2013 Ghana 93325 Loans and Guarantee Obligations

Korea Deposit Insurance Corporation in bankruptcy of the 000 Savings Bank

Seoul Central Central District 33

Service place, Nam-gu, Incheon Metropolitan City, 1140 - 11

Representative President Kim Jong-ju

Attorney Choi Jae-sung, Counsel for the plaintiff-appellant

Law Firm Bapus, Attorney Bah-soo, Counsel for defendant-appellant

1. Stock company 00 housing construction;

Seoul Gwanak-gu

Representative In-house Directors:

2. Park 00 (64 - 1)

Gangnam-gu Seoul

Seoul Guro-gu

3. Class 00 (5 - 1)

Seoul Gwanak-gu

[Judgment of the court below]

November 27, 2014

December 18, 2014

1. The Defendant 00 Housing Construction Co., Ltd. shall not be less than KRW 8,820,00,000 and the above amount of money for the Plaintiff:

(a) from May 29, 2010 for gold 4, 800, 000, and 000 won:

(b) from May 8, 2010 for gold 960, 000, and 000 won:

(c) from May 31, 2010 for gold 660, 000, and 000 won:

(d) from May 8, 2010 for gold 2, 400, 000, and 000 won:

By August 13, 2014, 5% per annum and 20% per annum from the next day to the day of full payment.

2. The plaintiff's primary claim against the defendants and the conjunctive claim against the defendant Park 00 and Park 00 are dismissed, respectively.

3. Of the litigation costs, 10% of the portion arising between the Plaintiff and Defendant 00 Housing Construction Co., Ltd. shall be borne by the Plaintiff, the remainder by Defendant 00 Co., Ltd., and the portion arising between the Plaintiff and Defendant 00 and Chapter 00 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Mainly, Defendant 00 Housing Construction Co., Ltd. shall be limited to 8, 820, 00, 000 won and the above amount, 4, 800, 000 won and 12% per annum from May 29, 2010 to August 30, 2010, 960, 000, 000 won and 0% per annum from May 8, 2010 to 0, 00, 00 won per annum from 0,000 to 0,00 won per annum from 0,00 won per annum from 0,000 to 8,00 won per annum from 0,00 won per annum from 0,000 to 0,00 won per annum from 0,50,000 won per annum from 0,000 to 8,000 won per annum.

Preliminary, from among the money listed in Paragraph (1) of this Article and Paragraph (1) of this Article and Paragraph (1) of this Article, Defendant HabO paid 10,400,000,000 won, and Defendant HabO paid 8,710,000 won, and KRW 00,000.

1. Basic facts

A. The 00 Savings Bank Co., Ltd. (hereinafter “00 Savings Bank”) concluded a credit transaction agreement with Defendant 00 Housing Construction Co., Ltd. (hereinafter “Defendant Company”) on the following terms:

A person shall be appointed.

B. As to loans 1 and 2 as set forth in the above table 1 and 2, Defendant 1’s joint and several liability for loans to Defendant Company 000 Savings Bank (No. 1 loans 5, 200, 000, 000, 2 loans 5, 200, 200, 000, 10, 400, 400, 000, 000).

Defendant Chapter 00 jointly and severally guaranteed Defendant Company’s obligations for loans to 00 savings banks with respect to loans Nos. 3, 4, and 5 of the above table (3 loans No. 3 loans, 080, 00, 000, 430, 430, 000, 5 loans, 5, 200, 8, 710, 000 in total, 8, 710, 000, 000).

C. The Defendant Company paid only the interest on the date on which the interest stated in the above Schedule was received to the 000 Savings Bank, and did not pay the interest and the loan principal from the following day.

D. On September 26, 2012, the 000 Savings Bank was declared bankrupt by the Incheon District Court (2012Hahap9), and the Plaintiff was appointed as the bankruptcy trustee.

