The case reversing the judgment of the court below on the ground that the meaning of "the exercise of a security right", which is subject to the provisions on the time limit for the request for the performance of a guaranteed obligation under the Housing Finance Credit Guarantee Clause, is limited to the exercise of a security right by a creditor who actively files an application for voluntary auction to the court, etc., and

Article 105 of the Civil Code, Article 5 of the Regulation of Standardized Contracts Act

National Bank of Korea (Law Firm Rate, Attorneys Park Young-young et al., Counsel for the defendant-appellant)

Korea Housing Finance Corporation (Law Firm Doll, Attorneys Yoon Gyeong-hwan et al., Counsel for defendant-appellant)

Seoul High Court Decision 2008Na56851 Decided December 17, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court: (a) extended a loan of KRW 448 million to the Korea Housing Corporation on August 10, 196; (b) KRW 10,000,00 as collateral; and (c) completed the registration of creation of a new housing account with KRW 578,240,000,00 for the total amount of KRW 10,000 within 10,000,000 within 10,000,000,000,000,00 KRW 20,000,000,000,000,00 KRW 15,000,000,000,000,000,00 KRW 10,000,000,000,000,000,000,000,000,000,000,00 won; (c)

2. However, it is very doubtful that the enforcement of a security interest under the proviso of Article 11(3) of the above Terms and Conditions should be narrowly interpreted as the original judgment.

Rather, in light of the purpose and purport of the Housing Finance Credit Guarantee System, the purport of the proviso of Article 11(1) of the said Terms and Conditions stipulating that when a debtor holds a security right, a creditor who holds a security right shall claim the performance of a guaranteed obligation after exercising the security right. The purport is that even if the ground provided for in each subparagraph of Article 11(1) of the said Terms and Conditions has occurred, a creditor who holds a security right should immediately claim the performance of a guaranteed obligation against the defendant, not a claim for the performance of a guaranteed obligation, but a claim for the performance of a guaranteed obligation when a shortage occurs after collecting a claim first through a security right after collecting the claim first, and there are various methods such as receiving dividends from the auction procedure applied by a third party in addition to the method of a creditor who collects a claim from a security right actively and effectively. Thus, there is no reason to narrow the creditor's exercise of a security right by actively selling it at the court.

A creditor who has a security right in the company reorganization procedure is unable to individually exercise a security right, but by reporting the claim, a superior status is recognized in voting rights or repayment, etc. compared to a reorganization creditor who is a general creditor as a security holder. According to the records, in the company reorganization procedure of this case, the plaintiff also appears to have been paid in preference to the reorganization creditor as a security holder. Therefore, it is reasonable to deem that if the plaintiff was paid in accordance with such procedure, it constitutes a case where the claim was recovered

Nevertheless, the lower court’s rejection of the Defendant’s assertion by narrowly interpreting the meaning of “the exercise of a security interest” under the proviso of Article 11(3) of the Housing Finance Credit Guarantee Clause is limited to cases where an obligee actively files an application for voluntary auction with the court, etc.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)