(영문) 서울고등법원 2015.6.19.선고 2015나1286 판결

Attorney Kim Man-man, Justice Kim Hong-tae, the highest promotion, the number of motioned vehicles, Park Jin-jin, White-gu, the creation rules, and red stone.

The first instance judgment

Seoul Central District Court Decision 2014Gahap10439 Decided November 20, 2014

Conclusion of Pleadings

June 3, 2015

Imposition of Judgment

June 19, 2015

Text

1. The judgment of the court of first instance is modified as follows.

A. On January 22, 2014, the part concerning rehabilitation claims in the final claim inspection judgment of Seoul Central District Court No. 2012 dated January 22, 2014 is modified as follows:

The plaintiff's rehabilitation claims against D are 20, 278, 633, and 400 won.

B. The plaintiff's remaining claims are dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

On January 22, 2014, the Seoul Central District Court changed the final claim inspection decision No. 2012 Ma4343 on rehabilitation claims No. 2012 as follows. The rehabilitation claims against the Plaintiff’s debtor corporation B are 25,520, 165, and 397 won.

2. Purport of appeal

Among the judgment of the first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

Reasons

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap evidence 1 through 6, and Eul evidence 1 through 10:

A. Conclusion of the instant business agreement and loan agreement

1) On March 26, 2008, F Co., Ltd. (hereinafter referred to as “F”) entered into a business agreement with G Co., Ltd. (hereinafter referred to as “G”) to carry out the new construction project of G H H-based multi-family housing (hereinafter referred to as “instant project”) with G as the implementer, G as the contractor, and G as the contractor.

2) On March 26, 2008, F entered into a loan agreement with the Plaintiff, etc. to obtain a loan of KRW 51,00,000,000 from the Plaintiff, etc. (hereinafter “the instant loan”) and at the time G jointly and severally guaranteed the instant loan obligations.

B. J’s acceptance, etc. of the instant business rights

1) On June 24, 2010, J Co., Ltd. (hereinafter referred to as “J”), F, G, and Plaintiff et al. entered into an agreement on the transfer of the instant loan obligations against F to the Plaintiff et al. at the same time with F’s transfer from F of the status of the executor of the instant project.

2) Accordingly, J, F, G, Plaintiff et al. concluded the first modified agreement on the instant business agreement and the instant loan agreement by modifying the terms and conditions of the instant loan agreement.

3) G acquires from F on June 24, 2010 the total number of shares issued by J 30,000 from F, thereby becoming a single shareholder of J.

C. Conclusion, etc. of the instant funding supplement agreement

1) On September 30, 2010, in a situation where the F is more worse and the project of this case is unable to be properly carried out due to its aggravation, NJ, G, and Plaintiff et al. entered into the second amendment agreement on the instant business agreement and loan agreement with the K corporation entrusted by J, except in the instant business agreement and the instant loan agreement, with the aim of securing the smooth progress of the project of this case and the repayment ability of loans.

2) Accordingly, J and B (hereinafter referred to as “B”), and the Plaintiff et al. entered into a funding arrangement (hereinafter referred to as “the instant funding arrangement”) with the following content on September 30, 2010.

Article 1 of the Fund Supplementary Agreement refers to the obligation of J to provide funds to J by means of subordinated loans, etc. in accordance with the instant Fund Supplementary Agreement. Article 2 (1) B of the Fund Supplementary Agreement provides funds to the J under the following terms: (2) If the Plaintiff considers that the financial resources such as the principal and interest of the Fund, and the financial expenses are insufficient, it would seriously affect the progress of the instant project, the Fund should be provided to the J; (2) the Fund should be suspended from the instant project, or (3) the Fund should be paid to the Plaintiff by means of liquidation or bankruptcy, etc. (including the case where it is deemed that the Plaintiff entered the procedures similar thereto); (3) the Fund should be paid within the said period from the date on which the Plaintiff is given consent to the repayment of the Fund; and (4) the Fund should be given within the said period from the date on which the Plaintiff is given to the Plaintiff’s repayment of the Fund; and (4) the Fund should be given to the Plaintiff’s repayment of the Fund.

3) After the conclusion of the instant monetary supplement agreement, J and G, and the Plaintiff et al. concluded the instant business agreement and the instant loan agreement on September 28, 201, and March 28, 2012, and extended the maturity of the existing loan obligations by entering into the fourth and fourth modified contract on March 28, 2012.

