The case holding that the reorganization company's act of providing joint and several guarantee and real guarantee for the debt of its affiliated company does not constitute a gratuitous act subject to avoidance under Article 78 (1) 4 of the Company Reorganization Act.

The case holding that the reorganization company does not constitute a gratuitous act that is subject to avoidance under Article 78 (1) 4 of the Company Reorganization Act on the ground that it received economic benefits in return for the provision of joint and several sureties and physical guarantee for the debt of its affiliated company.

[1] Article 78 (1) 4 of the Company Reorganization Act

The bankruptcy trustee and one other (Law Firm Sejong Chang, Attorneys Kim-hwan et al., Counsel for the plaintiff-appellant) of the Korea General Finance Corporation against the bankrupt, a lawsuit taking over the lawsuit of the Korea General Finance Corporation

Administrator Kim Sung-ok Co., Ltd. (Law Firm 21st century General Law Office, Attorneys Lee Sung-hwan et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2001Na9129 delivered on August 16, 2002

1.The plaintiff shall confirm that the reorganization company has a security of 46,773,883,245 won and a equivalent amount of voting rights to the reorganization company, Inc.

2. The plaintiff's remaining claims are dismissed.

3. Five minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The plaintiff shall confirm that the reorganization company has a security of KRW 57,570,472,585 as well as a right to vote equivalent to the same amount as that of the reorganization company.

1. Basic facts

(a)Korea Comprehensive Finance Corporation (hereinafter referred to as the "Bankruptcy Company") is a company operating a comprehensive financial business, and Nasan Clsan Co., Ltd. (hereinafter referred to as the "Clsan Co., Ltd.") is a subsidiary company of Nasan Group and Nasan Co., Ltd. (hereinafter referred to as the "Slsan Co., Ltd") is a subsidiary company of Nasan Group (hereinafter referred to as "Slsan").

(b)The bankrupt company shall enter into a bill transaction agreement with the non-party company, and the reorganization company shall provide a joint and several surety for the obligations to the non-party company in accordance with the above bill transaction agreement and shall provide a security for it:

(1)The bankrupt company and the non-party company entered into a bill trading agreement of maximum 30 billion won on March 27, 1997, with an increase of maximum 30 billion won on July 29, 1997, and entered into a bill trading agreement of maximum 60 billion won on July 29 of the same year. There is no time limit for transaction, and the non-party company bears all other obligations relating to bill transactions which are currently or will be borne or will be borne in the future. The non-party company bears interest, damages, and other incidental expenses according to the rate and calculation method set by the bankrupt company, and the non-party company agrees that if there is a disposition of suspension of transaction by a clearing house against the non-party company or if there is a cause for suspension of payment, etc., the bankrupt company provided a loan of total 19 billion won to the non-party company by means of a bill discount.

(2) On March 28, 1997, the reorganization company set the first-class collective security right with a maximum debt amount of 30 billion won as of March 28, 1997 and the second-class collective security right with a maximum debt amount of 3.5 billion won on July 28, 1997 with respect to each of the above two parcels of land owned by the reorganization company, in order to secure the non-party company's liabilities that are currently borne or will be borne by the bill discount, bill lending, payment guarantee, and all other causes for bills against the bankrupt company. On August 27, 2008, the building of this case was added to the building of this case on the object of each of the above 1 and 2-class collective security rights (hereinafter "the building of this case").

(c)The bankrupt company paid to the non-party company the amount of 4 billion won on January 16, 1998, the amount of 4 billion won on January 16, 1998, the amount of 17 billion won on January 12, 1998, the amount of 15 billion won on January 13, 1998, the amount of 8 billion won on January 16, 1998, the amount of 16 billion won on January 13, 1998, each of the four promissory notes of 10 billion won on the date of payment on January 16, 1998, and the total amount of 39 billion won on the date of payment on January 14, 1997, but the non-party company refused payment.

(d)In addition, on July 31, 1996, the bankruptcy company guaranteed the payment of the principal amount of the non-party company's 30 billion won and interest 2.7 billion won. The major contents of the guarantee period are from August 5, 1996 to August 4, 1998, and the bankruptcy company received from the non-party company the guarantee fee at the rate of 0.7% per annum from the non-party company in advance every three months, and when the non-party company files an application for the settlement of a bill, check, or company, the bankruptcy company shall pay the principal and interest on behalf of the company to the non-party company and receive interest at the rate of overdue loan determined by the bankruptcy company from the date of payment to the date of full payment.

(e)The bankrupt company paid on behalf of the non-party company KRW 1,125,00,000,000 in total, as interest of the debentures every three months from February 5, 1998 to February 5, 199, with respect to the foregoing debt guarantee;

(f)A reorganization company was established on October 30, 1996, and was ordered to suspend transaction from financial institutions on January 15, 1998, and was ordered to commence corporate reorganization from this court on December 18, 1998. At the time of the commencement of corporate reorganization procedure, the market price of the instant site and buildings was KRW 47,184,793,200.

(g)As of December 17, 1998, the bankrupt company reported 46,73,83,245 won in total, including (46,78,83,245 won in interest at the rate of 25% per annum under the provisions governing the handling of the Bills of Exchange and Promissory Notes until December 17, 1998 (39,90,91,168,870 won in interest at the discount of the Promissory Notes) and interest at the rate of 25% per annum until December 17, 1998 (2) 9,575,000,000 won in total, including (1,089,90,90,168,000 won in interest at the discount of the Bills of Exchange and Promissory Notes) and (2) 1,089,90,0000 won in total,000 won in interest at the rate of 25% per annum from each of the outstanding amounts and outstanding amounts.

[Ground of recognition] A without dispute, Gap 1 through 11, Gap 18, Gap 19-1 through 9, Gap 21, 22, Eul 1-1, 23, Eul 1-2, 23, Eul 2-1, 2-1, and 2-2, Eul 2-1, and 2-2

2. Determination:

A. As to the bill discount obligation

(1) According to the above facts, the liquidation company guaranteed the debt owed to the bankruptcy company of the non-party company according to each of the above agreements on transactions of bills and provided it as security by establishing each of the collateral worth of 65 billion won, totaling the maximum debt amount per each of the above agreements on transactions of bills against the non-party company, and barring special circumstances, the liquidation company shall have voting rights equivalent to the same amount as the secured debt amount of each of the above agreements on transactions of bills against the non-party company, 46,73,83

(2) Judgment on the defendant's assertion

The defendant asserts that the non-party company was extinguished since it was loaned 19 billion won from the plaintiff as the secured debt with respect to the right to collateral security on March 27, 1997, and was fully repaid from July 7 to the 10th of the same month.

In full view of the results of the statement No. 9, the testimony of the above witness's disease, and the fact-finding on the manager of Nasan Co., Ltd. of this court's reorganization company's whole purport of the pleadings, the non-party company borrowed a total of 19 billion won from the bankruptcy company on March 27, 1997 by the method of bill discount, and the non-party company received a loan from the bankrupt company on July 7, 1997 to the 10th of the same month without actually receiving a new bill discount loan from each of the due date, and repaid the loan, and thereafter extended the payment period for the above loan by the same method. Thus, the defendant's above assertion is without merit.

In addition, according to Article 78 (1) 4 of the Company Reorganization Act, the "act of gratuitous act performed by the company within six months prior to the suspension of payment or the commencement of reorganization proceedings" can be denied for the company's property after the commencement of reorganization proceedings. Generally, the act of joint and several sureties or security between affiliates constitutes gratuitous act. Thus, the reorganization company's contract of mortgage on July 28, 1997, which was conducted prior to the payment suspension date from January 15, 198, and joint and several sureties contract of bill transaction on August 27 of the same year, and additional mortgage contract of August 27 of the same year is a gratuitous act stipulated in the above Article. Further, if a mortgage contract constitutes a gratuitous act under the above Article, it shall be determined as of the date of occurrence of collateral obligation if the contract date is different from the date of occurrence of collateral obligation under the above Article, and it shall be determined as of the date of occurrence of collateral obligation in accordance with the legal principles as to the settlement of the bill.

The term "free act" in the above law refers to an act of reducing the company's active property without receiving any consideration, or increasing its obligation, i.e., a small property, and a guarantee or security provided for another person without any obligation, even if it directly causes the creditor's contribution to the principal debtor, it constitutes a gratuitous act as mentioned above unless the guarantor or the secured person receives economic benefits in return.

Therefore, in full view of all pleadings with respect to whether the above joint and several sureties and security act of the reorganization company is a gratuitous act, and the statements in Gap, 11, 12, and 13 and the testimony in the above witness rights examination committee as to whether the above act of offering collateral is a gratuitous act, the non-party company's interest in bill discount loan borrowed from the bankruptcy company is the principal amount of 38,949,04,299, the non-party company's interest in the short-term loan of the non-party company's non-party company's non-party company's non-party company's Nasan General Construction (hereinafter "Nasan General Construction") 39,303,262,037 out of the 49,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

B. As to the non-party company's obligations based on the corporate bond payment guarantee contract

(i)The plaintiff's assertion

The plaintiff asserts that, when the reorganization company concludes each of the above collateral contract, the secured debt of the non-party company was agreed to be the loan of bills, bill discount, payment guarantee, and all other causes which are to be borne at present by the non-party company to the bankruptcy company, and thus, the secured debt of the non-party company under the above bond payment guarantee contract is included in the secured debt of each of the above secured debt, and therefore the plaintiff has a security equivalent to the above secured debt of the reorganization company.

(ii)Sales;

However, in a case where the contract to establish a collateral is a contract which is uniformly printed and used by a financial institution in the form of a general transaction agreement, the scope of the secured obligation should be comprehensively included in the existing or future obligation in addition to the loan obligation given by the financial institution as the collateral security, even if the contract clause provides that the scope of the secured obligation should be comprehensively included in the existing or future obligation in addition to the loan obligation granted as the collateral security right, in light of other circumstances, such as the circumstances leading up to the establishment of the loan obligation as well as the relationship between the amount of each existing obligation and the maximum amount of debt and the maximum amount of debt on the collateral security, the interpretation of the scope of the secured obligation would rather violate the loan practice of the financial institution and the intent of the parties to the contract is reasonable, and it is reasonable to exclude the binding force by deeming that the comprehensive provision on the secured obligation in the above contract is merely an example of a general transaction agreement printed in the same text.

In light of the above legal principles and records, the non-party company established a collateral security contract with the non-party company on March 27, 1997 (the maximum debt amount of KRW 30 billion) and the maximum debt amount of KRW 30 billion on the site of this case, and the non-party company established a collateral security contract with the non-party company on March 27, 199, and borrowed a total of KRW 19 billion to the reorganization company on March 28, 1997. The non-party company and the non-party company established a collateral security contract with the same maximum debt amount of KRW 30 billion on the site of this case including KRW 70 billion on July 28, 1997. The non-party company established a collateral security contract with the above maximum debt amount of KRW 19 billion on each of the above collateral security contract with the non-party company on August 27, 196. The non-party company established a collateral security contract with the same maximum debt amount of KRW 19 billion on each of the above collateral security contracts.

3. Conclusion

Thus, the plaintiff shall have voting rights equivalent to the equivalent amount of security of 46,773, 883,245 won, equivalent to the amount of the above-mentioned discount obligation against the reorganization company. Thus, the plaintiff's claim is justified within the extent of the above recognition, and the remaining amount is without merit.

Judges landscaping column (Presiding Judge) Transfer of Kim Jong-cat