Pulp Capital Co., Ltd. (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Korea Deposit Insurance Corporation (Law Firm Doz., Attorneys Yellow-Gyeongng et al., Counsel for defendant-appellant)

A bankrupt, a bankruptcy trustee and one other (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

. 23, 2004

Seoul Central District Court Decision 2001Gahap68667 Delivered on July 12, 2002

1. Of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 1,09,650,000 to the plaintiff and its equivalent to 5% per annum from May 18, 2001 to May 31, 2003, and the part against the defendant ordering payment of KRW 20% per annum from the next day to the full payment date shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total cost of the lawsuit between the plaintiff and the defendant shall be ten minutes and one of them shall be borne by the plaintiff, the remainder by the defendant, and the cost of the participation by the supplementary intervenor shall be borne by the supplementary intervenor.

1. Purport of claim

The defendant shall pay to the plaintiff 1,09,650,000 won with 5% per annum from May 18, 2001 to the delivery date of the complaint of this case, and 25% per annum from the next day to the full payment date.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Determination on the cause of the claim

(a) Facts of recognition;

The following facts may be acknowledged as either in dispute between the parties or in Gap evidence 1 to 3 by integrating the whole purport of the pleadings.

(1) On October 4, 200, the Plaintiff loaned KRW 1,030,000,000 to the Sampy Co., Ltd. Co., Ltd. (hereinafter “ Sampy”) at the interest rate of 14.5% per annum, and in order to secure this, the maturity period for Non-party 1’s East Asia Mutual Savings and Finance Company (hereinafter “Dong Asia Mutual Savings and Finance Company”) was 1,09,650,000 (number 101-07-062720) claims on October 4, 200, and the East Asia Mutual Aid and Finance Company approved the above pledge without any reservation on October 6, 200.

(2) The East Asia’s Fund was suspended from paying claims, such as deposits, against the Defendant’s insured financial institution on December 9, 200. Accordingly, on April 12, 2001, the Korea Credit Depository, a resolution financial institution, on behalf of the Defendant, set the insurance payment period from May 3, 2001 to May 17, 2001, and was declared bankrupt on June 15, 2001.

B. Determination

The plaintiff as the pledgee of the above deposit claim can directly claim insurance money acquired by the non-party 1 to the defendant under the Depositor Protection Act and the Enforcement Decree thereof. Thus, the defendant is obligated to pay to the plaintiff the insurance money equivalent to the above deposit amount of 1,09,650,000 won and 5% per annum under the Civil Act from May 18, 2001 to May 31, 2003, the day following the expiration date of the insurance payment period, and 20% per annum under the Special Act on the Promotion, etc. of Civil Proceedings from the next day to the full payment date.

2. Judgment on the defense

(a) Whether the pledge agreement is void;

The defendant extended KRW 1,030,00,00 to the plaintiff Triririsung to secure it, and set up a pledge on the deposit claim against the Dongridong Treasury with the non-party 1. It is against the principle of good faith or abuse of rights, and the plaintiff's right is not known or invalid as the plaintiff's defense is not known because the Dongridong Treasury's loan to the non-party 2 in order to escape Article 37 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 6429 of March 28, 201) which prohibits the plaintiff from lending to the non-party 1. The above pledge contract is null and void in violation of Article 37 (1) of the former Mutual Saving and Finance Company Act, which is a mandatory law, and even if not, it is not so, it is against the principle of good faith or abuse of rights, and it is not known that the plaintiff was aware of or was not aware of the above non-party 1's defense.

Article 37 (1) of the former Mutual Savings and Finance Company Act provides unfair loans to investors closely related to the mutual savings and finance company, so it is likely that the capital structure of the mutual savings and finance company might deteriorate. However, if it is viewed as effective provisions, it would rather contribute to the establishment of credit order by fostering the mutual savings and finance company and rationally regulating it, and it would substantially go against the purport of the Mutual Savings and Finance Company Act, which was enacted for the purpose of protecting its customers. Therefore, even if the contract was concluded for the purpose of avoiding the above provision, it does not become null and void. 2) Since the above contract was concluded for the purpose of avoiding the above provision, it is difficult to view that the plaintiff's exercise of rights as the pledgee of the above deposit claim was contrary to the principle of good faith or abuse of rights. 3. 1. 1. 3. 1. 3. 3. 1. 10 . 1. 10 . 4. 0 . 1. 10 . 1. 0 . 1. 4 . 1. 0 . 1. . 1. . . 1. 0. 1. . . 1. . 1. . . 1. . . . . . 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Whether to set off or deduct

(1) Whether the plaintiff offsets

The defendant defenses that the above deposit claim and the loan loan claim in discount amount of KRW 3 billion against the plaintiff at the same time as the above deposit claim were extinguished on an equal amount as the plaintiff's offset on December 18, 2000. Thus, there is no evidence to acknowledge that the plaintiff expressed his intent of offset against the defendant as alleged by the defendant, and there is no evidence to support that the plaintiff expressed his intent of offset against the defendant. However, according to each statement in the evidence No. 4-1 and No. 21-2 of the evidence No. 21, the plaintiff's objection against the above deposit contract on December 15, 2000, on the ground that the above loan was not repaid on December 15, 200, the above deposit claim was cancelled as the automatic claim with the above deposit claim on December 20, 200, and the defendant's reply against the plaintiff on December 20, 201.

(2) A set-off based on the claim against the non-party 1 of the East Asia Treasury.

(A) Defenses by the Defendant and the Intervenor

① On October 4, 200, Nonparty 1’s above deposit amount is KRW 1,09,650,000 remaining after deducting KRW 350,000 from the stamp to be attached to loan documents from Nonparty 1’s treasury of East Asia, which was loaned from KRW 1,10,00,00,000, and as of the date of payment announcement of insurance money, the East Asia’s treasury has a claim against Nonparty 1 as to the above principal and interest of loan amount of KRW 1,223,210,729, and Nonparty 1 has a claim against Nonparty 2 as of the date of payment announcement of insurance money. ② In order that Nonparty 2, an investor, avoided Article 37(1) of the former Mutual Saving and Finance Company Act to get a loan from the East Asia’s treasury by lending his name, Nonparty 1 has to deposit KRW 1,100,000,000 from the East Asia’s treasury using the name of Nonparty 1, and thus, the Defendant’s act of joint tort and damages amount is 100.

(B) Determination

Even if Nonparty 1, as alleged by the Defendant, bears the obligation of loans or compensation for damages to the East Asia’s Fund, the provision that the aggregate amount of obligations shall be deducted from the aggregate amount of claims, such as deposits, under Article 32(1) of the Depositor Protection Act cannot be applied to “claims, such as deposits, which are the object of the pledge.” Meanwhile, if the garnishee, without reservation of objection, consents to the pledge without reservation of objection, the pledgee cannot oppose the pledge. The fact that the East Asia’s Fund consented to the pledge on the Plaintiff’s deposit claim on October 6, 200 without any objection, is as seen earlier, but even if the East Asia’s Fund consented to the establishment of the pledge, the Plaintiff, who was the pledgee, knew or was unable to know by gross negligence, it cannot be found that Nonparty 1 was aware of the reasons that occurred to the Plaintiff, the pledgee, at the time of such consent, or that the evidence of the remainder of the loans under subparagraphs 1 through 3 and 15, 18 through 2, 16 or 17, respectively, as evidence or evidence of the above.

(3) A credit or set-off based on the claim against the plaintiff of the East Asia Treasury.

(A) Defendant’s defense

At the time of April 12, 2001, which was the date of the public notice on the payment of the insurance money of this case, the Dongdong Treasury held claims against the plaintiff 6,906,746,575 won against the plaintiff. However, in accordance with Article 32 (1) of the Depositor Protection Act, there is no insurance money to be paid by the defendant to the plaintiff by offsetting the above claims against the plaintiff of Dongdong Treasury on behalf of the defendant who paid the insurance money to other depositors of Dongdong Treasury in bankruptcy, in order to compensate for the claims arising therefrom, in lieu of the Dongdong Treasury, in order to compensate for the claims arising therefrom.

(B) Determination

Even if the East Asia Treasury has a claim against the plaintiff 6,906,746,575 won against "depositors, etc." under Article 32 (1) of the Depositor Protection Act, the insurance money paid by the defendant to "depositors, etc." refers to the amount obtained by deducting the total amount of claims owed by each depositors, etc. to the insured financial institution as of the date of the announcement of payment of insurance money from the total amount of claims such as deposits by depositors, etc., and the above "depositors, etc." refers to "persons who hold the principal, principal, interest, interest, profits, insurance, and other agreed monetary claims against insured financial institutions through financial transactions such as deposits, etc. under Article 2 subparagraph 2 of the Depositor Protection Act (Article 2 subparagraph 3 of the Depositor Protection Act)" and therefore, the pledgee for claims such as deposits, etc. do not constitute a pledgee of the deposit claim, and even if the plaintiff, who is the pledgee of the deposit claim, directly claims against the insured financial institution, the insurance money cannot be calculated by deducting them, 2.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition and the remainder is dismissed as there is no ground. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant who ordered payment exceeding the above scope of recognition is revoked and the plaintiff's claim corresponding to this part is dismissed, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition.

Judges Don-man (Presiding Judge)