Korean Bank, Inc.

[Defendant-Appellee] Korea Financial Telecommunications Specialized Co., Ltd. (Law Firm, Kim & Lee, Attorney Park Jae-hwan, Counsel for

Korean Biosa Co., Ltd. and 12 others (Attorneys Lee Yong-hoon et al., Counsel for the plaintiff-appellant)

may 25, 2004

Seoul District Court Decision 97Da261400 delivered on August 13, 2002

1. The part against the Defendants in the judgment of the first instance shall be revoked.

2. The plaintiff's claims against the defendants are all dismissed.

3. To the successor intervenor:

(a) Defendant South Korea Co., Ltd. shall pay 1,38,239,37 won and 335,97,896% per annum from May 27, 1979 to December 9, 1980, 1,052, 20% per annum from the following day to 1.9.19: 9% per annum from the 2.19th day of January 11, 1981 to 1.2.9: 19% per annum from the 19th day of December 198; 19% per annum from the 19th day to 1.5th day of December 198; 19% per annum from the 19th day after such date to 1.19th day of December 29, 1981; 19% per annum from the 19th day to 1.19th day of December 29, 1981; 20% per annum.

B. Defendant 1 and Co., Ltd. and Co., Ltd. of the first instance trial for 1.2.0: 1,052, 291, and 41 annual 9.0% from the following day of 1.0 to 1.0.0% per annum for 2.1.0 9: 1.0% per annum for 2.0: 9: 2.0% per annum from the following day of 2.0: 9: 1.0 per annum for 2.0: 9: 1.0 per annum for 3.0: 9.0 per annum for 2.0; 9.0% per annum for 1.0; 1.5% from the following day of 2.3: 9:1.00 per annum for 9.0; 1.8% per annum for 1.0.00 per annum from the 19.05: 19.8.1981; 20% per annum for 19.18.

4. The total costs of the lawsuit shall be borne by the defendants.

5. Paragraph 3 can be provisionally executed.

1. Purport of claim

The plaintiff, the defendant Korean History Co., Ltd. paid the money set forth in Section 3-A (A) of the Disposition to the plaintiff, the money set forth in Section 3-2 (b) of the Disposition, and the money set forth in Section 3-2 (a) of the Disposition, the defendant Song Young-hee, Kim Young-hee, Kim Young-young, Kim Young-young, Kim Young-J, Kim Young-J, Kim Young-young, Kim Young-young, Kim Young-young, Kim Young-young, Kim Young-young, Kim Young

2. Purport of appeal

The part of the judgment of the first instance against the Defendants shall be revoked. The Plaintiff’s claim against the Defendants shall be dismissed in entirety.

1. Facts of recognition;

According to the purport of Gap evidence 18, Gap evidence 33 through 46, Gap evidence 67 through Gap evidence 69, Gap evidence 70-1 through 19, Gap evidence 71-1 through 9, Gap evidence 74, Gap's testimony and oral argument, the following facts may be acknowledged.

(a) Loans made on December 28, 1978;

(1) On December 28, 1978, Hanil Bank Co., Ltd. (hereinafter “ Hanil Bank”) entered into a bill trading agreement with the Co., Ltd. Co., Ltd. Co., Ltd. of the first instance trial to pay all obligations arising from the transaction of bills, such as bill lending, bill discount loan, etc., which is currently and in the future against Samil Bank, and agreed to pay the above loan at the rate of 498,735 U.S. dollars 498,735 per annum on May 26, 1979 on the basis of purchase of the bill of exchange drawn up as the date of May 26, 1979 and lent the amount of USD 198,735 per annum at interest rate of 13.05% per annum with respect to the above loan (hereinafter “the loan of this case”).

(2) Defendant Korean Life-long Co., Ltd. (hereinafter “Defendant Co., Ltd.”) and Co-Defendant Kim Young-ju, and Ship Co., Ltd. (hereinafter “Co-Defendant Co., Ltd.”) of the first instance trial jointly and severally guaranteed the Defendant’s obligation to lend the instant loan to the Korea-Japan Bank on the same day.

(b) Loans made on July 11, 1980;

(1) On July 11, 1980, Hanil bank entered into a bank transaction agreement with the view to performing all obligations arising from the transaction of bills, such as bill loans and bill discount loans, which are currently and in the future, with respect to Sam Il Han Bank, and agreed on the payment period of KRW 1,052,291,41 with the export bill loans to Sam Sejong as of January 10, 1981 and the interest rate set forth in the Han Han Bank as of January 10, 1981 and agreed on the payment period of KRW 1,052,441 with respect to the above loans and the payment period for delay at the interest rate set forth in the Han Han Bank (hereinafter “instant two loans”).

