2016Da247315 Undue gains

Credit Guarantee Fund

Attorney Kim Jae-sik, Counsel for the plaintiff-appellant

A Limited Liability Company

Law Firm Jeong-tae, Counsel for the plaintiff-appellant

Attorney Lee Do-Appellee, Park Jong-man, Kim Min-soo

Gwangju High Court Decision 2016Na10321 Decided August 19, 2016

April 23, 2019

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

The grounds of appeal are examined.

1. The judgment of the court below

A. The lower court acknowledged the following facts by citing the first instance judgment.

(1) On August 19, 201, B Co., Ltd. (hereinafter referred to as “Nonindicted Company”) entered into a credit guarantee agreement with the Plaintiff on August 19, 201 with the Plaintiff, and issued a credit guarantee certificate with the amount of KRW 1,273,776,00 on November 27, 2015, the amount of loan plus KRW 2,653,700,000 on guarantee rate of KRW 48%. On the same day, Nonparty Co., Ltd. (hereinafter referred to as “the factory of this case”) as joint collateral with the list of machinery and equipment under Article 6 of the Act on Mortgage on Real Estate, Factory and Mining Foundation (hereinafter referred to as “the factory of this case”) owned by C as the joint collateral and obtained the loan of KRW 3,705,00 on August 19, 201, the maximum amount of debt amount of KRW 1,700,000 on the non-party Co., Ltd. (hereinafter referred to as “the collateral Security”).

(2) On October 18, 2012, the Plaintiff filed a claim for the performance of the surety obligation on the ground of a surety accident by C.

The amount of KRW 1,156,624,838 (the total amount of KRW 2,341,50,000, the guarantee rate of KRW 48% and interest thereon from April 8, 2012 to October 17, 2012) was paid.

(3) On October 18, 2012 after receiving a subrogation from the Plaintiff, C entered into a partial transfer contract of the right to collateral security with the Plaintiff (hereinafter “instant partial transfer contract”), and on October 19, 2012, the amount repaid to the Plaintiff on October 19, 2012 due to the incidental repayment of the claim date as to the instant right to collateral security (1,156,624,838 won, and the additional registration of the partial transfer of the right to collateral security (hereinafter “the instant right to collateral security”) with the Plaintiff was completed on October 19, 2012 (hereinafter “the partial transfer of the right to collateral security”). According to Article 2(Order of Priority) of the instant partial transfer contract, the order of appropriation for the amount of dividends under the instant right to collateral security (hereinafter “instant right to collateral security”) shall be based on the difference between the transferor and the transferee’s guarantee institution’s repayment rate of the amount of overdue interests and the transferee’s repayment rate of the remainder of the claim (2.15%) within the date of the transferor’s repayment (the transferor’s creditor).

(4) As the non-party company was unable to repay its loans, C applied for an auction of real estate as a mortgagee for the instant factory. On December 31, 2013, during the instant auction procedure, C transferred the remainder of the secured debt, excluding partial transfer to the Plaintiff, to the Defendant under the Asset-Backed Securitization Act.

(5) In the auction procedure of this case, the Plaintiff reported the claim amount of KRW 1,461,348,48. On November 20, 2014, the auction court prepared an amount to be actually distributed except for execution expenses with respect to the factory of this case on the date of distribution, 3,173,95,740 won, a total of KRW 149,493,906 won, 44,174,812 (the maximum claim amount of KRW 1,156,624,838, 81.61%) to the Defendant, and 2,080,287,022 won (the maximum claim amount of KRW 2,548,375,162, and 81.61%) to the Defendant, who was paid dividends to the Defendant pursuant to the above 2, 201, and the Defendant returned dividends to the Defendant pursuant to the distribution schedule to the Defendant’s 2, 2014.

B. The lower court determined that the instant dividend priority clause was concluded on the premise that the Plaintiff received part of the instant dividends within the scope of KRW 1,156,624,838, which is the principal of its subrogated payment, and appropriated it for the repayment of the claim for reimbursement against the non-party company.

On the premise that the amount to be appropriated for the repayment of the Plaintiff’s claim for reimbursement against the non-party company among the instant dividends is within the amount of the Plaintiff’s claim for reimbursement, and is KRW 1,156,624,838, which is the amount of the secured debt transferred to the Plaintiff pursuant to the instant contract for partial transfer of collateral security. The Plaintiff received dividends of KRW 94,174,812 on November 20, 2014 through the instant auction procedure, and received KRW 212,450,026 from the Defendant on December 4, 2014, and received the total amount of KRW 1,156,624,838 from the Defendant on December 4, 2014. The lower court determined that the Plaintiff’s claim for return of unjust enrichment was groundless. The grounds for the judgment as above are as follows.

