Seoul High Court Decision 200Na14887 decided May 1, 2001

Defendant 1 and one other

Defendant 2 (Law Firm Kim Shin & World, Attorneys Lee Im-soo et al., Counsel for defendant-appellant)

October 7, 2004

Seoul District Court Decision 2001Gahap70080 Delivered on September 30, 2003

1. The plaintiff's appeal against the defendant 3 among the judgment of the court of first instance is dismissed.

2. As follows, paragraphs 1 and 2 of the judgment of the court of first instance against Defendant 1 and 2 are modified as follows.

A. Defendant 1 shall pay to the Plaintiff 2,500,000 won, Defendant 2 shall be 180,667,828 won out of the above amount, and each of the above amounts shall be 5% per annum from November 20, 2001 to November 4, 2004, and 20% per annum from the following day to the date of full payment.

B. The plaintiff's remaining claims against the defendant 1 and 2 are dismissed.

3. Of the total litigation cost, the part arising between the Plaintiff and Defendant 1 is assessed against the Plaintiff, the part arising between the Plaintiff and Defendant 3 is assessed against the Plaintiff, the 9/10 of the part arising between the Plaintiff and Defendant 2 is assessed against the Plaintiff, and the remainder is assessed against Defendant 2.

4. The part for which no provisional execution has been declared by the first instance court from among the provisions of subparagraph 2 (a) may be provisionally executed;

1. Purport of claim

The defendants jointly and severally pay to the plaintiff 2,500,000,000 won with 25% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The purport of the Plaintiff’s appeal is to revoke the Plaintiff’s failure portion of the judgment of the court of first instance, and the Defendants jointly and severally pay to the Plaintiff 2,500,000,000 won with 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment.

B. Purport of appeal by Defendant 2: Revocation of the part against Defendant 2 among the judgment of the court of first instance, and the plaintiff's claim against that part is dismissed.

1. Basic facts

[Ground of recognition] Facts without dispute, Gap 1, 2, Gap 3, and 4-1 through 10, Gap 5, 6, and 10-5-5-1 through 10, Gap 10-9, 10, Gap 11, Gap 12-1, Gap 14, Gap 15, Gap 44, Eul 3, Eul 4, 5, 10, and 11, non-party witness of the first instance trial, non-party 2's testimony, non-party 3, 4, and 5's testimony, the purport of the whole pleadings.

A. Status of the parties

(1) The Korea Mutual Savings and Finance Company (hereinafter “Korea Mutual Savings and Finance Company”) is a financial resolution institution established pursuant to Article 26-3 of the Depositor Protection Act for the purpose of acquiring the business or contract of an insolvent Mutual Savings and Finance Company to protect depositors and maintain the stability of the financial system, and arranging the insolvent Mutual Savings and Finance Company. On December 31, 2001, during the instant lawsuit, the Plaintiff was merged with the Plaintiff and taken over the instant litigation procedure.

(2) Mutual savings and finance companies (hereinafter “mutual savings and finance companies”) are mutual savings and finance companies established on December 17, 1982 under the former Mutual Savings and Finance Company Act (amended by Act No. 6429, Mar. 28, 2001) as the main business of mutual savings and finance companies.

(3) Defendant 1, who is a major shareholder of the Korea Life Insurance Co., Ltd. (hereinafter “Korea Life Insurance Co., Ltd.”) and more than 10 affiliated companies, and was in charge of actual management, is an oligopolistic shareholder with 37.2% of the total number of shares issued by the Korea Life Insurance Co., Ltd. under his own name, 14.7% of the total number of shares issued by the Korea Life Insurance Co., Ltd., and 10.4% of the total number of shares issued by the Korea Life Insurance Co., Ltd., (hereinafter “Korea Life Insurance Co., Ltd.”) under the name of Nonparty 3 who was in charge

(4) The non-party 6 served as the representative director from July 1, 1993 to December 30, 1995; the non-party 7 from the following day to February 28, 1997; and the defendant 2 from March 3 to September 20, 1999; the defendant 3 served as the representative director of the living cooperative from June 30, 1993 to June 30, 1996; the non-party 3 was from September 7 to August 28, 1997; and the non-party 3 served as each executive director from September 18, 198 to March 18, 199.