(2) The Defendant Company and the deceased Kim Jong-tae and the Co-Defendant Kim Young-ju in the first instance trial, and the Chosun-si were jointly and severally guaranteed with respect to the debt of the instant two loans to the Han-si Bank in the Republic of Korea on the same day.

C. The Clock does not pay each interest on the loans of this case from May 27, 1979 to January 11, 1980 with respect to the loans of this case, and the interest rate and overdue interest rate set by the Korea-Japan Bank are as stated in the attached interest rate and overdue interest rate sheet.

D. Meanwhile, after the death of April 9, 1982, Kim Jong-tae succeeded to the property as the co-defendant of the first instance court, the co-defendant of the defendant Kim Young-young, Kim Young-hee, Kim Young-hee, Kim Young-ok, Kim Young-J, Kim Young-J, Kim Young-J, Kim Young-J, Kim Young-J, Kim Young-J, Kim Young-young, Kim Young-young, and deceased on December 29, 1986, the co-defendant of the first instance court succeeded to the property by the reason, reason, reason, and reason that the co-defendant of the defendant who is the property heir, and the co-defendant of the first instance court succeeded to the property, and the above defendants succeeded to the property in proportion to the proportion as shown in the inheritance share sheet.

E. The latter bank was merged with the Korea Commercial Bank on January 1, 199 and changed to the Korea Light Bank. The Korea Light Bank changed to the Plaintiff on May 2002, and the Korea Light Bank transferred the instant 1 and 2 loans to the Plaintiff.

F. Assignment of loans claim 1 and 2 of this case

On March 30, 2002, under the Asset-Backed Securitization Act, the Plaintiff entered into an asset transfer agreement with the succeeding intervenor, which provides that the Plaintiff’s securitization assets, including the claim of KRW 44,402,334,29, which was held against the claim of KRW 1,200,00, shall be transferred to the succeeding intervenor. On April 27, 2002, the Plaintiff notified the transfer of the claim of KRW 44,402,334,29, including the claim of this case 1,202.

2. Judgment of law

According to the above facts, the defendant company is a joint and several surety for the debt of this case 1 and 2, and the remaining defendants are the debtor of the deceased Kim Tae-tae's property heir who is the joint and several surety for the debt of this case 2, and the succeeding intervenor who is the transferee of the debt of this case 1, 2, and 335,947,896 won converted at the exchange rate around 1992, and 2, 1,052, 291,41 won, and interest and delay damages thereon are liable to pay the succeeding intervenor's share of the debt of this case 1 and 2, as long as the succeeding intervenor who acquired the debt of this case 1 and 2, as seen above, satisfies the requirements for counterclaim for the assignment of claims against the defendant, who is a joint and several surety, as long as the succeeding intervenor who acquired the debt of this case 1 and 2, satisfies the requirements for counterclaim for the assignment of claims against the principal debtor. Thus, the succession participation of this case is legitimate).

3. Judgment on the defendants' assertion

A. The assertion that the two loans in this case are bonds for purchase of a bill of exchange

(1) Defendant Song Young-young, Kim Young-young, Kim Young-young, Kim Young-young, and Kim Young-young are claims arising out of the instant loan 2, not claims for loans, but claims for redemption by purchase of the instant bill of exchange. The purchase of the instant bill of exchange constitutes purchase of the instant bill of exchange in the form of a documentary credit (D/A). Since there is no evidence as to the existence and purchase of the instant bill of exchange, the instant claim is without merit. In addition, even if the claim arising out of the instant loan 2 is a loan claim, it is based on a quasi-loan that maintains its identity with the existing obligation, and thus, the said Defendants also have the right to refuse payment of the instant two loans from the succeeding intervenor until the instant bill of exchange was repaid.

(2) Facts of recognition

The following facts may be acknowledged according to the overall purport of Gap evidence 1 through Gap evidence 17, Gap evidence 38 through Gap evidence 46, Gap evidence 72-1 through 19, Gap evidence 73-1 and 73-2, Gap evidence 75 through Gap evidence 78, and the testimony and arguments of the above Kim Hero.

