The Bankruptcy Trustee of Korea Deposit Insurance Corporation (Attorney Park Il-soo, Counsel for plaintiff-appellee)

Defendant 1 and five others (Law Firm Bai et al., Counsel for the defendant-appellant)

Defendant 5 and two others (Law Firm Cheongong et al., Counsel for the defendant-appellant)

June 18, 2015

Jeonju District Court Decision 201Gahap7573 Decided February 7, 2014

1. Of the judgment of the first instance court, the part against Defendant 6, Defendant 7, and Defendant 5 shall be revoked.

2. The plaintiff's claims against the defendant 6, 7, and 5 are all dismissed.

3. The total costs of the lawsuit incurred between the Plaintiff, Defendant 6, Defendant 7, and Defendant 5, and the costs of the lawsuit incurred between the Plaintiff, Defendant 2, Defendant 3, Defendant 4, Defendant 8, and Defendant 9, shall be borne by the Plaintiff.

1. Purport of claim

A. Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 6, and Defendant 7

As a matter of choice, Defendant 6 shall pay to the Plaintiff the amount of KRW 3,00,000, KRW 7,000,000 to Defendant 7,000,000, and each of the above amounts of KRW 20% per annum from the day following the delivery of a copy of the application for modification of the claim of this case to the day of complete payment. Defendant 1 shall pay to Defendant 2,142,852, and KRW 2,142, Defendant 2, and Defendant 3 as to each of the above amounts of KRW 1,428,571,428, and KRW 5,00,00,00 to Defendant 4, and KRW 5,00,00 to the day of full payment.

B. As to the primary Defendant 5 and Defendant 8 (hereinafter “Defendant 5 and Defendant 8”).

The defendant 5 pays to the plaintiff 10 million won with 20% interest per annum from the day following the delivery of a copy of the application for modification of the claim of this case to the day of complete payment, or the defendant 8 pays to the plaintiff 5 million won with 20% interest per annum from the day following the delivery of a copy of the application for modification of the claim of this case to the day of complete payment.

C. As to the conjunctive Defendant 9 (hereinafter “Defendant 9”).

Defendant 9 shall pay to the Plaintiff 10 million won with 20% interest per annum from the day following the delivery of a copy of the application for modification of the claim of this case to the day of complete payment.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Scope of the judgment of this court;

A. In this case where the Plaintiff exercised the right to set aside against the Defendants in the form of selective and preliminary co-litigation pursuant to Article 70 of the Civil Procedure Act, and at the same time, the court of first instance accepted the Plaintiff’s claim against Defendant 6, Defendant 7, and Defendant 5, and dismissed the remaining claims against the Defendants, and only Defendant 6, Defendant 7, and Defendant 5 filed an appeal.

B. However, selective and preliminary co-litigations are the form of litigation in which all co-litigants settle the dispute between each other in the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act), and a judgment on the claim against all co-litigants is not allowed to render a judgment or to render an additional judgment on the remaining co-litigants only for some co-litigants (Article 70(2) of the Civil Procedure Act). In addition, if either the primary co-litigants or the conjunctive co-litigants file an appeal in the selective and preliminary co-litigants, the final judgment on the claim against other co-litigants shall also be interrupted, and the appeal shall be subject to the judgment in the appellate trial, and in such a case, the subject of the judgment on the appeal shall be determined by taking into account the need for the combined conclusion between the primary and preliminary co-litigants and the other parties (see Supreme Court Decision 2009Da4355, Feb. 24, 201

C. Therefore, even if only Defendant 6, Defendant 7, and Defendant 5 filed an appeal against the judgment of the first instance court, the determination of the remaining part of the claims against the other Defendants is prevented due to the need for the unity of conclusion, and is included in the subject of adjudication in this court, which is the appellate court.

2. Basic facts

A. Status of the parties

1) On August 17, 2010, a bankrupt mutual savings bank (hereinafter “former Mutual Savings Bank”) was declared bankrupt on the day preceding the date on which the Plaintiff was appointed as a trustee in bankruptcy of the previous mutual savings bank, and the Plaintiff was appointed as a trustee in bankruptcy of the previous mutual savings bank.

2) On the preceding day, a mutual savings bank issued capital increase by December 2, 2009 and allocated 1 million shares to Nonparty 1 and Defendant 4, respectively. Defendant 1 is the wife of Nonparty 1 who died on July 21, 2011, and Defendant 2 and Defendant 3 are the children of Nonparty 1.

3) Defendant 6 is the trade name (mutual name omitted) of “(mutual name omitted)”, Defendant 7 is the trade name of “(mutual name 2 omitted)”, Defendant 9 is the corporate bonds company engaging in each credit business under the trade name of “(mutual name 3 omitted)”, and Defendant 5 is the criminal defendant 9.

(b) Paid-in capital increase and capital change of mutual savings banks;

1) On October 15, 2009, mutual savings banks held a board of directors to deliberate on the cases of approval of the reduction of capital (the amount of KRW 5,000 per share shall be reduced to 5,000 on November 6, 2009) by holding a temporary general meeting of shareholders on November 6, 2009 as a part of the management improvement plan. The preceding day adopted a resolution on the agenda that "the cases of approval of the reduction of capital (the amount of KRW 5,000 per share shall be reduced to 5,796,795 shares per share at the same face

2) On the preceding day of November 6, 2009, a mutual savings bank held a temporary general meeting of shareholders on November 37, 2009 and passed a resolution to approve the reduction of capital with the following contents as follows. On December 1, 2009, the Financial Services Commission was notified on December 1, 2009, that “The Financial Services Commission shall authorize the reduction of the capital from KRW 57,983,91,990,000 to KRW 28,990,00 by reducing the outstanding voting shares from KRW 11,596,795 to KRW 5,798,398,398.”

Non-party 230,346,00,00 won for 6,069,216,040,000 won for 3,034,608, 52.34% for non-party 314,948,065,00 won for 2,989,613 shares for 7,474,035,000 won for 1,494,000 won for 1,494,807, 25.78% for 25.78% for 10,637,205,205,00 won for 2,127,441,318,60,600 won for 305,9757,979,9750,970,97,000 won for 305,9750,9750,000 won for 7063,184,75,007,37000

3) On the other hand, on November 16, 2009, the first day mutual savings bank issued 45 billion won at the board of directors with a view to improving the financial structure by providing 45 billion won and issuing 50 billion won per share the total issue value of 4.5 billion won per share with a registered ordinary share of 4.5 billion won, and among them, a resolution was adopted to allocate 6 million won to the first day of the private equity fund, each one million share to the non-party 5, non-party 1, and defendant 4 respectively.

5) On November 30, 2009, the preceding day of a mutual savings bank received a donation of 2,296,233 square meters of land and 835 square meters of buildings other than the 22.9 billion won in the market for the purpose of improving the financial structure by setting up a financial structure of KRW 45 billion at the board of directors, and issued a total of KRW 22.1 billion of the issued value per share to KRW 5,000,000 of the issued value per share, and issued a registered common share of KRW 4,420,000 of the issued value per share to Nonparty 1, Nonparty 6, Defendant 4, Defendant 5, and Defendant 5 respectively, and a resolution to revoke the resolution of the board of directors on November 16, 2009.

6) Accordingly, on December 2, 2009, the preceding mutual savings bank issued capital increase by a third party to receive KRW 5 billion in total and KRW 22.1 billion from Nonparty 1, Nonparty 6, Defendant 4, and Defendant 5 respectively, and to issue new shares. Accordingly, the details of shareholders on the list of shareholders of the preceding mutual savings bank are as follows.

Non-party 15,173,00,000 won for non-party 15,173,040,000 won for non-party 29.70% for non-party 31,494,807 shares for 1,063,720 shares for 1,063, 318,60, 000 won for non-party 10.41% for 07,000 5,000, 079, 000 for 07, 000, 9.79% for 1,000,000 won for 80,000 won for 1,000,000 won for 5,000,000 won for 9.79% for 0,000,000 won for 5 defendant 41,000,0000 won for 5,0000,0000 won for 9.

(c) Decisions on insolvent financial institutions for mutual savings banks on the preceding day.

1) The preceding day of a mutual savings bank shall be determined by the Financial Services Commission on December 31, 2009, and on the grounds that “The liabilities of a mutual savings bank prior to the evaluation and calculation of assets and liabilities for the determination of an insolvent financial institution as of April 30, 2009 and November 30, 2009 exceeds 51.6 billion won, and the liabilities of each mutual savings bank prior to the date of such evaluation and calculation shall exceed 1,58.3 billion won, and on March 31, 2009 and September 20, 2009, the equity capital ratio (BIS) on assets with heavy risks as of September 31, 2009 shall be below 3.59%, 11.13%, and 5%, respectively.” On the grounds that “The Financial Services Commission determines it as an insolvent financial institution in accordance with the provisions of Articles 2 and 10 of the Act on the Structural Improvement of the Financial Industry, Articles 48 and 52 of the Regulations on Supervision of Business of the Financial Industry, and received notice of its maturity within six months.

2) Meanwhile, on May 2, 2011, the Financial Supervisory Service issued a prior notice to the Plaintiff that “In accordance with Article 628 of the Commercial Act and Article 39 of the Mutual Savings Banks Act, the act of proposing the payment of capital or the performance of the investment in kind should not be conducted. However, the preceding day of the capital increase with capital increase issued by a third party on December 2, 2009, the mutual savings bank pretended to make the payment of capital KRW 20 billion in the name of Nonparty 1, Nonparty 6, Defendant 4, and Defendant 5, and that it would take necessary measures.”

(d) the progress of related criminal cases;

The preceding representative director of a mutual savings bank, in relation to the non-party 1 and the defendant 4's 10 billion won out of the capital increase consideration of December 2, 2009, the non-party 8 borrowed 10 billion won from the defendant 7 for the purpose of using the 10 billion won in capital increase consideration of the previous mutual savings bank, and offered the cover notes equivalent to 10 billion won in total purchased by the mutual savings bank as security, thereby allowing the defendant 7 to obtain property profits equivalent to 10 billion won, and incurred property damages equivalent to the same amount in the mutual savings bank before December 2, 2009, the non-party 2 was found guilty of the above 10 billion won out of the 100 billion won capital increase consideration of the previous mutual savings bank (the above 201 billion won increase in capital increase consideration of the above 10 billion capital increase of 100 billion won and 100 billion won in capital increase of the previous 201 million capital increase of the previous 201 billion won (the first 2016101 billion won judgment).

【Unsatisfyal grounds for recognition】Non-satisfy, Gap evidence 1 through 4, 8, 9, 17, 18, 20 (including branch numbers; hereinafter the same shall apply), Eul evidence 9, Eul evidence 1-1 through 3, Eul evidence 1-5, Eul evidence 1-2, and the purport of the whole pleadings

3. The parties' assertion

A. Summary of the plaintiff's assertion

1) The act of a mutual savings bank’s offering of new shares and issuing a pledge to shareholders participating in the investment in the capital increase before the business suspension of the mutual savings bank prior to the day preceding the day when the business suspension of the mutual savings bank was suspended, which constitutes an act detrimental to bankruptcy creditors prior to the declaration of bankruptcy, and constitutes an intentional act under Article 391 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act, an intentional act under Article 391 subparag. 3 of the same Act, or a gratuitous act under Article 391 subparag. 4 of the same Act, and thus, the Plaintiff denies the act of pledgeing a pledge and the act of issuing a certificate of deposit.

2) Therefore, as compensation for the value following the Plaintiff’s exercise of the right to set aside a pledge, (1) if the beneficiary is deemed to be Nonparty 1 and Defendant 4, Defendant 1 is obligated to pay the Plaintiff the amount of KRW 2,142,852,142 (3/7 of the amount of KRW 5 billion increased in the name of Nonparty 1, among the amount of KRW 5 billion increased in the name of Nonparty 1), Defendant 2, and Defendant 3 are liable to pay the amount of KRW 1,428,571,428 (2/7 of the amount of KRW 5 billion increased in the name of Nonparty 1, the amount of KRW 5 billion, and the amount of delay compensation for the amount of KRW 5 billion, if the beneficiary is deemed to be Defendant 6 and Defendant 7, and the amount of delay compensation for the amount of KRW 3 billion, KRW 7 billion, KRW 7 billion, and KRW 98 billion, if deemed to be the beneficiary and beneficiary of Defendant 1 and the beneficiary of Defendant 5 billion.

B. Summary of the defendants' assertion

1) Defendants 1, 2, 3, and 4

Nonparty 1 and Defendant 4 merely become a shareholder of a mutual savings bank in the process of issuing new shares upon Nonparty 8’s request, through lending its name in the process of issuing new shares, and there was no fact that the mutual savings bank was actually invested by contributing funds or created a pledge to secure its investments. Thus, the said act cannot be deemed a party to the act of pledge and thus, cannot be deemed a party

2) Defendant 6, Defendant 7

A mutual savings bank borrowed KRW 3 billion from Defendant 6, Defendant 7, and KRW 7 billion from Defendant 7, respectively. Such borrowing act is an act to promote the personal interest of Nonparty 8, and the subject of whom substantial rights and obligations accrue therefrom is Nonparty 8, and the preceding day is not a pledge act to receive a refund of investment due to capital increase issued by a mutual savings bank, but a mutual savings bank borrowed new funds from Defendant 6 and Defendant 7 and deposited them into a deposit account, and thus constitutes an adequate act of establishing a pledge against a deposit claim, and does not affect the property responsible of a mutual savings bank. Thus, it cannot be deemed that such act of establishing a pledge constitutes an act detrimental to the creditor, or that Defendant 6 and Defendant 7 were aware that other creditors of a mutual savings bank were harmed by the preceding day.

Even if the act of pledge as above is subject to the exercise of the right to set aside, loans owed to a mutual savings bank on the preceding day by Defendants 6 and 7 must be repaid from the mutual savings bank on the preceding day, and as there are profits arising from the enforcement of the right to set aside by Defendants 6 and 7, there is a benefit arising from the execution of the right to set aside by Defendants 6 and 7. Thus, the existing right to set off against the equivalent amount of compensation claims arising from the exercise

3) Defendant 5

Defendant 5 did not receive new shares by investing KRW 5 billion in a mutual savings bank prior to the preceding day, and in particular, Defendant 9, while running a credit business, was issued with a certificate of deposit in order to substantially lend funds to the mutual savings bank and secure them, and Defendant 5 was employed by Defendant 9 and performed as a substitute for such business. Thus, Defendant 5 cannot be the other party to the exercise of the right to set aside.

Even if Defendant 5 lent funds to a mutual savings bank on the preceding day, it cannot be deemed that Defendant 5’s act of receiving a certificate of deposit to secure loan claims by the mutual savings bank on the preceding day constitutes an act of offering collateral for a new loan, and thus the act of issuing such certificate of deposit constitutes an act of damaging creditors, or that there was an intention to impair other creditors, and thus, Defendant 5’s claim for loans to a mutual savings bank on the preceding day is not subject to the exercise of the right to set aside, and it is not subject to the exercise of the right to set aside. Defendant 5’s claim for loans against a mutual savings bank on the preceding day of the preceding day should be repaid from the mutual savings bank on the preceding day. As such, Defendant 5’s claim for reimbursement of outstanding profits

4) Defendant 8

Defendant 8 had an identification card and passbook issued to Defendant 9. As a result, Defendant 8’s personal information acquired by Defendant 8 in the course of exercising the security right to the certificate of deposit issued by the mutual savings bank from Defendant 9 to secure it. As such, Defendant 8’s personal information was merely stolen in the course of exercising the security right to the certificate of deposit issued by the mutual savings bank from Defendant 9.

5) Defendant 9

Defendant 9, while lending KRW 10 billion to Defendant 8 who runs a loan brokerage business, received a certificate of deposit issued by a mutual savings bank on the preceding day to secure this, and Defendant 8 re-loans the borrowed money to the mutual savings bank on the preceding day. Thus, even if there is no money transaction between Defendant 8 and the preceding day, Defendant 9 is not a party to a money transaction with a mutual savings bank, and thus, he cannot be a party to the exercise of the right to set aside

Even if Defendant 9 lent funds to a mutual savings bank on the preceding day, the act of Defendant 9’s receipt of a certificate of deposit by the mutual savings bank to secure loan claims constitutes an act of offering collateral for a new loan, and thus, cannot be deemed to constitute an act of damaging creditors, or the act of issuing such certificate of deposit constitutes an act of causing damage to creditors, or the act of causing damage to other creditors, and thus, Defendant 9’s claim for loans to a mutual savings bank on the preceding day is not subject to the exercise of the right to set aside from the mutual savings bank on the preceding day. As such, Defendant 9’s current interest arising from Defendant 9’s exercise of the right to set aside the amount equal to the Plaintiff’s claim for compensation for value arising from the exercise of the right to set aside

4. Judgment on the issue

A. Order of determination

If the act of establishing a pledge and issuing a certificate of deposit aimed at collateral does not constitute an act subject to avoidance as alleged by the Plaintiff, it is unnecessary to further examine whether the other party is determined by compensation for the equivalent value in lieu of restitution due to the exercise of the right to set aside. Thus, the above act of setting up a security interest is subject to the exercise of the right to set aside.

(b) Fact of recognition;

1. Reasons for capital increase of a mutual savings bank

A) On the preceding day of January 2008, the Financial Supervisory Service notified a mutual savings bank that its equity capital ratio should be 20 billion won or more in order to maintain the equity capital ratio above 5% as a business improvement measure, and accordingly, the Financial Supervisory Service notified the mutual savings bank of the fact that the equity capital ratio should be 20 billion won or more should be increased. As such, the mutual savings bank’s capital increase delayed due to the delay

나) 전일상호저축은행은 2009. 3. 25. 주식회사 햄튼의 대표이사인 소외 9로부터 100억 원을 차용하고, 전일상호저축은행의 운영자금으로 주식회사 우리은행 전주지점에서 액면금 100억 원의 양도성예금증서를 매수하여 담보로 제공하면서 ‘(상호 4 생략)’라는 상호의 대부업체로부터 100억 원을 차용(월 3%의 비율로 계산한 선이자를 지급하기로 하였다)하여 마련한 합계 200억 원을 별단예금계좌를 통하여 관리하다가 금융감독원의 승인을 받아 전일상호저축은행의 최대주주였던 소외 2 명의로 1주당 신주발행가액을 5,000원으로 하여 기명식 보통주 400만 주에 대한 유상증자를 실시하였다.

C) After that, the Financial Supervisory Commission notified a mutual savings bank of a management improvement implementation plan to maintain 5% of the equity capital ratio in BISD 5% through a due diligence, and demanded that the capital increase of KRW 45 billion in December 2, 2009 (22.1 billion in oil, and 22.9 billion in real estate free donation) be made.

2) The act of establishing a pledge against Defendants 6 and 7 of a mutual savings bank on the preceding day

A) On the preceding day of July 22, 2009, a mutual savings bank was issued a cover note with a face value of 10 billion won at the front place of the bank in Korea, using the operating funds of the mutual savings bank, as collateral, and borrowed 10 billion won as a maturity of one month for the purpose of using it for capital increase with a view to using it as capital increase from Defendant 7, and deposited it in a regular mutual savings bank account (Account Number 1 omitted) on the preceding day in the name of Nonparty 1.

B) On August 20, 2009, mutual savings banks withdrawn KRW 10 billion, which was deposited at the Taeyeongdong Branch of the Jeonbuk Bank Co., Ltd. and repaid the loans owed to Defendant 7 as collateral and recovered the cover notes offered as collateral.

C) The preceding day of the mutual savings bank, when it withdraws 10 billion won deposit and uses it to repay the loan obligations, and the shortage occurs. On August 21, 2009, the mutual savings bank decided to borrow 10 billion won from Defendant 6 and Defendant 7 at the rate of 10 billion won per annum and 24% per annum. On the preceding day, the mutual savings bank opened a deposit account at the National Bank in the name of the National Bank (hereinafter “National Bank”) and deposited 10 billion won in the name of the former day, and then set up a pledge on the deposit claim and then deliver to Defendant 6 and Defendant 7 the following documents: each of the terms of the request, standard form of loan transaction, interest payment, loan certificate, loan certificate, letter of delegation, letter of delegation, financial transaction, proxy form, resident registration card, certified copy, employee identification card, certificate of personal seal impression, etc.; and

D) On August 21, 2009, a mutual savings bank borrowed a sum of KRW 3 billion from Defendant 6, and KRW 10 billion from Defendant 7, and thereafter opened a national bank account in the name of the mutual savings bank and deposited it in the name of the mutual savings bank before the preceding day, and on the deposit claim (Account No. 2 omitted) of KRW 3 billion against Defendant 6, each pledge (hereinafter “instant pledge act”) was established on the deposit claim (Account No. 3 omitted) of KRW 7 billion against Defendant 7.

E) The preceding day, Defendant 6, and Defendant 7 repeated the act of lending and establishing a pledge in the same manner as above whenever a monthly due date for one month for the obligation to repay a loan amounting to KRW 10 billion arrives. On November 19, 2009, a mutual savings bank immediately preceding the preceding day decided to borrow a total of KRW 3 billion from Defendant 6, KRW 7 billion from Defendant 7, interest rate of KRW 24% per annum, and KRW 10 billion on December 18, 2009, and deposited KRW 10 billion in the national bank deposit account in the name of the mutual savings bank on the preceding day, and against Defendant 6’s deposit claim amounting to KRW 3 billion, Defendant 7 billion, each pledge was created against the deposit claim amounting to KRW 7 billion.

F) On the other hand, on November 13, 2009, a mutual savings bank borrowed 10 billion won from Defendant 7 and deposited 10 billion won in a regular deposit account in the name of Nonparty 1 and Defendant 4 respectively, and deposited 5 billion won in a separate deposit account (Account No. 4 omitted) of the mutual savings bank on the preceding day in the name of Nonparty 1 and Defendant 4, respectively. On December 2, 2009, the mutual savings bank was treated as having paid 10 billion won in total under the name of Nonparty 1 and Defendant 4 as capital for issuing new shares.

G) On December 30, 2009, Defendant 6 withdrawn KRW 3 billion and Defendant 7 billion respectively from each deposit account of a mutual savings bank under the instant pledge act.

3) Issuing certificates of deposit to the preceding mutual savings bank, including Defendant 9 note 1, etc.

A) On November 3, 2009, Defendant 9, etc. entered into an agreement with Nonparty 12 with Nonparty 10 and Nonparty 11 on an Eck that, while participating in the private equity fund Donel, a global investment advisory company, as LP, KRW 30 billion in the No. 30 billion in the No. 30 billion in the No. 1 of the private equity fund, and prior to that, engaging in investment in mutual savings banks through capital increase, Defendant 9, etc. agreed to keep Nonparty 12 as capital increase (the check KRW 18 billion in the transfer deposit certificate, KRW 12 billion in the transfer deposit certificate).

B) Defendant 9, etc. agreed with Nonparty 8 on November 2009 to terminate the said investment contract and Esck agreement, and Defendant 9, etc. agreed to lend KRW 12.1 billion to mutual savings banks prior to the preceding day, and instead, to receive a certificate of deposit in order to secure the loan claim amounting to KRW 10 billion.

C) On the preceding day, the board of directors held on November 30, 2009 at the meeting of the board of directors, which held on November 30, 2009, decided to provide security by taking possession of Defendant 5 until the issuance of new shares, with a view to participating in capital increase for business normalization at the request of Defendant 5.

E) On December 1, 2009, mutual savings banks purchased the certificate of deposit (hereinafter referred to as the “certificate of deposit in this case”) with the operating fund of the mutual savings bank and provided it as security (hereinafter referred to as the “issuance of the certificate of deposit in this case”) to the defendant 9 et al. at the same location as shown below at the Bank’s Dong branch of the Bank of Korea on December 1, 2009. The act of pledge in this case and the act of issuing the certificate of deposit in this case was combined with the act of creation of the security right in this case).

(1) The following facts:

F) As of December 1, 2009, Defendant 5 remitted KRW 5 billion to Defendant 8’s name, and KRW 2.1 billion to Defendant 5’s name, among the loans of KRW 12.1 billion to mutual savings banks, and Defendant 5 delivered the remainder of KRW 5 billion to Nonparty 15 who was the managing director of mutual savings banks. Nonparty 15 deposited KRW 5 billion to Defendant 5’s account in the name of mutual savings banks on the preceding day.

G) On December 2, 2009, the preceding day of a mutual savings bank is considered to have paid KRW 5 billion each from Nonparty 6 and Defendant 5, and KRW 12.1 billion each from Nonparty 7, as capital for issuing new shares for capital increase.

H) The previous mutual savings bank met 1.2 billion won in total with the loan obligation of Defendant 5, which was borrowed from Nonparty 5, and KRW 900 million in 1.2 billion in c.i.e., cash borrowed from Defendant 5 (which means cash that a city bank borrowed and left its customers’ deposits, and is also deemed excess reserve requirements).

I) On December 30, 2009, 10 billion won's cashier's check (number 1, 2, 3, and 4 omitted) was issued according to the certificate of deposit of this case. Among them, one (number 2 omitted) deposited in the Korean Scaddrid Bank account (Account Number 5 omitted) under the name of Samcheon Comprehensive Construction Co., Ltd., and again issued one (Account Number 5 omitted) of the face value of KRW 1.3 billion in the face value, and then deposited in the Acs Bank account (Account Number 6, 7 omitted) under the name of 13 Scadrid Bank account (Account Number 6, 7 omitted) in the name of the non-party 13 who had a relationship with the defendant 9. The remaining nine (7 omitted) was transferred to each of the above accounts in the name of ASEAN Corporation, and then deposited more than 5.00 billion won in the face value of KRW 26,77 omitted.

【In the absence of dispute over the grounds for recognition, Gap evidence 2, Eul evidence 5-2, Gap evidence 6, 7, 10 through 16, 21, Eul evidence 1 through 3, Eul evidence 1 through 8, 10, 16, Eul evidence 1-4, Eul evidence 2 through 54, Eul evidence 1 through 4, 7, Eul evidence 3, 5, 6, Eul evidence 3, 16, testimony of non-party 13, testimony of non-party 8 of the first instance trial witness, the same branch of the Industrial Bank of Korea, the Korea Scaddrid Bank, and the result of each order to submit financial information to the IBK Bank, the purport of the whole pleadings as a result of the whole.

C. Whether the act was harmful and improper

1) Relevant legal principles

A) "Act performed by the bankrupt, who is an act subject to avoidance under Article 391 of the Debtor Rehabilitation Act, knowing that the bankrupt would prejudice the bankruptcy creditor" not only so-called fraudulent act which absolutely reduces the general property of the bankruptcy creditor, which is a joint security of all creditors, but also includes so-called biased act which affects the bankrupt's property relationship with a specific creditor and is contrary to the fairness with other bankruptcy creditors, such as repayment or provision of security to a specific creditor. However, in order to be recognized as an intentional person, the bankrupt should know that the bankrupt's act would prejudice the bankruptcy creditor as a subjective requirement. However, in order to prevent the occurrence of a type of act subject to avoidance under the Bankruptcy Act and to promote transaction safety and balance, it is necessary to recognize that only repayment or security should be provided to a specific creditor in order to avoid the principle of equality of creditors applicable when bankruptcy procedures commence (see Supreme Court Decision 200Da2731, Nov. 10, 2005; Supreme Court Decision 2000Da3271, Feb. 27, 2007).

B) Even if the act subject to avoidance in bankruptcy proceedings is harmful to bankruptcy creditors, there may be cases where it is deemed that the act is socially necessary, reasonable, or inevitable, depending on individual and specific circumstances at the time of the act, and thus general bankruptcy creditors need to suffer decrease in the bankruptcy estate or unfair business practices. In such exceptional cases, it shall not be subject to the exercise of the right to set aside under Article 391 of the Act in light of the legal guiding ideology or the concept of justice such as equality of creditors, protection of the debtor and coordination of the interests in bankruptcy. In addition, the determination of reasonableness of the act should be made specifically in light of the principle of good faith and the idea of fairness, based on the following factors: (a) the debtor’s property and business status at the time of the act; (b) the debtor’s property and business status at the time of the act; (c) the purpose and motive of the act; (d) the source of the repayment fund; (d) relationship with the debtor and the creditor; and (e) whether the creditor has exercised influence in collusion with the debtor or forcing the payment (see, etc.).

2) Specific determination

In light of the aforementioned facts and the overall purport of the arguments revealed in light of the following circumstances, it cannot be readily concluded that the instant act of creation of a security interest constitutes an act detrimental to bankruptcy creditors, or that mutual savings banks were aware of such outcome prior to the time. Even if the instant act of creation of a security interest was caused by an act detrimental to external bankruptcy creditors, it is reasonable to view that the instant act constitutes an exceptional case where a general bankruptcy creditor is deemed socially necessary and reasonable or inevitable, and thus, it constitutes an exceptional case where a general

A) The preceding day, at the time of the instant act of creating a security interest, a mutual savings bank continued to demand capital increase to maintain 5% the equity capital ratio of BISD standards by the Financial Supervisory Service. In the event that such capital increase is not made, it seems inevitable to borrow money on the condition of the instant act of creating a security interest in view of the circumstances where it is difficult to continue business due to the disposition of business suspension, etc.

B) The preceding day is a mutual savings bank that entered into an agreement on the creation of the instant security right on the condition that it borrows money from Defendant 6, Defendant 7, and Defendant 9, etc., and thus, it shall be determined as all acts. As long as the preceding day mutual savings bank received a loan from Defendant 6, Defendant 7, Defendant 9, etc., it is not deemed that only the act of creation of the instant security right was separated and that the

C) The preceding day borrowed KRW 10 billion from Defendant 7 to use for capital increase and provided as collateral a cover bill with a face value of KRW 10 billion at the front point of Korea, and withdrawal of the operating funds of a mutual savings bank before the preceding day and repayment of the above loan obligations. Following the preceding day, the mutual savings bank borrowed KRW 10 billion from Defendant 6 and Defendant 7 and deposited the money in the fixed deposit account in the name of the national bank in order to secure the above loan obligations. In addition, the mutual savings bank purchased the certificate of deposit with the operating funds of the mutual savings bank and provided it as collateral to Defendant 9, etc., and borrowed KRW 12.1 billion from Defendant 9, etc. to pay the money as capital for capital increase following the issuance of new shares. Furthermore, the foregoing loan was actually deposited with the account of the mutual savings bank, while Defendant 6, Defendant 7, and Defendant 9 et al. were aware that there was the largest influence on the financial status of Defendant mutual savings bank before and after the preceding day, it is difficult to view that Defendant 6 was an obligee’s prior to exercise the foregoing principle.

D) The instant act of creating a security interest is not for the previous debt but for the purpose of continuing business by avoiding a disposition of business suspension by the Financial Supervisory Service, etc., and on such premise, borrowing of funds and the instant act of establishing a security interest have been conducted simultaneously exchanged. It cannot be deemed that the joint security interest of the bankruptcy creditors was reduced due to the lack of usefulness of loans and possibility of seizure, or damage to the bankruptcy creditors.

E) Even if the instant act of creation of a security interest constitutes a violation of Article 18-2 subparag. 3 of the Mutual Savings Banks Act or an abuse of power of representation by Nonparty 8, and thus constitutes null and void due to the resolution of the board of directors of a mutual savings bank prior to the preceding day, such circumstance alone does not deem that the instant act of creation of a security interest constitutes an act detrimental to bankruptcy creditors or undermining

3) Sub-decisions

Therefore, the act of creation of the security right of this case cannot be subject to the exercise of the avoidance power, so the prior plaintiff's assertion on a different premise is without any reason to further examine the remaining points.

5. Conclusion

Therefore, the plaintiff's claim against the defendants in this case is dismissed in its entirety due to the lack of reason. Since the part against the defendant 6, 7, and 5 in the judgment of the court of first instance as to the defendant 6, 5 is unfair with different conclusions, it is accepted by the defendant 6, 7, and 5, and it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. It is so decided

Judges 2-2 (Presiding Judge)

1) Gap evidence Nos. 16, Eul evidence Nos. 16, Eul evidence Nos. 9 through 12, Eul evidence No. 14, Eul evidence Nos. 5 and 6, testimony of non-party 13 and testimony of non-party 8 witness of the court of first instance on behalf of non-party 1, i.e., the defendant 9 employed defendant 5 and paid national health insurance premiums. ② The non-party 8 borrowed 12.1 billion won from defendant 9 who operated corporate bonds business as collateral. Of these, it is reasonable to view that "the non-party 2 provided 9 billion won to the non-party 6, non-party 7, and defendant 5's capital increase with the above 1.0 billion won as collateral, and the other 2.1 billion won was repaid after 2.3 billion won as collateral for the operation of the mutual savings bank, and the defendant 9.3 billion won was offered to the non-party 1's testimony under the name of the defendant 2 as collateral."