[Ground of recognition] Unsatisfy, Gap 1 to 27 evidence, the purport of the whole pleadings

2. Judgment as to the main claim

A. Determination on the cause of the claim

According to the above facts, barring any special circumstance, Defendant Company is obligated to pay the Plaintiff the above amount to the extent of KRW 8,820,00,000, and the agreed interest and delay damages for the Plaintiff out of the above loans, to the extent of KRW 10,400,00,00,000, jointly and severally with the Defendant Company, to the extent of KRW 8,710,000, and KRW 00 to the extent of KRW 8,710,00,00.

B. Determination as to the defendants' assertion

1) Summary of the defendants' assertion

As to this, the Defendants asserted to the effect that a loan agreement equivalent to KRW 14,700,00,000 entered into between the 000 Savings Bank and the Defendant Company is an act of inducing or promoting a crime or other unlawful act in collusion between the 00 and the 000 Savings Bank, which is a private owner of the Defendant Company, and that it violates Article 103 of the Civil Act, and thus, all persons including the Plaintiff, including the Plaintiff, are null and void. Accordingly, the Defendants did not have a duty to pay the above amount to the Plaintiff.

2) Determination

A) The counter-party to a transaction with an executor in breach of trust is basically an independent transaction with an interest separate from the executor in breach of trust, and thus, where the other party to the transaction actively participates in the act in breach of trust, such as inducing the other party to the transaction to commit the act in breach of trust or participating in the whole process of the act in breach of trust, the contract entered into with the executor in breach of trust may become null and void. However, if the degree of involvement does not reach the degree of involvement, and from the overall point of view of legal order, the other party to the transaction requests necessary measures to avoid risks arising from independent transaction and to protect reasonable interests, such as requesting necessary measures to avoid risks arising from the opposite transaction in violation of the law, etc., the social reasonableness can be assessed in light of the motive, purpose and intent of the contract, the necessity or relation of the required measures, and the relation with the other party to the transaction with the executor in breach of trust, even if the other party to the transaction can be known or known that the act in breach of trust constitutes an act in breach of trust, such circumstance alone cannot be deemed null and void (see Supreme Court Decision 267Da.

B) the facts of recognition

This 00 is a person who actually controls 86 corporations, such as Hanyang-dong 1242, Goyang-dong 1242, Goyang-dong, Seoyang-dong 128-6, Gangnam-gu, Seoul, and Cheongdo-dong 128-6, and manages the overall affairs of the above corporations.

EO filed an application for a loan with the Defendant Company under the name of 000 Savings Bank for land purchase funds and other projects for the promotion of the Dongjak-gu Seoul Metropolitan Government New Town redevelopment Project, and the leastO (the 000 savings account is the managing director in charge of loans, all the 00 savings bank’s direct responsibility), le00 (the representative director and the head of the headquarters or the head of the headquarters of the business and the head of the Credit Deliberation Committee who determines whether to grant a loan as a business director) and KimO (the member and the office of the Credit Deliberation Committee who decides whether to grant a loan to the Defendant Company. In carrying out a loan to the Defendant Company, the Defendant Company was actually making a loan by undergoing a formal examination on the ground that the security right established with respect to the site of the business falls short of the loan, without a thorough examination on the possibility of collecting the principal and interest of the business, and carried out an additional large amount of credit without examining the existing source of the loan and the status of the progress of the business.

Furthermore, the loan was approved by attending the 00 largest, 00, 00, 00, 00 (the head of the business headquarters or director, concurrently holding office as a member of the above credit deliberation committee), OO (Secretary of the Credit Deliberation Committee), and O (Audit Committee) at the 000 Savings Bank Review Board, and signing on the loan-related documents so that credit related to 00 can be treated as above.

Accordingly, the 00 savings bank extended 14, 700, 000, 000 won to the defendant company and did not receive full payments as stated in the above table from March 29, 2007 to July 8, 2009.

Accordingly, 00, largest0, 00, 00, 00, 00, 00, 00, 100, 100, 10, 200, 10, 200, 200, 100, 100, and 100, as an officer of a savings bank, violated the above occupational duties as an officer of the savings bank, 14, 700, 700, 000, and 000, 200 savings banks suffered property damage equivalent to the same amount.