(b) An insolvent management of the credit cooperative;

(1) Loans to investors (hereinafter “investment loans”).

(A) Legal provisions

According to Article 37 subparagraph 1 of the former Mutual Savings and Finance Company Act (amended by Act No. 5738 of Feb. 1, 199) and Article 30 (1) of the Enforcement Decree of the same Act, mutual savings and finance companies shall not provide loans, etc. to investors who own not less than 2/100 of the total number of issued voting stocks.

(b) Loan details

1) On March 31, 1997, the Youngwon Tourism Co., Ltd. (hereinafter “Fol Tourism”) was an investor who acquired 10% of the total number of shares issued by the Golwon on March 31, 1997, and thus, it is not possible to obtain a loan from the Golwon pursuant to the loan regulations. Defendant 2 was a company whose representative director was employed on June 27, 1998 and July 23, 1998, and 2.4.9 million won in total and 2.50 million won in the name of Linwon Tourism Co., Ltd. and did not make a sufficient investigation into the credit or financial status of the Minwon Tourism and did not secure a valid security. As a result, it became impossible to recover 180,67,828 won out of the current loans.

2) In addition, between November 24, 1998 and April 19, 1999, Defendant 2, who had worked as the representative director of the Living Treasury, exchanged all of 3,190,000 won in the name of a third party to the original tourism on five occasions as shown in the detailed statement of dealing with investment loans in the attached Form, and exchanged all of 3,190,000 won in the name of the third party (Provided, That the loans of 4,90,000 won in the attached Form 26, 1999, were refunded to the loans of 4,90,000 won in the attached Form 1), Defendant 3 served as an executive director when loans for wind design to a stock company in the attached Form 3.

(2) Excess loans on the same credit limit (hereinafter “excess loans”)

(a) legal provisions and the limit of credit extended to the same person by the

According to Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998) and Article 8 (1) 1 of the Enforcement Decree of the same Act, mutual savings and finance companies provide that loans, etc. to small enterprises and small and medium enterprises under Article 2 of the Framework Act on Small and Medium Enterprises shall not exceed 10/100 of their equity capital (within 5/100 of their equity capital, reserves, and other surplus before the amendment by Act No. 4867 of Jan. 5, 1995, within 20/100 of their equity capital after the amendment by Act No. 5501 of Jan. 13, 1998) and that three billion won of their equity capital (within the limit of loan amount of KRW 4 billion after the amendment by Presidential Decree No. 15738 of Apr. 15, 199) shall not exceed the amount of their equity capital and the amount of their loan to the same person.

(b) Loan details

1) 대생금고는 별지 동일인대출한도 초과취급명세(이하 ‘초과취급명세’라 한다) ⑴ 내지 ⑼ 기재와 같이, 소외 1을 비롯한 9인의 실차주에 대하여 실차주 또는 제3자의 명의를 사용한 대출방법을 통하여 대출을 해오고 있었는데, 앞에서 본 소외 6, 7, 피고 2는 그들이 각 대생금고의 대표이사로 근무하고 있던 중 초과취급명세 ⑴ 내지 ⑼의 각 해당란 기재와 같이 초과대출을 하면서, 차주들의 신용이나 재산상태 등에 관하여 충분한 조사도 하지 아니하고 또한 유효한 담보물을 전혀 확보하지 못하거나 부족하게 확보하여 결국 해당 손실예상액란 기재 금액을 회수할 수 없게 되었다.

2) In addition, as mentioned above, Defendant 2 served as a director, Defendant 3 as a director or auditor.

