Korea Asset Management Corporation (Law Firm Pok, Attorneys Kang Gyeong-hee, Counsel for defendant-appellant)

Defendant Co., Ltd. (Attorney Lee Im-soo, Counsel for defendant-appellant)

December 13, 2006

Busan District Court Decision 2004Gahap17095 Delivered on June 22, 2006

1. Of the part against the defendant in the judgment of the court of first instance, the part against the defendant ordering payment of KRW 375,43,217 to the plaintiff jointly and severally with the defendant in Austria Co., Ltd. and the defendant in the judgment of the court of first instance in excess of 5% per annum from June 10, 2005 to January 26, 2007, and 20% per annum from the next day to the date of full payment, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. All of the costs of lawsuit shall be ten minutes for the first and second instances, and one of them shall be borne by the plaintiff, and the remainder by the defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 389,099,238 won and the amount calculated by the ratio of 5% per annum from December 31, 2003 to the service date of a copy of the complaint, and 20% per annum from the following day to the day of complete payment, jointly with the co-defendant of the first instance trial Co-defendant of the Republic of Korea Co., Ltd. to the plaintiff.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the testimony of Gap's evidence of 1 to 6, Gap's evidence of 7, Gap's evidence of 1, 2, 8, Gap's evidence of 10 to 14, and Kim Jong-in of the first instance trial.

On September 8, 2003, Busan Bank Co., Ltd. (hereinafter referred to as the "Insan Bank") entered into a credit transaction agreement with the Codefendant Co., Ltd., Ltd., the Co., Ltd., Ltd. (hereinafter referred to as the "SSia") on the issuance of the letter of credit, and at the request of the PS Asia on the same day, cancelled the letter of credit (hereinafter referred to as the "the letter of credit of this case") with 305,000 U.S. dollars (10%) on the letter of credit, the beneficiary Na-kin International (NGASKI INTRAL LITRD), the terms and conditions of settlement 180 days conditional grace (180 days) on condition of 180 days grace (180 days) on condition that goods MAYASA UN LOGSS 2,300 cubic meters (hereinafter referred to as the "the cargo of this case") and cancelled the letter of credit of this case (hereinafter referred to as the "MUU2303630.

○ The Defendant, a maritime carrier, on September 26, 2003, issued a bill of lading (INTRSASK126004) with the consignee and the consignee as Busan Bank and the consignee as the Asia (INTRASK126004) with the cargo of this case loaded 439 ps in the three-way Epis vessel (M. V. SYG ACE) vessel and entered into a maritime transport contract with the Malaysia to transport the cargo of this case to Busan port from the wind port of Malaysia.

○ In addition, the Defendant loaded 263 pcs of the instant cargo on the instant cargo with the shipper, and entered into a maritime transport contract with the said vessel to transport from the port of Malaysia Cuba Madara to the Busan port. On September 27, 2003, the Defendant issued a bill of lading (INTRASASK126007) with the consignee to the Busan Bank and the consignee as the Busan Asia (i.e., the serial number: : INTRASK126007) (hereinafter referred to as the “instant bill of lading”) in combination with the two bills of ladings (hereinafter referred to as “instant bill of lading”).

○ Accordingly, the Busan Bank held the instant bill of lading, and the instant cargo arrived at the port of Busan on October 4, 2003, and the Defendant delivered the instant cargo to the Austria on December 31, 2003 without delivery of the instant bill of lading or the letter of guarantee for cargo delivery.

As the issuing bank of the letter of credit of this case, the Busan Bank paid the beneficiary a total of KRW 213,649,116 on April 1, 2004 and KRW 161,784,101 on April 7, 200 and KRW 375,43,217 on the letter of credit.

○ After that, the Busan Bank transferred to the Plaintiff a claim for reimbursement against Astst Asia on June 29, 2004 due to the payment of each letter of credit, pursuant to Article 4 of the Act on the Efficient Disposal of Non-Performing Assets, etc. of Financial Institutions and the Establishment of Korea Asset Management Corporation. On July 21, 2004, the notice of the transfer of the claim for reimbursement reached the Republic of Korea Asset Management Corporation.

○ When the Plaintiff acquired the claim for reimbursement from the Busan Bank, it is currently holding the bill of lading of this case from the Busan Bank.