(A) Since December 28, 1978, the defendant company operated by the deceased Kim Tae-tae, the Chosun-si agreed to collect credit in succession to the above three events to prevent the bankruptcy of the above three companies. Since January 1, 1979, the above three events that concern that large amount of losses will inevitably be collected due to the impossibility of recovery of claims. The above three events agreed to collect credit in order to prevent the bankruptcy of the above three companies from occurring.

(B) Accordingly, on May 28, 1979, six banks entered into the first agreement to cooperate in improving the financial structure of the above three banks, and thereafter, on September 27, 1979, the second agreement was concluded on September 27, 1979. The contents of the agreement were to substitute the export support financial company of the above three banks with general financing loans as of August 31, 1979.

(C) Under the third agreement dated February 5, 1980 of the event, six parties agreed to pay US$ 21,00,000,000 due to transactions with Samsung as of the date of the second agreement, among the D/A balance purchased by six banks, until September 30, 1980. In addition, in the fourth agreement dated October 31, 1980, six parties agreed to suspend refund, joint loan, extension of due date, or repayment of interest for one year additionally from the date stipulated in the second agreement, and the agreement was reached, such as the repayment of loan and interest, which will occur within the present and next one year.

(D) Subsequent to the 16th agreement of February 22, 1992, the 16th agreement was reached between the six events with almost every year, providing the above 3 loans and suspending the repayment of credit and interest. In the 15th agreement on September 17, 1990, the said 3 companies agreed to postpone the repayment of credit and interest until September 25, 1992.

(E) Under the above agreement 16 times more than 16 times, the repayment of interest of the said 3 times has been postponed until September 25, 1992, and the principal was agreed to postpone the due date by substitution whenever each agreement is reached.

(F) At first, on December 23, 1977, Han Bank purchased a bill of exchange of USD 1,205,000 on September 2, 1978. On January 4, 1978, Han Bank purchased a bill of exchange of USD 42,980 on August 22, 1978. After that, on each of the above payment dates, it refused to pay each of the above bills of exchange on January 19, 198, the Han Bank requested to delay payment of USD 1,546,805 ($ 1,205,000 +42,980 -81,75 repaid) until September 30, 1980.

(G) During that period, as described in Paragraph 1-B(b) of the above, Hanil Bank entered into a bank transaction agreement with Samsung on July 11, 1980, and accordingly lent 1,052,291,441 won corresponding to USD 1,546,805 in the above unsettled bill of exchange as export bill loans to Sam Sejong, and the network Kim Tae and the defendant company jointly and severally guaranteed the obligations of the loans of this case against Samcheon Bank on the same day.

(3) Determination

As the above facts, six contracts were concluded on August 31, 1979 with a view to returning export support financial institutions and advances to general fund loans as of September 27, 1979, including sclified in the second agreement of September 27, 1979, and on shipbuilding YY, with a view to returning the loans to Korea Bank as of August 31, 1979. On July 11, 1980, after the second agreement, sclified new bank transaction agreements with a view to discharging all obligations arising from bill transactions such as bill loans and bill discount loans, and the subject was exported resource financing and received two loans from Korea Bank. In light of the fact that joint and several suretys of the two loans of this case were newly established, the defendants' new bonds were not converted to 1,546,805 loans in the form of the previous outstanding bill of exchange with the new bill of exchange with the new bill of exchange with the new bill of exchange with the new bill of exchange with no specific reasons.

(b) The assertion that the joint and several liability is exempted;

Around September 25, 1983, the defendant company agreed not to substitute for the debt of the defendant company any longer at the six events around September 25, 1983, and the defendant company was exempted from joint and several liability in the course of substitution for the debt of the 1,2 loans of this case thereafter. However, the above assertion is without merit, since there is no evidence to acknowledge it.

In addition, on January 15, 1983, Defendant Kim Young-hee, Kim Young-hee, Kim Young-ok, Kim Young-jin, Kim Young-jin, Kim Young-jin, Kim Young-jin, and the reasons for the two loans of this case were asserted to have been exempted from the above Defendants' joint and several liability for the two loans of this case by the replacement of the joint and several sureties from the deceased Kim Jong-si to Kim Young-gu, but there is no other evidence to prove otherwise, the above assertion is without merit.

C. The assertion that the debt of the instant joint and several sureties has been extinguished by substitution

The Defendants asserted that, even though the deceased Kim Jong-tae has jointly and severally guaranteed the debt of the instant 2 loans until the first due date, the defendant company also guaranteed the debt of the instant 1,2 loans by the first due date, there was no separate joint and several guarantee in the case of general loan loans by substitution each year after the first due date, and since the existing debt of the instant 1,2 loans by substitution has been repaid and extinguished by substitution, the Defendants’ joint and several liability for such debt has also ceased to exist, and there was no guarantee liability for the general loan newly incurred by substitution.

In light of the above legal nature of the repayment of the existing debt, unless there are special circumstances, the so-called substitution, which provides new loan only formally without receiving funds, constitutes a separate loan. However, the legal nature of the existing debt is merely an extension of the time limit for payment of the existing debt, and in such a case, it still remains liable for the guarantee of the existing debt unless there are special circumstances such as the agreement between the creditor and the guarantor to exempt the guarantee liability in advance (see Supreme Court Decisions 201Da7445, Oct. 11, 202; 97Da16077, Feb. 27, 1998; 94Da3445, Jun. 10, 1994; 97Da345, Jun. 10, 1994; 97Da345, Jun. 28, 197).

D. Claim for the completion of extinctive prescription

The Defendants asserted that the statute of limitations for commercial claims has expired after the lapse of five years from the date of the loan of this case, or the statute of limitations for commercial claims of this case 1 and 2 has expired due to the expiration of five years from the date of the loan of this case. The Defendants asserted that the statute of limitations for commercial claims of this case 1 and 2 have expired due to the delayed payment of interest from May 27, 1979, and as to the loan of this case 2 of this case from January 11, 1981 due to the delay of payment of interest from the loan of this case.

In addition, in addition, Defendant Song-young, Kim Young-young, Kim Young-young, Kim Young-chul, Kim Young-young, and Kim Young-young, the extension of the payment period without the consent of the heir of the property after the death of the deceased Kim Jong-tae, has no effect on the above Defendants, who are property successors, and therefore, they claim that the first and second loans in this case were extinguished by the expiration of the extinctive prescription period of commercial claims more than five years after the first due date of payment.

As seen earlier, the debt of the instant 1 and 2 was extended by September 25, 1992 while maintaining the identity by substitution, and the repayment period was extended by September 25, 192. The defendant company and the liability of joint and several liability for the debt of the instant 1 and 2 continues to exist, and such joint and several liability shall continue to exist without the above Defendants’ consent or separate joint and several liability as to the debt of the instant 1 and 2, which is the property heir of the deceased Kim-tae at the time of substitution. As such, the extinctive prescription of the debt of the instant 1 and 2, shall expire after the lapse of September 25, 1997. The lawsuit of this case was filed on September 25, 1997, which was before the expiration of the extinctive prescription, and the above assertion is without merit.

E. Claim for reimbursement

The defendants asserted that the loans of this case 1 and 2 are redeemed by purchase of a bill of exchange. The plaintiff does not have the original or copy of a bill of exchange, and thus the obligations of this case 1 and 2 were extinguished by repayment. However, there is no evidence to acknowledge this. Thus, the above assertion is without merit.

(f) argument that the probationary guarantee is not effective.

On July 11, 1980, the defendant Song-young, Kim Young-young, Kim Young-young, Kim Young-dong, and Kim Young-young guaranteed to the Han-si Bank all of the obligations arising from a transaction of bills, such as a bill loan, bill discount loan, etc., currently and in the future, within the limit of 3 billion won, and thereafter died on April 9, 1982, and thereafter on July 31, 1984; and thereafter on September 28, 1984; and on September 25, 1990; and on February 24, 1992, the above Defendants asserted that the above Defendants are not liable for the obligations of the loans of this case 2. However, as seen earlier, the loan of this case 2 was deceased on July 1, 1981.

G. The assertion that Article 1026 subparag. 2 of the Civil Act prior to the amendment has lost its effect

The reasons for this part are the same as the reasons for the judgment of the court of first instance under Article 420 of the Civil Procedure Act, because they are the same as the reasons for the judgment of the court of first instance.