(c) Bankruptcy of a large-scale credit cooperative;

On October 18, 199, when the financial structure has deteriorated due to the above-mentioned investor loan, excess loan, etc., management guidance was conducted by the Financial Supervisory Service from October 18, 199, from October 22, 199, and was dissolved due to the revocation of business authorization by the Financial Supervisory Commission on January 29, 200, and was declared bankrupt by the Suwon District Court on August 1, 200, and on August 1, 200, when the data on the balance sheet as of August 1, 200, the date of the declaration of bankruptcy was evaluated as of August 1, 200, the actual asset value of KRW 94.76 billion, the actual debt amount of KRW 249.4 million, and the complete capital erosion was full.

(d) Transfer and merger of deposit claims of Korea Mutual Savings and Finance Company; and

(1) Meanwhile, the deposit account holders listed in the “creditor” column of the attached deposit claim and the details of assignment of claims have each deposit claim equivalent to the amount indicated in the “total sum of deposits, etc.” column of the attached Table.

(2) On January 14, 200, Korea Mutual Savings and Finance Company paid 3,725,789,603 won in total to the above deposit account holders pursuant to the Depositor Protection Act, and received each of the above deposit claims from the above deposit account holders, and it accepted each of the above deposit claims on the same day.

2. Determination:

A. Summary of the plaintiff's assertion

The plaintiff is jointly and severally liable pursuant to Article 37-3 (1) and (2) of the former Mutual Savings and Finance Company Act (amended by Act No. 203 of Jan. 28, 2000), and the defendants, who are oligopolistic stockholders or officers of the mutual savings and finance company, are jointly and severally liable to pay deposit claims to the plaintiff who takes over the deposit claims from the person who has taken over the deposit claims from the

(b) Purport of Article 37-3 of the former Mutual Savings and Finance Company Act;

Article 37-3(1) of the former Mutual Savings and Finance Company Act (hereinafter “instant provisions”) which was enforced at the time of August 1, 200 when the bankruptcy of an insolvent mutual savings and finance company was declared to be liable for jointly and severally with the mutual savings and finance company for the obligations related to the deposits of the insolvent mutual savings and finance company (excluding auditors). In this case, the Constitutional Court provides that the executives of the mutual savings and finance company and oligopolistic shareholders (referring to oligopolistic shareholders prescribed in Article 39(2) of the Framework Act on National Taxes) shall be jointly and severally liable for the obligations related to the deposits of the insolvent mutual savings and finance company, etc. In order to prevent the insolvent mutual savings bank from exercising their rights of management from exercising their rights of management by using the same as those of the insolvent mutual savings and finance company, the portion of the instant provisions on officers in this case shall be limited to the extent that they are not jointly and severally liable for the obligations related to the insolvent mutual savings bank and shall be limited to the extent that they are not jointly and severally liable for the obligations of the oligopolistic shareholders in light of the Constitution.

C. Determination on the claim against Defendant 1

(1) Facts of recognition

[Ground of recognition] A9-1 through 5, A1, A35-1 through 7, A44, and 45, each entry, part of A36-1 and 5, Non-Party 2’s testimony of the first instance trial witness, Non-Party 3, Non-Party 4, and 5’s testimony, and the purport of the whole pleadings

㈎ 신동아 그룹이 1991년 주식회사 유린상호신용금고를 인수하여 상호를 주식회사 대생상호신용금고로 변경한 이래, 피고 1은 대생금고의 주주총회에 참석하여 각 회계년도의 영업보고서, 대차대조표, 손익계산서, 경영계획 및 예산안을 승인하고, 감사보고를 받아 왔다.

㈏ 피고 1은 대생금고의 대표이사, 이사 등의 요직으로 자신의 지인들을 선임 또는 파견하였는바, 주주총회를 통하여, 위 피고가 대주주로 있던 우정상호신용금고의 대표이사인 소외 6, 대한생명에서 30년 이상 전무이사 등으로 재직하다 임기 만료로 퇴임하는 소외 7, 대한생명의 전무이사 등으로 재직하다 퇴직하는 소외 8 및 피고 2을 대생금고의 대표이사로 각 선임하고, 대한생명의 이사로 재직하던 피고 3을 대생금고의 상무이사 또는 감사로 파견하는 등 대생금고의 과점주주로서 신동아 그룹의 계열사의 전·현직 임직원을 대생금고의 임원으로 파견하거나, 선임하였다.