2. Determination on this safety defense

A. According to Article 811 of the Commercial Act, the defendant asserts that the obligation of the carrier against the consignee shall be extinguished without any judicial claim within one year from the date on which the carrier delivered the cargo to the consignee, regardless of the cause of the claim. The plaintiff asserted in the complaint of this case that the Busan Bank received the claim for damages against the defendant, and on the premise that the plaintiff received the bill of this case from the Busan Bank only from the preparatory document as of December 19, 2005 and possessed the original copy, the plaintiff has the right to claim damages against the defendant who is the carrier as the consignee. Thus, the lawsuit of this case seeking damages against the defendant who is the carrier as the consignee as the consignee of the freight of this case was filed on December 19, 2005 after the lapse of one year from December 31, 2003, which is the time of delivery of the freight of this case. Thus, the plaintiff asserts that the plaintiff's claim of this case is unlawful.

B. On September 23, 2004, the plaintiff filed the suit of this case against the defendant and the Austria, and in its complaint, the plaintiff issued the bill of this case with the consignee's instruction at the Busan Bank, but on December 31, 2003, the plaintiff delivered the freight of this case to the Busan Bank, the holder of the bill of this case, without being issued the bill of this case or the order for delivery of freight, and was liable for damages to the Busan Bank, the holder of the bill of this case. Since the plaintiff acquired the above claim for damages from the Busan Bank, it is obvious in the records of this case that the defendant is liable for damages equivalent to the value of the freight of this case, and the copy of the bill of this case is attached as evidentiary documents.

Therefore, the plaintiff filed a lawsuit in this case on September 23, 2004 and filed a judicial claim seeking the performance of the obligation against the defendant on the ground that the Busan Bank, the consignee of the freight in this case, acquired the claim against the defendant as the carrier, and the plaintiff claimed the payment of the damages against the defendant. This is before the lapse of one year from December 31, 2003 that the defendant delivered the freight in this case to the Austria. Thus, the plaintiff's lawsuit in this case was filed after the expiration of the limitation period under Article 811 of the Commercial Act, and the defendant's assertion that the above assertion is unlawful is without merit.

3. Occurrence of liability for damages;

A. When a carrier, who issued a bill of lading, delivers the cargo without exchange with a bill of lading to a person other than a bill of lading holder, thereby infringing on his/her right to the cargo, tort shall be established.

According to the above facts, the defendant, a carrier of the freight of this case, did not redeem the bill of lading of this case and delivered the freight of this case to the Austria, thereby infringing on the right to the freight of this case. Thus, the defendant bears the obligation to compensate for damages caused by the tort against the Busan Bank, and the plaintiff takes over the above claim for damages against the defendant of the Busan Bank by acquiring the bill of this case from the Busan Bank. Thus, the defendant is liable to compensate for damages caused by the tort to the plaintiff.

B. (1) On this issue, the defendant asserts that the credit of this case is a so-called miscarriage transaction under the condition that the settlement condition is 180 days grace period, and that the importer first ships the freight without the bill of lading and pays the letter of credit in the form of disposal. In this case, the Busan Bank has continued the L/C transaction with the Austria for a considerable period of time between the Austria and the Austria, and had the Austria receive and dispose of the freight without the bill of lading, and that the freight of this case should be received and disposed of without the bill of lading, such as ordering the Austria to pay the letter of credit amount with the disposal price, etc., so even if the defendant delivered the freight of this case without the redemption with the bill of lading, it does not bear liability for tort in relation to the Busan Bank or the plaintiff.

(2) The testimony of the first instance court witness 1, 2, and 3-1, 2, and 3-3 and the second instance witness 1, 2, and the second instance witness 1, as alleged by the Defendant is insufficient to recognize that the importer's first withdrawal of the cargo without a bill of lading and the settlement of the letter of credit with the proceeds of disposal is customary, or that in this case, the Busan Bank ordered the Austria to receive and dispose of the cargo without a bill of lading or allowed the Busan Bank to receive and dispose of the cargo without a bill of lading, and there is no other evidence to support this otherwise, the defendant's above assertion is without merit.

