Where a financial institution appropriates funds for the repayment of existing claims due to loans extended by the Korea Technology Credit Guarantee Fund, the Korea Technology Finance Corporation shall conclude an agreement exempted from the obligation to discharge the guaranteed liabilities

The Korea Technology Credit Guarantee Fund has a public institution whose main business is to guarantee monetary liabilities from loans from banks or other financial institutions (Articles 12 and 2 subparagraph 6 of the Act on the Support of New Technology Projects) for small and medium enterprises which lack security capacity to obtain loans from the Korea Technology Credit Guarantee Fund (Articles 12 and 2 subparagraph 6 of the Korea Technology Credit Guarantee Fund Act). If loans from the Korea Technology Credit Guarantee Fund as credit guarantee are used as a means of seeking to recover the existing claims of the relevant financial institutions, it is difficult for small and medium enterprises, etc. to raise business funds, to supplement the credibility of small and medium enterprises, etc., to smoothly provide funds for new technology businesses, and to contribute to the development of the national economy. Thus, an agreement between the Korea Technology Credit Guarantee Fund and financial institutions on credit guarantee transactions between the Korea Technology Credit Guarantee Fund provides that the Korea Technology Credit Guarantee Fund shall be exempted from the responsibility for the repayment of existing claims if any existing claims are collected through a credit guarantee loan secured by the Korea Technology Credit Guarantee Fund in violation of the aforementioned provisions and its contents. In light of the aforementioned purport and contents, where some loans have been appropriated for the existing claims, it is deemed reasonable to achieve the entire purposes.

Articles 1, 2 subparag. 6, and 12 of the Financial Assistance to New Technology Businesses Act, Article 428 of the Civil Act

Export-Import Bank of Korea (Law Firm Han-ro, Attorneys Long-ro et al., Counsel for the plaintiff-appellant)

The Korea Technology Finance Corporation (Attorney Park Jong-dae, Counsel for defendant)

Seoul District Court Decision 2000Na10528 delivered on October 12, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the interpretation of the discharge clause arising from the satisfaction of the existing obligation

A. The court of first instance cited by the plaintiff, as it has been offered by the plaintiff on December 196 to Handong Industrial Co., Ltd. (hereinafter referred to as the " Handong Industrial Co., Ltd."), with a loan of 150 million won for re-export capital under the credit guarantee of the Korea Credit Guarantee Fund, and thereafter, the plaintiff extended a loan of 100 million won to Handong Industrial Co., Ltd. (hereinafter referred to as the " Handong Industrial Co., Ltd.") on June 1996, with a credit guarantee of 197, with a loan of 50 million won which was offered by the defendant on June 5, 1997, with a loan of 50 million won from Handong Industrial Co., Ltd. (hereinafter referred to as the " Handong Industrial Co., Ltd."), with a loan of 100 million won for the purpose of credit guarantee of 70 billion won for the purpose of credit guarantee of 1.5 billion won in total and 1.5 billion won in total until such loan of 9 billion won in total loans.

B. The defendant is a public institution whose main business is to guarantee monetary liabilities for small and medium entrepreneurs, etc. to make loans from banks or other financial institutions for the purpose of smooth financing for small and medium entrepreneurs who lack security solvency (Articles 12 and 2 subparag. 6 of the New Technology Enterprise Finance Support Act). If a financial institution uses a loan secured by the defendant's credit guarantee as a means of seeking to recover the existing claims of the financial institution, it is difficult for small and medium entrepreneurs, etc. to raise business funds, to supplement the credibility of small and medium entrepreneurs, etc., to facilitate the provision of funds for new technology businesses, and to contribute to the development of the national economy. Thus, an agreement between the defendant and a financial institution on credit guarantee transactions between the defendant and a financial institution provides that the defendant shall be exempted from the obligation to pay the guaranteed debts in cases where it collects existing claims by means of a loan secured by a credit guarantee in violation of the above provision in order to prevent the repayment appropriation of existing claims and ensure its effectiveness. In light of the purport and content of the above provision, if a financial institution appropriated for repayment of existing claims with the defendant's credit guarantee installment, it must be extinguished without

In this case, Article 14 subparagraph 3 of the defendant's credit guarantee terms and conditions provide that when the plaintiff has appropriated all or part of loans with credit guarantee coverage without the defendant's consent to repay existing bonds, the defendant shall not be liable to pay the whole or part of the loan, and the scope of exemption pursuant to the criteria for exemption notified by the defendant to the plaintiff shall be the loan and its subordinate debt appropriated for the repayment of the existing bonds, and the repayment of the existing bonds shall not be deemed appropriated for the repayment of the existing bonds when the repayment of other guaranteed loans is appropriated. This is not appropriated for the repayment of other guaranteed loans with a part of a loan with credit guarantee coverage, which is established in a credit guarantee relationship with the defendant, and where the plaintiff has appropriated for the repayment of the existing bonds of the plaintiff, in light of the purpose and purpose of the technology credit guarantee system, such as where the small and medium enterprise owner, etc. can not obtain the full exemption of the guaranteed debt with the remaining part of the loan, it shall be deemed that the termination of the guaranteed

Therefore, the court below's determination that the Plaintiff's use of part of the loan secured by the Defendant's credit guarantee fund for the repayment of the loan guaranteed by the Defendant does not constitute "when it has been appropriated for the repayment of other credit guarantee loans" under the above exemption criteria, and since it constitutes a case where it has been appropriated for the repayment of existing debts under the above standardized contract, the Defendant is justified in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the interpretation of the exemption clause due to the repayment appropriation of existing debts. In addition, the above exemption clause is unclear, and thus, it cannot be viewed as a violation of the principle of good faith or an abuse of rights.

2. As to the violation of the rules of evidence

The court of first instance cited by the court below, as cited by the defendant, issued a financial transaction certificate in the defendant's future before issuing the letter of credit guarantee for an exported small and medium enterprise, and notified the defendant that there was an existing loan of KRW 150 million with respect to the guarantee of the Credit Guarantee Fund, and the defendant, without any objection, provided a credit guarantee for a loan of KRW 500 million, and the plaintiff offered a credit guarantee without any objection, and thus the plaintiff implicitly consented to the appropriation of part of the loan of KRW 500 million to the existing obligation, it cannot be deemed that the defendant consented to the appropriation of the existing loan as part of the credit guarantee of the plaintiff

Examining the relevant evidence in light of the records, the fact-finding and its determination by the court below is justified, and there is no violation of the rules of evidence against the rules of evidence. The grounds for appeal on this point are rejected

4. As to the violation of the Regulation of Standardized Contracts Act

The Plaintiff’s assertion that the Defendant’s exemption clause due to the appropriation for the repayment of existing bonds is null and void as it is in violation of the Regulation of Standardized Contracts Act, is a new argument that the Plaintiff only enters the final appeal court, and thus, cannot be a legitimate ground of appeal. In addition, in light of the purport that the Defendant established the exemption clause due to the Defendant’s appropriation for the payment of existing bonds and its contents, it cannot be deemed null and void as an unfair clause that unfairly compels the Defendant’s exemption clause in a superior position in a superior position in relation to the principal obligor who is a consumer of credit guarantee. The ground of appeal on this point is based on an independent opinion and cannot be accepted.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)