Korea Housing Guarantee Co., Ltd. (Attorney No. Do-Appellee)

Busan Construction Co., Ltd. and 3 (Law Firm Rotex, Attorneys Cho Han-tae et al., Counsel for the defendant-appellant)

March 11, 2008

1. Defendant Samju Construction Co., Ltd and Defendant 2 jointly and severally pay to the Plaintiff 515,52,705 won and 498,179,383 won with 16% per annum from June 15, 1999 to September 14, 199, 14% per annum from the next day to March 21, 2008, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against defendant Samchi Construction Co., Ltd. and defendant 2, and each claim against defendant Kudong case and defendant 4 are dismissed.

3. Of the costs of lawsuit, the portion arising between the Plaintiff and Defendant Samchi Construction Co., Ltd. and Defendant 2 shall be borne by the Plaintiff, the remainder by Defendant Samchi Construction Co., Ltd. and Defendant 2, and the portion arising between the Plaintiff and Defendant 4 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The defendants shall be jointly and severally liable to the plaintiff; 2,757,287,058 won and 329,042,170 won among them, 6% per annum from November 22, 1998 to October 20, 1999; 14% per annum from the next day to the service date of the authentic copy of the payment order of this case; 20% per annum from the next day to the day of complete payment; 518,986,301 won to June 25, 1998; 756,408,310 won per annum from the next day to June 30, 1998 to the day of full payment; 528,47,943 won per annum from the next day to the day of full payment; and 19% per annum from the day to the day of full payment to the day of full payment; 30% per annum from June 19, 199 to the day of full payment.

1. Basic facts

A. The Plaintiff, a juristic person established by Article 47-6(1) of the Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199), comprehensively succeeded to all rights and obligations of the Housing Business Mutual Aid Association pursuant to Article 6 of the Addenda of the same Act (hereinafter “the Plaintiff and the Housing Business Mutual Aid Association are not separated and referred to as the Plaintiff”).

B. (1) On October 23, 1996, the Plaintiff extended a loan of KRW 540 million on a house even after Co., Ltd. (hereinafter “ also house”) as of October 22, 1997, and thereafter, the repayment period of the loan was extended on October 20, 1999 and the loan was changed to KRW 480 million.

(2) In the meantime, the house did not pay interest on the above loan after November 22, 1998, and lost its interest at that time (the plaintiff implemented the security offered by the house as of June 3, 1999). As of October 20, 1999, the unpaid principal of the loan was KRW 329,042,170, and the unpaid principal of the loan was KRW 329,042,170 as of October 20, 1999, and as of the portion recovered as shown in attached Table 3 “Calculation Schedule” in attached Table 3, the final interest payment was made from November 22, 1998 to October 20, 1999, the interest rate of KRW 8,263,390 was 14% per annum from the day following the date on which the loan was repaid (hereinafter “instant loan”).

C. (1) In addition, the Plaintiff entered into an agreement to guarantee each time limit with the time limit for guarantee set forth in Section (1)(c) of the same Section as of the date of each guarantee set forth in Section (1)(b) of the attached Table 1 with respect to the housing being loaned and temporarily supplied from the secured creditors described in Section (1)(A) of the attached Table 1 with respect to each guarantee set forth in Section (1)(a).

(2) In addition, the Plaintiff entered into an agreement with the Dong name Comprehensive Construction Co., Ltd. (hereinafter referred to as the “Dong name Construction”) to guarantee each of the security deposits listed in Section (a) of Section (1) of Section (A) of Section 2 as of the date of each guarantee described in Section (b) of Section 1 of Section 2 as of the date of each guarantee described in Section (a) of the same Section, and to guarantee each of the security deposits listed in Section 1(d) of the same Section as of the date of each guarantee described in Section 1(b). In addition, the Plaintiff jointly and severally guaranteed all of the obligations under the above guarantee agreement to which the Dong name Construction Co., Ltd. is owed to

(3) In addition, upon the occurrence of the bankruptcy on January 2, 1999 in the house and building name construction, the Plaintiff subrogated to the secured creditor as stated in Section (f) of Section 1 of Section 1 of Section 2 of Section 1 of Section 1 of Section 2 of Section 3 and Section 1 of Section 1 of Section 1 of Section 2 of Section 3 of the "Account for Guarantee Details and Statement of Compensation Amount" as stated in Section 3 of the same Section. Among them, the Plaintiff claimed part of Section 2 or 7 of the attached Table 3 as stated in Section 2 or 7 of the "Calculation Schedule" and the principal amount of the indemnity claim remains 2,302,02,01,937 in total. As stated in Sections 2 through 7 of Section 3 of the "Calculation Schedule", the amount of damages for delay determined by the Plaintiff with respect to the indemnity amount is 117,959,561 won per annum from September 14, 199.

D. Defendant Samung Construction Co., Ltd. (hereinafter “Defendant Samung Construction”) and Defendant Kudong Construction Co., Ltd. (hereinafter “Defendant Kudong Construction”) assumed the Defendant’s loan obligations against the Plaintiff in this case and the indemnity obligations against the Plaintiff in parallel while taking on August 8, 1999. Defendant 2 jointly and severally guaranteed the Defendant Kudong Construction’s obligation, and Defendant 4 jointly and severally guaranteed the Defendant Kudong Construction’s obligation.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 6, Eul evidence 2, and 5 (including branch numbers if there are serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings]

2. Determination as to the cause of action

According to the above facts, the defendants shall jointly and severally pay to the plaintiff the loan obligations of this case and each principal of the claim for reimbursement of this case and damages for delay, unless there are special circumstances.

