Korea Credit Guarantee Fund (Law Firm Democratic, Attorneys White-soo et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm Won, Attorneys Kim Yong-sung et al., Counsel for the plaintiff-appellant)

June 16, 2009

Seoul Central District Court Decision 2008Gahap5719 (main office), 2008Gahap5726 (Counterclaim), October 24, 2008

1. Of the part against the counterclaim in the judgment of the court of first instance, the part against the defendant (Counterclaim plaintiff) corresponding to the amount ordered to be paid below shall be revoked.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 300,000,000 won with 6% per annum from September 28, 2007 to June 25, 2009, and 20% per annum from the next day to the day of full payment.

3. The defendant (Counterclaim plaintiff)'s remaining appeal is dismissed.

4. The costs of lawsuit relating to a counterclaim, among the costs of lawsuit, shall be borne by the plaintiff (a counterclaim defendant) by aggregating the first and second instances.

5. Paragraph 2 can be provisionally executed.

1. Purport of claim

A. Purport of the principal claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay 80,823,405 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and 6% per annum from September 28, 2007 to the service date of a copy of the instant complaint, and 20% per annum from the next day to the day of full payment.

B. Claim of the counterclaim

The plaintiff shall pay to the defendant 300,000,000 won with 6% per annum from September 28, 2007 to the service date of a duplicate of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part concerning the counterclaim shall be revoked. The plaintiff shall pay to the defendant the same amount as the claim of the above counterclaim.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of Gap evidence of 1 to 6 (including branch numbers if there are branch numbers), Eul evidence of 1 to 5, and the whole purport of arguments.

On May 20, 2002, the Defendant concluded a credit transaction agreement with the ○ industry and loaned KRW 5.8 billion to the ○ industry (hereinafter “instant loan”).

○On the other hand, the Plaintiff concluded a credit guarantee agreement with the ○ industry and provided a credit guarantee with 85% guarantee rate for the above loan, but changed the above guarantee rate to 80% on May 11, 2006 (hereinafter “the above credit guarantee”).

Before the instant loan, the Defendant extended a loan to the ○○ industry to secure the claim for the relevant loan, and on the land and its ground (hereinafter “instant real estate”), on May 25, 2001, 2001, the Defendant created a collateral security right of KRW 2.64 billion with the maximum debt amount of KRW 1 billion with the maximum debt amount of KRW 1 billion with the △△△△△△△△△△△ on August 2, 2004. The Defendant was set up a collateral security right of KRW 500 million with the maximum debt amount of KRW 1 billion with the maximum debt amount of KRW 1 billion on August 2, 2004. The Defendant was set up a collateral security right of KRW 500 million with the maximum debt amount

The Defendant and the ○○ industry agreed to secure the claim arising after the establishment of the said right as a comprehensive collateral (hereinafter the above maximum debt amount is referred to as the “instant right to collateral”) with respect to the said right to collateral (hereinafter the “instant right to collateral”).

However, on November 28, 2006, the ○ Industry did not pay the principal repayment of the instant loan. Accordingly, on December 21, 2006, the Defendant notified the Plaintiff of the occurrence of a credit guarantee accident, and received a voluntary decision to commence the auction on the instant real estate from the Suwon District Court on February 2, 2007.

On November 23, 2006, prior to the notification of the occurrence of the above credit guarantee accident, the Plaintiff provisionally attached the instant real estate with the amount of KRW 1.5 billion out of the indemnity bonds to be held by the ○ industry as the preserved bond.

○○ thereafter, on March 9, 2007, the Plaintiff subrogated for KRW 3,926,567,448 to the Defendant based on the credit guarantee in this case.

○○ and the Defendant concluded the following agreements on the same day.

▷피고는 이 사건 근저당권 중 6억 8,000만 원 부분을 원고에게 이전한다.

▷이 사건 근저당권(미 이전분 포함)에 의한 배당(회수) 금액의 충당순서는 아래 각 호의 순서에 따른다.

(1) Remaining bonds as of the dividend date except for guaranteed side loans by the transferor.

(2) The difference between overdue interests and agreed interest accrued until the date on which the guaranteed obligation is discharged.

(3) The amount divided in proportion to the ratio of partial guarantee of the transferor and transferee to the guarantee side loan.

○ The distribution schedule was prepared on September 27, 2007 in the said voluntary auction procedure with respect to the instant real estate. The Defendant received a total of KRW 4.14 billion as a mortgagee, and the Plaintiff received a dividend of KRW 1.5 billion as a person holding the provisional seizure.

2. The defendant's assertion on the counterclaim

The defendant appealed against the judgment of the first instance court of this case only about the counterclaim part, and the defendant's argument about the counterclaim part is as follows.

According to Article 14 of the terms and conditions applicable to the credit guarantee of this case, 1.5 billion won, which the Plaintiff received as a provisional seizure authority in the course of the voluntary auction for the real estate of this case as above, shall be divided in proportion to 80%, which is the Plaintiff’s guarantee ratio. Thus, the Plaintiff is obligated to pay to the Defendant the remaining amount of KRW 300 million (1.5 billion x 20%) excluding the amount equivalent to 80% of the guarantee ratio among the above KRW

3. Determination

A. (1) In the instant credit guarantee, as seen earlier, the rate of guarantee was set at 80%, and the terms and conditions applicable to the instant credit guarantee (Evidence No. 3, hereinafter “instant terms and conditions”) set forth as follows.

