The case holding that in case where Company A established a collateral security on Company B’s real estate by obtaining a loan from Company B, and the Korea Technology Credit Guarantee Fund concluded a credit guarantee agreement with Company A to guarantee the above loan obligations, and upon the commencement of rehabilitation procedures with Company A’s failure to repay loan obligations, the Korea Technology Credit Guarantee Fund agreed to cover the difference in the case where the mortgage was implemented by the Korea Technology Credit Guarantee Fund by paying a part of the loan obligations on behalf of Company B and entering into a contract to transfer a part of the loan obligations from Company B, and the rehabilitation plan approved as the rehabilitation plan provides that Company B and the Korea Technology Credit Guarantee Fund shall pay the decreased interest rate upon the commencement of the loan claims against Company B and the limited liability company B’s claim by taking over all the rights related to the loan claims against Company B from the bank, it is reasonable to calculate the amount of the claim against

Article 105 of the Civil Act; Article 250(2) of the Debtor Rehabilitation and Bankruptcy Act

Korea Technology Credit Guarantee Fund (Law Firm Sejong, Attorneys Kim Jong-ok, Counsel for defendant-appellant)

Young-chul Specialized Company (Law Firm Han-gu, Attorneys Kim Jong-min et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2016Na306014 Decided November 3, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the assertion that the partial transfer contract of the instant right to collateral security was not an expected change in the right according to the rehabilitation plan

A. The record reveals the following facts.

(1) On December 27, 2005, Hansunggdongg Group Co., Ltd. (hereinafter “Magsung”) established a first-class collateral on real estate owned by Hansung in order to secure its obligation after receiving money from the Industrial Bank of Korea (hereinafter “Magsung”) (hereinafter “the instant collateral security”). On October 31, 2005, the Plaintiff entered into a credit guarantee agreement within the coverage of the guaranteed amount with regard to the loan obligations owed to the Industrial Bank of Korea by Hansung, Hansung, a credit guarantee agreement within the coverage of the guaranteed amount, and issued a credit guarantee agreement of KRW 233,80,000,000 for the guaranteed amount (credit guarantee number omitted) to the Industrial Bank of Korea. Hansung offered it as a collateral.

(2) On September 3, 2008, the rehabilitation procedure was commenced on Korea on Sep. 3, 2008, when Korea has failed to repay loans, etc. to the Industrial Bank of Korea.

(3) On October 21, 2008, the Plaintiff made a contract for partial transfer of the right to collateral security (hereinafter “the contract for partial transfer of the right to collateral security”) to which part of the right to collateral security of this case was transferred by the Industrial Bank of Korea on behalf of the Industrial Bank of Korea under a credit guarantee agreement. Article 2 of the contract set out the priority order of appropriation when the right to collateral security is exercised, and Paragraph (1) of the contract set forth in Paragraph (1) as of the date of the date of the preferential appropriation in order of the difference between the transferee and the agreed interest rate applied to the overdue interest rate calculated by applying the overdue interest rate accrued until the date of the fulfillment of the guaranteed obligation to the loan (including the management cost of the right to collateral security).

(4) On December 23, 2009, the Industrial Bank of Korea transferred all of its loan claims and collateral security-related rights to KIS to KIS limited companies specializing in KIS, and completed the notification of transfer to KIS around that time. Thereafter, the Defendant acquired all of the loan claims and collateral security-related rights to KIS and KIS in KIS under an asset acquisition agreement.

(5) According to the rehabilitation plan approved on April 20, 209, the Plaintiff and the Defendant exercised their rights as rehabilitation secured creditors after undergoing the procedure for reporting claims, etc., and on April 20, 2009, according to the rehabilitation plan, the total principal and interest prior to commencement of the rehabilitation plan shall be repaid in cash from 2012 to 2018, and the interest prior to commencement of the rehabilitation plan shall be repaid in installments from 2010 to 4.5% of the reduced annual interest rate.

(6) Upon the abolition of the rehabilitation procedure against Hansung, the auction procedure for real estate on which the instant right to collateral security was established was conducted upon the Defendant’s request. On March 18, 2015, the distribution court drafted a distribution schedule with the content that distributes the amount of KRW 2.6 billion (the amount corresponding to the instant right to collateral security, which is KRW 234,00,000) to the Defendant, who is a multiple right to collateral security, including the instant right to collateral security. The Plaintiff appeared on the date of distribution, stated an objection against the Defendant regarding KRW 55,00,00 out of the amount of dividends against the Defendant, and then filed a lawsuit in the instant case by asserting that the expenses for the security service that the Defendant claimed to be entitled to preferential collection shall not be included in the “security management expenses” of the first agreement, and the difference between overdue interests under the second agreement shall be calculated by applying the changed interest rate after the rehabilitation plan approved

B. After recognizing the above facts, the court below determined that the rehabilitation plan does not affect the rights of rehabilitation creditors or rehabilitation secured creditors against the debtor's guarantor, but since the dividend of this case is distributed to the plaintiff, defendant, etc. as the debtor debtor, who is the principal debtor, offered each real estate of this case as security to the Industrial Bank of Korea, and thus, it is reasonable to calculate the amount of the defendant's claim according to the interest rate of 4.5% per annum as revised according to the rehabilitation plan when the plaintiff distributes the dividend of this case between the plaintiff

C. According to the relevant legal principles and records, the part of the judgment of the court below is somewhat inappropriate that the plaintiff still expressed as the guarantor of the debtor, even though the plaintiff subrogated to the defendant for the secured obligation of the instant collateral security and exercised his/her right as a rehabilitation secured creditor under the instant rehabilitation procedure. However, considering the motive and background leading up to concluding the instant contract for partial transfer of the instant collateral security after the commencement of rehabilitation procedure for Korea, which is a rehabilitation secured creditor, as well as the intent of the parties, comprehensively taking into account the motive and background leading up to the conclusion that the plaintiff and the defendant entered into the instant contract for partial transfer of the collateral security after the commencement of rehabilitation procedure for Korea, it is reasonable to conclude that the

Therefore, this part of the ground of appeal is without merit.

2. As to the allegation that the Defendant may preferentially collect the cost of security service pursuant to the agreement under Article 1

The lower court, citing the first instance judgment, determined as follows.

The Plaintiff and the Industrial Bank of Korea agree to preferentially recover the amount including expenses incurred in managing collateral, only in the case of non-performing loans executed in excess of the original loan amount under the first agreement. It is reasonable in light of the language and intent of the parties to the instant agreement on partial transfer of collateral security and the agreement. However, there is no evidence to prove that the Industrial Bank of Korea has paid loans to Hansung in excess of the original loan amount. Thus, it is difficult to view that the Defendant’s cost of security service constitutes the Defendant’s priority claim as stipulated in

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on contractual interpretation as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the defendant's appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Seon-soo (Presiding Justice)