New Bank of Korea (Law Firm Democratic, Attorney Yoon Young-young, Counsel for the defendant-appellant)

The administrator of the debtor treatment Lochis Co., Ltd., the non-party's lawsuit taking over the lawsuit (Law Firm Pyeongsung, Attorneys Shin Jin-ho et al., Counsel for the plaintiff-appellant)

March 23, 2012

Seoul Central District Court Decision 2010Kahap10942 Decided May 6, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The final claim inspection judgment of the Seoul Central District Court No. 2009 dated August 5, 2010 shall be amended as follows. The rehabilitation security rights of the Plaintiff’s obligor treatment-based corporation are 61,050,000 won.

1. Facts of recognition;

A. AMTTex Co., Ltd. (hereinafter “AMTex”) issued and delivered one copy of a promissory note (hereinafter “instant note”) dated September 30, 2009, at par value 61,050,000, and due date, to pay for transportation charges, to the debtor Lochix Co., Ltd. (hereinafter “debtor”).

B. Around June 30, 2009, the debtor company delegated the collection of the Promissory Notes to the Plaintiff, a financial institution, and accordingly, the Plaintiff kept the Promissory Notes until the maturity of the Promissory Notes.

C. In such a situation, the rehabilitation procedure for the debtor company was commenced on July 23, 2009 by Seoul Central District Court 2009 Mahap109, and the Nonparty was appointed as the administrator.

D. On September 2, 2009, the Plaintiff asserted that he/she acquired commercial lien on the Promissory Notes in the above rehabilitation procedure, and reported KRW 61,050,000 of the Promissory Notes as a rehabilitation security right. Accordingly, the Nonparty, a custodian of the debtor company, denied the rehabilitation security right on the ground that he/she did not have any security right and recognized it as a rehabilitation claim.

E. On September 30, 2009, the due date of the Promissory Notes, the Plaintiff received the said Promissory Notes from AMTex and delivered the Promissory Notes to AMTex.

F. The Plaintiff filed a final claim inspection judgment with Seoul Central District Court Decision 2009Hun-Ma979, but the above court decided on August 5, 2010 that the Plaintiff did not have a rehabilitation security right for the Plaintiff’s debtor company on the ground that “The Plaintiff, a mandatory, is obligated to deliver the money collected from the obligor company to the obligor company, and the Plaintiff’s exercise of the right of retention for the said bill violates the above obligation, and thus, it is reasonable to view that there is an implied special agreement between the Plaintiff and the debtor company to exclude the right of retention.”

G. The above rehabilitation procedures for the debtor company were completed on June 8, 2011.

[Evidence] Facts without dispute, Gap evidence No. 1, the purport of the whole pleadings

2. Determination

A. The assertion

The Plaintiff, upon delegation of collection from the obligor, kept the Promissory Notes in custody, and acquired commercial lien on the Promissory Notes since the obligor’s claim for loans to the obligor company arrived at the due date, which also explicitly provided for in Article 6(3) of the Bank Credit Transactions Basic Clause. Thus, the Plaintiff asserted that Article 58(3) of the Commercial Act cannot be applied by implied special agreement, and sought confirmation of the Plaintiff’s rehabilitation security right against the obligor company, such as the purport of the claim, against the Defendant.

B. Determination

In order to promote the equity, prompt and convenient acquisition between the parties in commercial transactions between merchants, and the safety of commercial transactions, Article 58 of the Commercial Act provides that "if a claim arising from commercial transactions between merchants has become due, the obligee may retain the things or securities owned by the obligor due to his/her commercial transactions with the obligor until repayment is made, until repayment is made, the obligee may retain the things or securities held by the obligor due to his/her commercial transactions with the obligor," thereby allowing the exclusion of the commercial lien by stipulating in the proviso of the same Article that "if there is no other agreement between the parties, the same shall not apply." This special agreement on the exclusion of the commercial lien is possible by implied declaration of intention.

As seen above, since the Plaintiff, as a financial institution, deposited the Promissory Notes with the delegation of collection from the obligor company, it can be deemed that it occupied the Promissory Notes due to commercial activities. However, on the other hand, the Plaintiff, while keeping the Promissory Notes in accordance with the collection delegation agreement with the obligor company, is obligated to receive the Promissory Notes from the issuer and at the same time, deliver the Promissory Notes to the issuer, and pay the amount acquired therefrom to the obligor company, who is a delegating person, who is the duty to deliver the Promissory Notes to the issuer for collection. Thus, the Plaintiff’s continued possession of the Promissory Notes is contrary to the above obligation, namely, the delegated obligation, and if it is recognized, it would interfere with the realization of rights as a holder of the Promissory Notes. Accordingly, it is difficult to view that the Plaintiff and the obligor company have an implied special agreement to exclude the lien.

Meanwhile, according to the Plaintiff’s evidence No. 2, Article 6(3) of the General Terms and Conditions for Credit Transactions provides that “if an obligor delays the performance of his/her obligation to a bank, the obligor’s movable property, bills, and other securities held by the bank may continue to possess the bank, or collect or dispose of them in accordance with paragraph (2), even if they are not offered as a collateral,” it shall not be deemed that the obligor may continue to hold possession of the bank, or perform collection or disposal, etc. in accordance with paragraph (2).” However, as a basic terms and conditions for credit transactions, it shall not be deemed as the case where a collection delegation agreement, which does not themselves constitute a credit transaction such as bill lending or bill discount, explicitly stipulates that the delegating is obligated to perform such active act as the duty of due collection with respect to the delegated person, and it shall not be deemed that

Therefore, there is no rehabilitation security right for the debtor company.

3. Conclusion

Therefore, the final claim inspection judgment of the Seoul Central District Court 2009da979 is justified and authorized, and the judgment of the court of first instance is consistent with this conclusion, so the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Jae-hae (Presiding Judge)