C. (1) In addition, the Defendant asserts that the Busan Bank failed to secure sufficient security in the issuance of the L/C of this case on behalf of the Republic of Korea, and that the cargo of this case did not pay due attention to the location of the cargo even after its arrival in Korea. Since the above mistake of the Busan Bank also caused the damage of this case or the expansion of damage, the Defendant should be exempted or its responsibility should be mitigated to a considerable extent.

(2) On the other hand, if the issuing bank, which is the lawful holder of the L/C, suffers losses due to delivery of the cargo without redemption of the bill of lading, even if the issuing bank did not offer separate security or did not collect the import deposit in relation to the payment of the L/C amount, it cannot be deemed as a cause of damages or expansion. The fact that the issuing bank did not identify the whereabouts of the cargo even after receiving the shipping documents, does not necessarily lead to the failure of the issuing bank to neglect its duty of care under the social norms or the principle of good faith (see, e.g., Supreme Court Decision 98Da13211, Apr. 23, 199). The defendant's above assertion is without merit

4. Scope of liability for damages;

A. (1) According to the above facts, the Busan Bank issued the letter of credit of this case at the request of the Austria, and the letter of credit of this case was the consignee of the bill of this case concerning the cargo of this case. In such a case, even though the Busan Bank's right as the holder of the bill of this case's letter of credit of this case's letter of credit of this case's letter of credit of this case's letter of credit of this case's letter of credit is a legal separate right, the right as the holder of the bill of this case's right as the holder of the bill of lading has secured the above right of indemnity. Thus, as seen above, if the defendant violated the right as to the cargo of this case's letter of credit of this case's bill of credit of this case's bill of this case's delivery to the Austria and caused damages to the Busan Bank due to tort, the amount of damages the defendant is equivalent to the market price at the time the cargo of this case's letter of credit of this case's bill of credit of this case's letter of credit of this case's letter of credit.

(2) In addition, “money” under Articles 763 and 394 of the Civil Act, which provide for the method of compensating for damages due to a tort, refers to Korean currency. Thus, barring any special circumstance such as where the parties agree to pay damages equivalent to the market price due to a tort in foreign currency, the amount of claims cannot be deemed to be claims in foreign currency. There is no evidence to prove that the parties agreed to pay in foreign currency as above in the instant case. According to each of the evidence Nos. 4, 6, and 9, the market price of the instant cargo as of December 31, 2003 is USD 326,261.31 ($ 439 Pcs. 185,047.21 + US$ 263p. 141,214.10). The market price of the instant cargo as of December 31, 2003 is recognized as constituting grounds for the exchange rate of 1,192.

(3) Therefore, on December 31, 2003, the defendant is obligated to compensate for the market price of the cargo of this case in Korean currency ($326,261.31 x 1,192.60 x below Won). As seen earlier, Busan Bank is the issuing bank of the letter of credit of this case to pay 375,43,217 won (=213,649,116 + 161,784,101) as the amount of indemnity claim against Asia, the above 375,43,217 won, which is the amount of indemnity claim against Asia, is less than the market price of 389,09,238 won. Accordingly, the defendant is obligated to pay the plaintiff the above 375,43,217 won and delay damages.

B. On the other hand, as seen earlier, after the Plaintiff acquired the above indemnity claim from the Busan Bank, the fact that the Plaintiff was paid damages for delay from March 8, 2005 and June 9, 2005 of the above indemnity claim to the Busan District Court Decision 2004Ma14719 and each real estate auction procedure at around 2004 Mata-14702, and the above indemnity claim at June 10, 2005 does not conflict between the parties, and the amount of damages the Defendant shall be limited within the scope of the above indemnity claim amount as seen earlier. Thus, the Defendant is liable to pay the Plaintiff damages for delay from June 10, 2005.

C. Thus, the defendant is obligated to pay to the plaintiff the above 375,43,217 won and damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, which is deemed reasonable to dispute about the existence and scope of the defendant's obligation from June 10, 2005.

5. Conclusion

Therefore, the plaintiff's claim is accepted within the above recognition scope, and the judgment of the court of first instance is unfair by citing the amount exceeding the above recognition scope. As such, the part against the defendant who ordered payment to the plaintiff in excess of the above recognition amount among the part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the remaining appeal is dismissed.

Judges intentionally (Presiding Judge) and Doing up on a documentary transfer;