3. Judgment on the defendants' assertion

A. Determination on the assertion that the contract is void

Defendant Samsung Construction and Defendant 2 did not go through the resolution of the board of directors when they take over the obligation to the Plaintiff of the house even after Defendant Samsung Construction, and thus, the above assumption of obligation is null and void. However, there is no evidence as to the fact that the above assumption of obligation is essential to the board of directors or that even if it is essential to the above assumption of obligation, the Plaintiff knew or could have known of such fact. Thus, the above Defendants’ assertion is without merit.

B. Determination on the assertion of non-performance of the condition precedent

Defendant Samyeong Construction and Defendant 2 also agreed on the assumption of obligation by the creditors of the Housing and Housing Bank including the Plaintiff and the Korea Credit Guarantee Fund to succeed to the apartment housing rental business in spite of the assumption of obligation by the creditors of the Housing and Housing Bank, including the Plaintiff. However, since the above suspension conditions have not been fulfilled, the above assumption of obligation has not become effective. However, there is no evidence as to the existence of the inherent suspension conditions as alleged by the above Defendants. Thus, the above Defendants’ assertion is without merit.

C. Judgment on the ground for extinctive prescription defense

(1) Defendant Chyeong Construction, Defendant 2’s defense

The above defendants defense that the plaintiff's loan claims of this case against the above defendants and the claim for indemnity of this case were extinguished by the statute of limitations. Thus, although the repayment period of the loan of this case was October 20, 1999, it was lost by the benefit of light and around November 1, 1998, the above facts are as seen above. According to the evidence No. 1, it can be acknowledged that the defendant SamGyeong Construction and the defendant No. 2 decided to pay the amount of each subrogated payment stated in the separate sheet No. 1 "the details of guarantee and statement of indemnity" from September 30, 199 to March 31, 2001, it is clear that the remaining part of the claim for indemnity of this case was paid in seven installments from September 30, 199 to March 31, 201, and the lawsuit of this case was filed on June 25, 1998; the expiration date of each payment period of this case from June 19, 1998;

Meanwhile, according to the evidence Nos. 7 and 5 evidence Nos. 7 and 5, the plaintiff filed an application for provisional attachment of the amount of money equivalent to 1,127m2, 864m2, 1,810m2, and 1,810m2 of the same Ri (hereinafter referred to as "3m2") and executed on September 9, 2004, on the part of the amount of subrogated payment to the Korea Housing & Commercial Bank of this case (attached Form 1, 1, 1,3 of "the details of the guarantee and the statement of indemnity amount") among the amount of the indemnity amount of this case, which is the one time payment period of the amount of the loan amount of this case and the amount of the indemnity amount of this case as the claim claim, and the amount of the subrogation payment to the Korea Housing and Commercial Bank of Korea, which is the claim amount, shall be deemed to have been suspended on or before September 30, 199. Accordingly, the remainder of the period of extinctive prescription of the defendant construction shall be deemed to have expired.

In addition, the plaintiff re-claimed that the period of extinctive prescription was interrupted because the plaintiff filed a judicial claim seeking the performance of an obligation against a house even after June 8, 2002 and August 12, 2005, which was before the expiration of the period of extinctive prescription. However, even though the plaintiff's re-claim does not naturally affect the effect of extinctive prescription to Defendant 2, who is the counter-contractor construction and joint and several surety of the same defendant, the counter-claim of the plaintiff, as a result of a judicial claim against a house, and as a matter of course, it does not need further review.

(2) Defendant extreme Dongdong case, Defendant 4’s defense

The above defendants defenses that the plaintiff's loan claims of this case against the above defendants and the claim for indemnity of this case were extinguished by the statute of limitations. Thus, according to the plaintiff's statement No. 4, the above defendants approved the loan obligations of this case and the claim for indemnity of this case on or around May 20, 200 and agreed to repay them in six installments until August 31, 2001. The plaintiff's lawsuit of this case is obvious in the records that the plaintiff's lawsuit of this case was filed on August 31, 2001, which was five years after the expiration of the commercial statute of limitations from August 31, 2001 to May 27, 2007, since each of the above claims against the above defendants against the above defendants were already extinguished by the statute of limitations prior to the filing of the lawsuit of this case, the above defendants' defense has merit.

As to this, the plaintiff, even after June 8, 2002 and August 12, 2005, prior to the expiration of the statute of limitations, filed a judicial claim seeking the performance of an obligation against a house, and therefore, the said statute of limitations has been interrupted. However, even though a judicial claim against a house does not naturally affect the effect of the interruption of prescription against Defendant 4, who is the counter-joint and several surety of the same defendant, as the counter-joint and several surety of the defendant, as a result of a judicial claim against the house, and thus, the re-claim of the plaintiff is without merit without further review.

D. Sub-committee

Therefore, with regard to the amount of subrogation against the Korea Housing and Commercial Bank of Korea among the amount of indemnity of this case jointly and severally against the Plaintiff: KRW 515,552,705 [the sum of the amount stated in attached Table 1’s details of guarantee and statement of indemnity amount” 1 through 3] 498,179,383 + the sum of the amount stated in 17,373,322] of the amount of indemnity amount 498,179,383] and the amount of delay delay damages [the sum mentioned in 17,373,322 of the items of paragraph (d)]; among them, 498,179,383 won from June 15, 199, the date of subrogation, 199 to September 14, 199; 16% per annum from the following day to the date of adjudication; 20% per annum of delay damages from the following day to the date of maturity 21, 2008.

4. Conclusion

Thus, the plaintiff's respective claims against the defendant Samdong Construction and the defendant 2 are justified within the scope of the above recognition, and each remaining claims are rejected as they are without merit, and the plaintiff's claims against the defendant Kudongdong Construction and the defendant 4 are rejected as they are without merit.

[Attachment]

Judges Yang Sung-ju (Presiding Judge)