㈐ 피고 1이 피고 2에게 대생금고의 대표이사직을 부탁하자, 피고 2는 1997. 4. 28.경 1997. 3.말을 기준으로 한 대생금고의 업무상황을 피고 1에게 보고하면서 대표이사직의 직무수행에 어려움을 표하였는바, 이에 피고 1은 피고 2에게 당시 추진되고 있던 대한생명의 외국회사에의 매각을 통하여 증자를 해 주겠다고 약속하였다.

㈑ 피고 2는 피고 1의 비서실로부터 지시를 받고 대한생명의 계열회사인 기원관광에게 앞에서 본 바와 같은 출자자 대출을 실행하였다.

㈒ 위와 같이 피고 1이 그 선임 및 파견에 직·간접적으로 관여한 대생금고의 임원인 소외 6, 7, 피고 2, 3은 앞에서 본 바와 같이 각 재직기간 중 법령에 위반하여 동일인 여신한도를 초과하여 대출을 실행하거나, 출자자에 대한 대출을 실행하였다.

(2) Grounds for liability

According to the above facts, as oligopolistic shareholders holding 62.3% of shares of 62.3% shares, Defendant 1 exercised influence over the management of the company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's repayment

(3) Scope of liability

In accordance with the above provision, the part where oligopolistic shareholders are jointly and severally liable with the mutual savings and finance company is liabilities related to deposits, etc., and the Plaintiff paid deposit claims of 3,725,789,603 won to the deposit account holders in accordance with the Depositor Protection Act and acquired the relevant deposit claims from the deposit account holders. As seen above, Defendant 1, an oligopolistic shareholder of a large savings and finance company, is liable for full reimbursement of the deposit claims of 3,725,789,603 won paid by the Plaintiff to the deposit account holders.

D. Determination as to the claim against Defendant 3

(1) The parties' assertion

The plaintiff asserts that the defendant 3 was an executive responsible for poor management because he was involved in excess loans as stated in the above provision on November 24, 1998. The plaintiff asserted that the defendant 3 was a director of the Giwon National Treasury, who was employed as a director on June 18, 1996. The act of the first and second tenure of office conflict with the exclusion period, and the act of the third tenure of office could not actually perform duties as a director, and thus, the third tenure of office could not be responsible under the above provision.

(2) Determination

(A) Determination on the first, second tenure of office

According to Article 37-3 (2) of the former Mutual Savings and Finance Company Act, the retired executive shall be deemed to have the same responsibility as paragraph (1) within three years after his/her retirement with respect to his/her obligation related to the deposit, etc. of a mutual savings bank that occurred before his/her retirement. Defendant 3 has a exclusion period of three years from his/her joint repayment liability, from June 30, 1993 to June 30, 1996; from September 7, 1996 to August 28, 1997; Defendant 3 has not been dismissed for more than three times from September 1, 1998 to March 18, 199; on the other hand, Defendant 1 and Defendant 2’s claim against the same person during the first period of his/her own loan that occurred after the lapse of three years from Aug. 29, 1997.

As to this, the plaintiff could not be deemed to have retired since defendant 3 had been employed as the auditor continuously after the second resignation from the company company. Further, the plaintiff argued that the lawsuit in this case was filed within 3 years from March 18, 1999 and did not go within the exclusion period. However, Article 37-3 (1) of the former Mutual Savings and Finance Company Act explicitly excludes the auditor from the "executive," and in the case where the executive is held liable for joint repayment of the deposit claims of the depositor, in light of the property right, freedom of association, right to equality and prohibition principle as stipulated in the Constitution, even in the case where the executive is held liable for joint payment of the deposit claims of the depositor, it shall be interpreted that the executive bears the obligation to return the deposit claims of the depositors jointly and severally with the mutual savings and finance company to the extent of the amount infringed on the deposit claims of the depositors arising from his own act during his own period of office. Therefore, even if the executive has been employed for several times, the plaintiff's assertion that there was no unreasonable result from the above act within 3 years prior to the retirement.