4. Conclusion

그렇다면, 승계참가인에게, 피고회사는 조선견직, 김영주, 삼화와 연대하여 이 사건 1,2 대출금 합계 1,388,239,337원(335,947,896원 + 1,052,291,441원) 및 그 중 이 사건 1 대출금 335,947,896원에 대하여는 이자지급이 지체된 1979. 5. 27.부터 1980. 12. 9.까지는 연 19%, 그 다음날부터, 이 사건 2 대출금 1,052,291,441원에 대하여는 이자지급이 지체된 1981. 1. 11.부터 각 1981. 11. 8.까지는 연 20%, 그 다음날부터 1981. 11. 29.까지는 연 19%, 그 다음날부터 1981. 12. 28.까지는 연 18%, 그 다음날부터 1982. 1. 13.까지는 연 17%, 그 다음날부터 1982. 3. 28.까지는 연 16%, 그 다음날부터 1982. 6. 27.까지는 연 14%, 그 다음날부터 1984. 1. 22.까지는 연 10%, 그 다음날부터 1984. 11. 4.까지는 연 10.5%, 그 다음날부터 1987. 9. 25.까지는 연 11.5%, 그 다음날부터 1988. 12. 4.까지는 연 12%, 그 다음날부터 1989. 11. 14.까지는 연 13.5%, 그 다음날부터 1992. 1. 9.까지는 연 12.5%, 그 다음날부터 1992. 9. 25.까지는 연 13.5%의 각 비율에 의한 이자를, 그 다음날부터 1993. 1. 28.까지는 연 21%, 그 다음날부터 1993. 3. 29.까지는 연 20%, 그 다음날부터 1995. 4. 5.까지는 연 17%, 그 다음날부터 1997. 12. 21.까지는 연 18%, 그 다음날부터 1998. 3. 1.까지는 연 21%, 그 다음날부터 1998. 10. 18.까지는 연 25%, 그 다음날부터 1999. 1. 24.까지는 연 20%, 그 다음날부터 2003. 5. 31.까지는 승계참가인이 구하는 바에 따라 민법에서 정한 연 5%, 그 다음날부터 갚는 날까지는 개정된 소송촉진등에관한특례법(2003. 5. 10. 법률 제6868호로 개정된 것)에서 정한 연 20%의 각 비율에 의한 지연손해금을 지급하고, 피고회사, 조선견직, 김영주, 삼화와 연대하여 별지 상속지분표 기재 상속지분에 따라 이 사건 2 대출금 1,052,291,441원 중 피고 송혜영은 143,494,287원(1,052,291,441원 X 18/132, 원미만은 버림, 이하 같음), 피고 김영희, 김영옥, 김영숙은 각 23,915,714원(1,052,291,441원 X 3/132), 피고 김영우, 김영대, 김영진, 김영철, 김영찬, 김영선은 각 95,662,858원(1,052,291,441원 X 12/132), 피고 이유찬, 이유미는 각 7,971,904원(1,052,291,441원 X 1/132) 및 각 이에 대하여 이자지급이 지체된 1981. 1. 11.부터 1981. 11. 8.까지는 연 20%, 그 다음날부터 1981. 11. 29.까지는 연 19%, 그 다음날부터 1981. 12. 28.까지는 연 18%, 그 다음날부터 1982. 1. 13.까지는 연 17%, 그 다음날부터 1982. 3. 28.까지는 연 16%, 그 다음날부터 1982. 6. 27.까지는 연 14%, 그 다음날부터 1984. 1. 22.까지는 연 10%, 그 다음날부터 1984. 11. 4.까지는 연 10.5%, 그 다음날부터 1987. 9. 25.까지는 연 11.5%, 그 다음날부터 1988. 12. 4.까지는 연 12%, 그 다음날부터 1989. 11. 14.까지는 연 13.5%, 그 다음날부터 1992. 1. 9.까지는 연 12.5%, 그 다음날부터 1992. 9. 25.까지는 연 13.5%의 각 비율에 의한 이자를, 그 다음날부터 1993. 1. 28.까지는 연 21%, 그 다음날부터 1993. 3. 29.까지는 연 20%, 그 다음날부터 1995. 4. 5.까지는 연 17%, 그 다음날부터 1997. 12. 21.까지는 연 18%, 그 다음날부터 1998. 3. 1.까지는 연 21%, 그 다음날부터 1998. 10. 18.까지는 연 25%, 그 다음날부터 1999. 1. 24.까지는 연 20%, 그 다음날부터 2003. 5. 31.까지는 연 5%, 그 다음날부터 갚는 날까지는 연 20%의 각 비율에 의한 지연손해금을 지급할 의무가 있으므로, 이와 결론을 달리한 제1심 판결 중 피고들에 대한 부분은 부당하므로 이를 취소하고, 원고의 피고들에 대한 청구를 모두 기각하며, 피고들에 대하여 승계참가인에게 위 각 돈을 지급할 것을 명하기로 하여 주문과 같이 판결한다.

[Attachment]

Judges Park Jong-dae (Presiding Judge)