▷제12조 제1항 : 기금(원고)은, 보증부대출 채권액 중 미회수액에 보증비율을 곱한 금액으로 보증금액을 초과하지 아니하는 원금 등을 보증채무로 이행한다.

▷제16조 제4항 : 채권자(피고)는 기금으로부터 보증채무 이행을 받는 즉시 보증부대출 관련 담보가액에서 보증부대출 이외의 피담보채권을 차감한 담보여유액에 보증비율을 곱한 금액에 해당하는 담보권을 원고에게 이전한다. 이 경우 기금은 이전받은 담보권으로부터 채권자의 보증부대출 이외의 채권에 우선하여 변제받을 권리를 가진다.

(2) In a case where a person who has a legitimate interest such as a guarantor, etc. pays a part of a claim on behalf of a debtor, the person who subrogated for △△△△ has the previous creditor's right to claim and security within the scope of the value of the performance performed by him, and therefore, in a case where the creditor has a mortgage over the real estate, the creditor is obligated to make an additional registration of partial transfer of the mortgage due to a payment by subrogation to the subrogation, but even in the case of △△△△, the creditor has the right to preferential payment against a part of the subrogation (see Supreme Court Decision 88Meu1797, Sept.

(3) In light of the above circumstances, Articles 12(1) and 16(4) of the Terms and Conditions of this case provide that, immediately after the Plaintiff, a guarantor, performed the guaranteed obligation, the Defendant, as the obligee, transferred the security right related to the guaranteed loan to the Plaintiff, but the Defendant does not have the right to preferential reimbursement against the Plaintiff. As such, it strengthens the Plaintiff’s right as the subrogated, while it corresponds to the limitation that the Plaintiff’s guaranteed obligation is limited by the guaranteed rate, the above Plaintiff’s right is limited by the guaranteed rate.

B. (1) Meanwhile, Article 14 of the Terms and Conditions of this case asserted by the Defendant as above was stipulated as follows.

▷보증채무 이행 후 채무자 등으로부터 회수한 금액은 회수기관 채권의 변제에 충당하며, 기금(원고)과 채권자(피고)의 책임분담비율로 정산하지 아니한다.

▷다만, 기금과 채권자 중 어느 일방이 임의 매각방법에 의하여 담보물을 매각한 경우와 당해 어음금의 상환을 받은 경우에는 보증비율에 따라 그 회수금을 정산한다.

(2) In a case where there exists a security right related to a guarantee loan, the Plaintiff, the guarantor, may immediately transfer the security right from the Defendant pursuant to Article 16(4) of the Terms and Conditions of this case as seen earlier and have preferential right to payment against the Defendant. If the security is sold by a voluntary sale method, the sale price is the conversion of the security, and it is reasonable to maintain the above Plaintiff’s right as to the sale price. Meanwhile, it is reasonable to limit the Plaintiff’s right to maintain the same as the Plaintiff’s transfer of the security right.

(3) In light of the above circumstances, Article 14 of the Terms and Conditions of this case provides that the Plaintiff shall have the right to the conversion of the collateral, if there is a security right related to the floating loan.

In addition, as seen earlier, the Plaintiff and the Defendant agreed on March 9, 2007, upon the Plaintiff’s subrogation, to transfer to the Plaintiff the portion of KRW 680 million out of the instant right to collateral security, and to cover the amount of dividends under the instant right to collateral security, including the non-transferable portion, to the “amount divided by the transferor (the Defendant) and the transferee (the Plaintiff) in proportion to the partial guarantee ratio,” is in the same context.

C. However, according to the above, the plaintiff received 1.5 billion won as a provisional seizure authority in the voluntary auction procedure for the real estate of this case, and the real estate of this case as a security for the loan of this case is the conversion of the above security amount. Thus, the above 1.5 billion won should be divided among the plaintiff and the defendant according to 80%, which is the plaintiff's guarantee ratio. Therefore, among the above 1.5 billion won, the plaintiff has the right to 1.2 billion won (1.5 billion won x 80%) equivalent to 80 billion won, which is its own guarantee ratio, and the remaining 30 million won (1.5 billion won x 20% x 20%) shall be returned to the defendant.

Therefore, the plaintiff is obligated to pay legal interest or delay damages at the rate of 6% per annum under the Commercial Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from September 28, 2007 to June 25, 2009, which is the date on which the plaintiff received the above amount from the defendant from September 28, 2007, which is the day following the day on which the plaintiff received the above amount of KRW 300 million to the defendant, until June 25, 2009.

4. Conclusion

Therefore, the defendant's counterclaim of this case is justified within the above recognition scope, and the remainder of the counterclaim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant falling under the above recognition scope among the part concerning the counterclaim of the judgment of the court of first instance is revoked, and the defendant's claim of this case is accepted within the above recognition scope, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition.

Judges Cho Young-hee (Presiding Judge)