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(영문) 서울남부지방법원 2018.01.09 2016가단252670
대여금
Text

1. The Defendants are jointly and severally and severally liable to the Plaintiff for KRW 103,935,018 and KRW 102,66,627 among them.

Reasons

1. Facts of recognition;

A. On February 27, 2015, the Plaintiff entered into a loan agreement with Defendant A Co., Ltd. (former Co., Ltd.; hereinafter “Defendant Co., Ltd.”) by setting the loan amount of KRW 100,000,000 per annum, interest rate of KRW 4.24% per annum, and delay damages rate of KRW 12% per annum, and around that time, the Plaintiff loaned KRW 100,000,000 to the Defendant Company.

B. At the time of the instant loan agreement, Defendant B entered into a transparent management performance agreement (hereinafter “instant transparent management agreement”) with the following as the representative director of the Defendant Company:

Section 1 (Purpose) This Arrangement aims at fulfilling its management obligations on the debtor with respect to the following lending arrangements:

1. Obligor: Defendant company;

2. Loan agreement: The loan agreement dated February 27, 2015;

3. Amount of loans: 100,000,000 won;

4. Term of loan: From February 27, 2015 to February 27, 2018, the contractual person under Article 2 (Management Obligations) will faithfully perform the following management obligations, instead of being exempt from joint subscription under a loan agreement under Article 1:

5. When disposing of not less than 1/2 of the shares in possession as at the time of withdrawal from management or conclusion of a transparent management performance agreement, Article 3 (Liability due to Breach of Duty) (1) Where the contract person is the actual business owner who exercises substantial power and influence over the debtor's corporate management and violates the management obligation provided for in Article 2, the contract person shall be jointly and severally liable with the debtor for the occurrence of the period prescribed in Article 1 and the future obligation from the time prescribed in paragraph (3) of this Article.

Article 6 (Contents of Obligations under Article 3) (1) The surety shall bear the obligation jointly and severally with the obligor in accordance with the following provisions:

3. Ceiling amount of collateral guarantee: 120,000,000 won; and

C. After April 4, 2016, Defendant Company lost the benefit of time due to failure to repay the principal and interest of loans from around April 4, 2016, and the amount of principal and substitute payments, etc. unpaid under the instant loan agreement until October 19, 2016 are totaled 102,66.

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