This0, the largest0, 00, Ma 00, Ma 00, Ma00, Ma00, Ma00 were prosecuted for the above criminal facts, etc., Ma 00 is punished by imprisonment for 8 years, Ma 360, 000, Ma 000, Ma 000 shall be punished by imprisonment for 7 years and fine for 3 years, Ma 00 shall be punished by imprisonment for 3 years, 5 years, 00, Ma 00, Ma 00 shall be punished by imprisonment for 5 years and 6 years, respectively (Seoul Central District Court Decision 201Da1437, May 3, 2013; Supreme Court Decision 2013No1650, Nov. 1, 2013; Supreme Court Decision 2005Do4214, Apr. 1, 2014).

[Ground of recognition] Facts without dispute, Eul 6, 7, 8

C) According to the above legal principles and the above facts, the instant loan to the Defendant Company of the 000 Savings Bank is deemed null and void as it constitutes an anti-social legal act in collusion with the maximum of 00, 00, 00, 00, 00, 00, 00, 10, 100, 100, 100, and OO, the actual manager of the company, and 00, and OO, the company, engaged in the entire process of the breach of trust against the 00 savings bank, and constitutes an anti-social legal act.

Therefore, the plaintiff cannot seek the payment of the loan against the defendants under the loan agreement of this case which is null and void. Thus, the above assertion by the defendants is justified, and the plaintiff's main claim is without merit.

3. Determination on the conjunctive claim

A. Determination on the cause of the claim

1) According to the above facts, loans to the defendant company of the 000 savings bank constitute anti-social acts and thus, the defendant company constitutes a person who gains profit from another person's property without any legal ground and causes damage to another person. Thus, barring any special circumstance, the defendant company has a duty to repay 4,800,000,000, and to return 960,000,000 per annum from May 29, 2010 to 30,000,000 per annum from 0,000,000 to 10,000 per annum from May 8, 2010 to 10, 200,000 to 10,000 per annum from 10,000 to 20,000 per annum from 20,000 to 10,000 per annum from 20,000 to 10,000 per annum.

2) On the other hand, the Plaintiff sought payment of the above money within the limit of the Defendant Company’s respective collateral guarantee with respect to Defendant GabO and Category 00. Thus, there is no evidence to deem that Defendant GabO and Category 00, which are not the Defendant Company, obtained profit from the above loan. Thus, the Plaintiff’s claim against Defendant GabO and Chapter 00 is without merit.

B. Determination as to the assertion by the Defendant Company

1) Summary of the defendant company's assertion

In this regard, the Defendant Company asserts that, on the basis of the instant loan agreement, a loan lent by the savings bank 000 savings banks to the housing construction company 00 shares held by the Defendant Company is illegal consideration, and thus, it cannot claim the return of the loan in question pursuant to the main sentence of Article 746 of the Civil

2) Therefore, in the case of unfair withdrawals due to the management of the savings bank such as this case, the victim shall be the savings bank. In the case of bankruptcy of the savings bank or savings bank, the trustee in bankruptcy who has claimed the invalidity of the unfair loans and has the obligation to cooperate with the other party in breach of trust and the other party to the loan who have tried to preserve his right. Ultimately, the savings bank shall not be able to receive the plaintiff's claim in the case of seeking the return of the unfair loans due to the management of the 000 savings bank by seeking the return of the unfair loans due to the 00 savings bank's breach of trust (see Supreme Court Decisions 80Da565 delivered on May 27, 1980, 99Na1767 delivered on January 19, 201).

Therefore, the above argument by the defendant company is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendants is dismissed as it is without merit, and the conjunctive claim against the defendant company is accepted as reasonable, and the conjunctive claim against the defendant GabO and Dob0 is dismissed as it is without merit. It is so decided as per Disposition.

Judges Maximum number of judges