(B) Determination on the third service period

According to the statements of Gap 10-12-3, Gap 10-14, Eul 6-1, and Eul 6-3, defendant 3 was under sick leave from August 13, 1998 to November 19 of the same year after the sick leave period was completed, and he was under non-regular leave from August 13, 1998, but he could not normally perform his duties due to navigation cancer treatment and legacy, and therefore, he could be found to have retired from his office on March 18, 1999. In light of this, it is difficult for defendant 3 to view that he actually performed his duties as a director from September 1, 1998 to March 18, 199. Thus, the plaintiff's assertion that defendant 3 was under poor management, and the plaintiff's assertion that the above loan was in excess of the amount of loan to the receiver is without merit.

E. Determination as to the claim against Defendant 2

(1) Determination on the part of investors’ loans

(A) The plaintiff asserts that the defendant 2 was involved in the loan to the original tourism in the name of a third party while in office as the representative director, and the total of KRW 240 million and KRW 250 million on June 27, 1998, and KRW 4.9 billion on July 23, 1998, and KRW 1.6 billion on November 24, 1998, KRW 4.4 billion on March 22, 1999, KRW 490,000 on March 26, 269, KRW 70,000 on April 19 of the same year, and thus, he was responsible for the insolvency caused by the above act.

First of all, the executive officers responsible for health care costs of KRW 490,000,00 are liable for joint repayment to the extent of the amount infringed upon by the depositors' deposit claims suffered by their own act. Defendant 2, a representative director, extended a total of KRW 4.9,00,000 to the original tourism who is an investor while in office as the representative director, and incurred losses from the failure to recover KRW 180,667,828 out of the above loan, thereby causing a defect in the amount of the above loan. As seen earlier, Defendant 2 is liable for the repayment of deposit obligations to the Plaintiff, the transferee of the deposit claim, within the extent of the above amount.

Furthermore, in order to consider the claim portion of the above 4 loans which suffered an impossible recovery loss from among the loan stated in the statement dealing with the above 4 loans, and even if the loan was not recovered, the active property of the lending company before and after the loan should be reduced by the actual payment of the money to the recipient. However, in case of a substitute loan where Defendant 2 makes a loan only formally in order to extend the repayment period of the existing loan loan which had already occurred before it serves as the representative director, unless the money is actually paid to the recipient, the active property of the lending company does not decrease, so even if the loan claim newly created by substitute exchange is not repaid. Thus, since each of the above loans is the plaintiff, this part of the plaintiff's assertion is without merit.

(B) Determination on Defendant 2’s assertion

1) Defendant 2 actively recovered the amount of KRW 1.5 billion out of the loans to the flag of the flag of the flag of the flag of the flag of the flag of which total amount was KRW 3.8 billion after he assumed office as the representative director of the university of the Republic of Korea. However, Defendant 2 inevitably loaned KRW 4.9 billion within the scope of KRW 1.5 billion recovered in order to eliminate the situation where the remainder of the loan is not recoverable due to the crisis of the weather of the flag of the flag of the flag of the flag of the Republic of Korea. Defendant 2 asserts that there was an adequate method to recover existing loans and minimize the damage of the life of the flag of the flag

According to the testimony of Non-Party 2 and Non-Party 5 as the witness of the first instance trial, the total amount of loans to the original tourism of the original national treasury has decreased from 3.8 billion to 2.9 billion won during the term of office of the defendant 2, and the new loan of the defendant 2 is 1.99 million won including the above 4.99 million won, and the loan which is impossible to be collected among them is only 180,67,828 won. Further, with regard to the above new loan was inevitable and appropriate methods to recover the existing loan, each testimony of the above non-party 2 and non-party 5 is difficult to believe otherwise, and there is no other evidence to acknowledge that the above new loan of the original national treasury was made in violation of the provisions of the former Mutual Saving and Finance Act for the purpose of collecting the amount of loans to the original national treasury, and there is no reasonable reason to believe that the above new loan was made in violation of the provisions of the former Mutual Saving and Finance Act for the purpose of collecting the amount of loans to the original national treasury.