(1) If the instant contract for partial transfer of a right to collateral security was concluded to allow the Plaintiff to pay not only the principal but also damages for delay out of the Plaintiff’s claim for reimbursement against Nonparty Company through dividends during the auction procedure, the Plaintiff and C have determined the amount of the secured debt of the instant right to collateral security that is transferred in the future of the Plaintiff in consideration of these circumstances. However, the instant contract for partial transfer of a right to collateral security has limited to KRW 1,156,624,838, the amount of the secured debt of the instant right to collateral security that is transferred in the future of the Plaintiff to the Plaintiff, which is the same amount as the principal of the Plaintiff’s subrogated payment. Accordingly, the additional registration prior to the instant

(2) In the instant auction procedure, the Plaintiff is entitled to preferential dividends within the maximum of KRW 1,156,624,838, which is the maximum debt amount of the right to collateral security that has been partially transferred to himself/herself, and is not entitled to preferential dividends in excess of the said amount. There is no special reason to allow C, who is well aware of such circumstance, to secure more money than the maximum debt amount of the right to preferential dividends in the instant auction procedure and to appropriate it for the repayment of the right to indemnity against the non-party company.

2. Judgment of the Supreme Court

A. (1) In a case where a dispute over the interpretation of a contract between the parties arises and the interpretation of the parties’ intent expressed in a disposal document becomes an issue, the relevant parties shall be reasonably construed in accordance with logical and empirical rules by comprehensively taking into account the content of the text, motive and background of the agreement, the objective to be achieved by the agreement, the parties’ genuine intent (see, e.g., Supreme Court Decision 2015Da207044, Jul. 20,

(2) If a person who has a legitimate interest in performance pays part of the claim on behalf of the debtor.

If an obligee acquires, within the extent of the value of performance performed by an obligee, any existing obligee’s claim and right to collateral held by him/her, and thus, the obligee is obligated to make a supplementary registration prior to the partial subrogation of any real estate: Provided, That even in such cases, the obligee has a preferential right to payment against a partial subrogation: Provided, That in cases where a separate agreement is made between a partial subrogation and a creditor as to the priority of performance, the order of performance is determined in accordance with such agreement (see, e.g., Supreme Court Decision 2009Da80460, Apr. 8, 2010).

B. In light of the above legal principles, the judgment of the court below that concluded that the Plaintiff cannot receive dividends from the auction procedure only within the scope of the principal amount of subrogated payment and appropriate it for the repayment of the claim for reimbursement against the non-party company by interpreting that the contract for partial transfer of the right to collateral security was concluded, thereby making it difficult to accept the judgment of the court below for the following reasons.

(1) The waiver of the limit of appropriation by subrogation to the extent of the principal amount of the subrogated payment is an important part in the interests between a credit guarantee company and a financial institution. Thus, if such limit is placed, it would be general to clearly state it in the contract for partial transfer of collateral security. Nevertheless, the contract for partial transfer of collateral security of this case does not specify such contents.

(2) The instant dividend priority clause provides that the remainder of the dividends, other than the difference between the overdue interest to be paid by C and the agreed interest, shall be appropriated to the balance of each agency’s related claims as of the dividend date within the scope of the divided amount in proportion to the ratio of partial guarantee by C and the Plaintiff. In light of the ordinary meaning of the phrase “the balance of related claims”, it is natural to view that the Plaintiff’s delay damages for the claim for indemnity also are included in “the balance of related claims” as a grammatic interpretation.

(3) Examining the contents of the instant agreement on partial transfer of collateral security, the Plaintiff’s appropriation for the instant collateral loan that the Plaintiff provided as a credit guarantee takes precedence over the loan that was not. If interpreted as the lower court, dividends cannot be paid for the damages incurred due to the instant collateral loan, while the damages incurred due to the instant collateral security loan other than the instant collateral security loan would result in giving priority to dividends. This is inconsistent with the purport of the instant provision on dividend priority.

(4) When a credit guarantee company makes a subrogation and concludes a contract for partial transfer of a right to collateral with a financial institution, it is practically impossible to determine in advance the amount of the claim secured by the right to collateral that is expected to be incurred from the date of subrogation to the date of distributing dividends in the auction procedure. Moreover, the “paid amount” stated in the supplementary registration for partial transfer of a right to collateral security is merely a ground for registration and does not mean the maximum debt amount that may be realized through the right to collateral security. Therefore, in the event there is an agreement between a partial subrogation and a creditor, as in the instant case, the court of auction should pay dividends within the scope of the maximum debt amount. The reasoning of the court below inconsistent with this is not acceptable. Nevertheless, the court below determined that the Plaintiff’s payment of dividends in the auction procedure only within the scope of the principal amount of subrogated payment and appropriated for the repayment of the right to indemnity. In so doing, the court below erred by misapprehending the legal principles on interpretation of a disposal document and dividends between a creditor and a partial subrogation, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

2. Judgment of the presiding judge

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo