The Korea Export Insurance Corporation (Law Firm Jinjin, Attorneys Sung-sik et al., Counsel for defendant-appellant)

Korea Technology Finance Corporation (Attorney Lee In-hee, Counsel for defendant)

March 11, 2010

1. Of the dividend table prepared by the court on June 18, 2009 with respect to the case of auction of real estate (No. 2007) in Incheon District Court Decision 2007Taeng 61023, the dividend amount to the plaintiff shall be corrected to KRW 87,963,718, and KRW 216,361,936 to the defendant shall be corrected to KRW 128,398,218.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. A New Bank Co., Ltd. (hereinafter “New Bank”) altered its firm on December 30, 200 with its maximum debt amount of 1, 300,000,000 won (No. 1,70,000,000 won (No. 5,000,000 won) and 4211,30,000,000 won for factory site and its ground buildings owned by 30,000,000,000 won (No. 1,70,000,000,000,000 won (No. 84324,000,000,000) as of December 29, 200, with the maximum debt amount of 30,000,000 won (No. 127,40,000,000 won) as of December 29, 2000).

B. Around January 22, 2007, the Plaintiff concluded an export credit guarantee agreement with respect to the obligations owed by the non-party company to the new bank. The Plaintiff subrogated to the new bank for the principal and interest of loan KRW 490,868,986 on November 21, 2007 in accordance with the above export credit guarantee agreement.

C. The plaintiff filed a lawsuit for indemnity against the non-party company and joint guarantor, and sentenced the non-party company to pay to the plaintiff 494,798,186 won for indemnity due to the above subrogation and 490,868,986 won for 11% per annum from November 22, 2007 to April 14, 2008 and 20% per annum from the next day to the date of full payment. The above judgment became final and conclusive around that time.

D. The defendant entered into a credit guarantee agreement on October 24, 200 with respect to the debt owed by the non-party company to the new bank on October 10, 200, October 10, 2002, and November 20, 2006, and subrogated the loan amount of KRW 717,709,197 on November 15, 2007 to the new bank on November 15, 2007 in accordance with the above credit guarantee agreement, and completed the additional registration for partial transfer of KRW 340,800,000 with respect to the right to collateral security on November 15, 207, and the additional registration for partial transfer of KRW 368,50,000 with respect to the right to collateral security on 111.

E. As to the real estate in this case, the procedure of voluntary auction was commenced on October 17, 2007 at the request of the new bank, Incheon District Court No. 2007ta, 61023, and the registration of provisional seizure on August 14, 2007 was completed on August 20, 2007 by the decision of provisional seizure on August 13, 2007 (In Incheon District Court 2007Kahap1658), and on August 27, 2007, the registration of provisional seizure was completed on August 20, 207.

F. In the voluntary auction procedure for each real estate of this case (Seoul District Court Decision 2007Ma61023), on June 18, 2009, the auction court prepared a distribution schedule that distributes KRW 3,818,805,167 to the new bank in the order of 3rd, 2009, and KRW 216,361,936 in the order of 4rd, as shown in the attached sheet. The plaintiff raised an objection against KRW 500,000 out of the amount of dividends of the new bank, and KRW 100,000,000 out of the amount of dividends of the defendant, and filed the lawsuit of this case on June 24, 2009.

G. The amount of claims up to the date of distribution of the new bank, which received a demand in the auction procedure of this case, is KRW 3,819,875,976, the amount of claims of the defendant, KRW 922,374,754, the amount of claims of the defendant, KRW 631,90 [=494, 798, 186 + 21,450,302 + 21,450,986 + KRW 490,868,986 + 11%) + 115,656,802 + 490,868,986 x 20%) + 430/365).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4 (including paper numbers), and the result of the response to the order to submit financial transaction information, the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

The plaintiff and the defendant, as the subrogation for a new bank, have the same priority in collateral security, so the defendant's dividends shall be distributed proportionally according to the amount of the claims and the plaintiff.

B. Determination

(1) The right to collateral security is to secure, within a certain limit, claims remaining during the period for the settlement of accounts among many unspecified and unspecified claims arising from continuous transactions. The secured claims are continuously increased or decreased until the transaction is terminated, and the right to collateral security holder requests auction for reasons of the non-performance of the secured claims shall become final and conclusive at the time of application for auction. Therefore, a claim arising after the right to collateral security has become final and conclusive shall not be secured by the right to collateral security, and if part of the claim has been subrogated during the period when the secured claim of the right to collateral security has not been determined, the right to collateral security shall not be transferred to the subrogation (see Supreme Court Decision 200Da5451, Dec. 26, 200).

(2) In a case where a person who has a legitimate interest in repayment on behalf of the debtor makes a payment for a part of the secured obligation on behalf of the debtor, the subrogated person shall legally acquire the rights to the claim and security previously held by the previous creditors within the extent of the value of the repayment, regardless of whether a supplementary registration of partial transfer of the right to collateral has been made, and in the case where several persons have discharged a part of the claim with different dates, he shall be deemed to have completed the right to collateral in proportion to the value of the repayment which he has discharged as a partial subrogation. In the case of paying dividends by exercising the right to collateral, unless there are other special circumstances, he shall distribute it in proportion to the amount of each obligation (see Supreme Court Decision 2004Da276

(3) The right to collateral security, 9 to 11, which was completed on each of the instant real estate, is a blanket collateral security to bear all obligations that the non-party company owes to the new bank at present and in the future. On October 17, 2007, the fact that the new bank received a decision to commence voluntary auction from the Incheon District Court Decision 2007Ma61023 on October 17, 2007, entered into a credit guarantee agreement for the obligations of the non-party company to the new bank that occurred prior to the commencement of auction. Since the plaintiff and the defendant subrogated to the new bank after the decision to commence auction, the plaintiff and the defendant naturally acquired the right to collateral security, regardless of whether the new bank completed a supplementary registration for partial transfer of collateral security, and completed the auction in proportion to the amount of the repayment.

Therefore, the plaintiff and the defendant should distribute dividends in proportion to the amount of their respective claims in the exercise of the right to collateral security of a new bank. The plaintiff and the defendant should distribute dividends to the plaintiff 87,963,718 won [216,361,936 won x 631,905,290/290 (631,905,290 won + 922,374,754 won)] among the distribution schedule of this case, 128,398,218 won (216,361,936 won - 87,963,718 won) to the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

[Attachment]

Judges Kim Jae-young