2) In addition, Defendant 2 asserted that, in the Seoul High Court Decision 2002Na13449 delivered on February 13, 2003, the bankruptcy trustee of the company's life saving depository claimed liability for damages against Defendant 2 as representative director, deposited the payment with Defendant 2 with the Seoul High Court Decision 2002Na1349 delivered on February 13, 2003 to compensate for damages on the ground of loans to the company's life saving depository, Defendant 2 again held Defendant 2 liable for damages on the same ground of the same loan, this would result in an unreasonable result that would be subject to double liability on the same ground

However, the above liability for damages is a director's liability for damages to the company under Article 399 of the Commercial Act. The lawsuit of this case is liable for the joint repayment of the deposit obligation to the officers' deposit account holders under Article 37-3 (1) of the former Mutual Savings and Finance Company Act. Therefore, the grounds for the liability and the other party are different. The above judgment is not yet finalized and it cannot be said that the defendant is fully liable for the above amount because it has not yet become final and conclusive, and even if Defendant 2 is liable for the joint repayment of this case, it cannot be said that it can exercise the right of indemnity against the mutual savings and finance company which is the principal debtor of the deposit obligation, so it cannot be said that there is a risk

(2) Determination on the part of excess loans

Since Defendant 2 was involved in excess loans as stated in the excess loan statement while he is in office as representative director, the above Defendant asserts that he is an officer responsible for poor management. The fact that Defendant 2 had been in excess loans or substitute exchange such as the excess loan statement during his office as representative director was acknowledged as above. In full view of the respective entries and arguments in the above excess loan transaction and the purport of the whole pleadings, it can be acknowledged that the above excess loan transaction was made based on interest repayment, installment payment, etc., and that such contents are also arranged in the credit installment transaction statement of the large savings depository.

However, according to the above evidence, since the contents of excess loans are stated by the plaintiff's own details of excess loans and the total amount of excess loans is refunded to 50 million won, it is divided into "amount loans" or "amount loans to be refunded to 50 million won," and the whole amount of new loans is divided into "new loan" and is stated in the column of classification of the details of excess loans. Of these loans, the total amount of loans is actually used as repayment of existing loans to 50 million won, and at least part of the loans is 50 million won (i.e., "amount loans" or "amount loans increased to 50 million won" and "amount loans increased to 90 million won," divided into 50 million won loans to 50 million won and 500 million won, and 370 million won loans to 90 million won are divided into "amount loans to 1.5 billion won and 500 million won," respectively.

If so, the part related to Defendant 2 in the excessive loan statement is merely "exchange", "amount loan", or "amount loan", and there is no new "new". The part related to Defendant 2 as well as the part related to the increased loan also stated as the part related to the increased loan was actually paid to the borrower. Thus, it is not recognized that the excessive loan by Defendant 2 as alleged by the plaintiff was caused by the excessive loan by Defendant 2 as alleged by the plaintiff, and therefore, the plaintiff's assertion based on this premise is without merit.

F. Sub-committee

Therefore, Defendant 1 shall pay to the Plaintiff the amount of KRW 2.5 billion among the deposit claims acquired as requested by the Plaintiff as well as the amount of KRW 2.5 billion from November 30, 2001 on the record that the above Defendant raised a dispute as to the existence and scope of the obligation from November 4, 2004 to November 4, 2004, which is the date of the judgment of the court of first instance, to pay the amount of KRW 5% per annum as stipulated in the Civil Act and KRW 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc. from the following day to the date of full payment. Defendant 2 shall be jointly and severally and severally liable with Defendant 1 to pay the above amount of KRW 180,67,828 among the above amount and its delay damages to November 30, 201 to November 4, 2004.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 3 is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against the defendant 1 and 2 is dismissed as it is reasonable. The plaintiff's claim against the defendant 1 and 2 is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. The judgment of the court of first instance is unfair in part of this conclusion. Thus, the judgment of the court of first instance as to the defendant 1 and 2 is modified as ordered

Judges Gu-Appellee (Presiding Judge)