제받는 것도 상정해 볼 수 있으나, 이와 같이 다른 연대보증인 등이 원고들의 부담부분을 변제하는 것은 자신의 부담부분을 초과하여 제3자로서 변제하는 것에 불과하므로, 피고의 이 사건 주권의 인도의무에 관한 선이행의무를 선언함에 있어서는 □□화학과 참가인이 원고들 이외의 연대보증인 또는 물상보증인인 ●●특수사료, 권◆◆, 권□□, 조●●로부터 변제받아야 하거나 받을 수 있다는 취지를 별도로 특정할 필요는 없다 ) .

5. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable within the above scope of recognition, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance received each of the money from the plaintiffs from the △△△△△ and the intervenor, and it is decided to revise the purport that the defendant should deliver the share certificates to the plaintiffs. It is so decided as per Disposition.

Judges Park Jong-nam 1

Sung Ho Ho-ho

Kim Don Kim

1) The defendant is not a joint and several sureties or a person who has pledged his property to secure another's obligation in the order of the expenses, interest, and principal, but a repayment is made first.

As a result, since the principal is reduced in sequence by the repayment of a part of the principal obligation, the subsequent calculation of damages for delay is made every time of repayment.

the original amount to be changed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.