4) At the time of the conclusion of the instant loan agreement and the modified contract, the Plaintiff agreed to respectively conclude a joint and several surety agreement, a management-type land trust agreement, a real estate trust agreement, a security trust agreement, a contract to pledge deposit, a contract to pledge deposit, a contract to pledge ownership of stocks, a security for transfer, a real estate security and a disposal trust agreement for an unsold building, in addition to the instant loan agreement and the supplement agreement.

D. Termination, etc. of the final claim inspection judgment of this case

1) On September 26, 2012, B entered into an application for commencement of rehabilitation procedures as Seoul Central District Court 2012 Gohap185, and the same court rendered a decision on October 11, 2012 (hereinafter “instant rehabilitation procedure”) and upon the decision on non-election of a custodian, B’s representative director C became a legal custodian under Article 74(4) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”).

2) During the instant rehabilitation procedure, J did not report the claim regarding the instant monetary supplement agreement as a rehabilitation claim. According to the L Accounting Corporation’s investigation report, an inspection agency for the instant rehabilitation procedure, the J lost the ability to repay the debt amounting to KRW 35,235,00,000,000, and KRW 74,881,000, and the debt amounting to KRW 780,000, and capital amounting to KRW 39,646,000, and KRW 00.

3) In the instant rehabilitation procedure, the Plaintiff filed a report on the instant amount of KRW 22,415,218,981 as rehabilitation security right, including the remaining principal amount of the instant loan obligations under the instant funding supplement agreement, KRW 20,00,00, KRW 215, 218, and KRW 981. However, the legal manager in B filed a report on the instant amount of the said loan obligations under Article 21-4 (1) 2 (a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25503, Jul. 21, 2014; hereinafter referred to as the “former Enforcement Decree of the Fair Trade Act”), stating that the instant funding agreement constitutes an act of denying the entire amount of obligations to a company affiliated with an enterprise group subject to limitations on debt guarantee under Article 21-4 (1) 2 (a) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 1234, Jan. 24, 2014).

Accordingly, the plaintiff applied for the final inspection judgment of the rehabilitation claim as Seoul Central District Court 2012 Ma4343.

4) On December 19, 2013, the Seoul Central District Court: (a) newly established D, a rehabilitation company, by dividing B into part, on December 19, 2013 (hereinafter “D”); (b) decided to authorize the amendment of the rehabilitation plan regarding B, including the aforementioned judgment in claim allowance proceedings and related rights and obligations related thereto, including the right and obligations related thereto, and (c) the transfer of B to D; and (d) appointed Defendant B as the custodian on December 24, 2013. Accordingly, it was partially divided D on December 26, 2013. The said judgment in claim allowance proceedings and the rights and obligations under the instant funding agreement were transferred to D.

5) The Defendant took over the aforementioned final claim inspection procedure conducted by C. The Plaintiff applied for the said final claim inspection procedure to the effect that the Plaintiff is 22, 200, 00, 00 and interest 215, 218, 981 won and interest 22, 415, 218, 218, 981 won and interest 104, 52, 520, 165, 397 won and interest 40 won and 30 won and interest 40 won and 84 won and 40 won and 30 won and 40 won and 30 won and 40 won and 198 won and 40 won and 40 won and 40 won and , but the Seoul Central District Court recognizes only the Plaintiff’s rehabilitation claim as 20, 200, 2015 and 208 won and 4, respectively.

2. Parties’ assertion

A. Summary of the plaintiff's assertion

1) In the event that the instant funding arrangement does not intend to receive the instant funding to be paid by the J, or where the suspension of the instant funding is determined to become final and conclusive, or where the J’s legal personality is extinguished or substantially discontinued, etc., it is an agreement that, according to the Plaintiff’s intent, B would directly pay the Plaintiff the instant funding to perform the obligations of the guarantor by directly paying the supplementary financing. In fact, the J did not report the claim regarding the instant funding funding arrangement in the rehabilitation procedure against B, and it clearly expresses that it does not mean that the said claim is not to be exercised. Moreover, the J does not have the ability to pay the Plaintiff the instant financing obligation, and thus, it should be deemed that the instant funding claim based on the instant funding arrangement belongs to the Plaintiff.

2) Even if the J, not the Plaintiff, has the right to the reimbursement of the funds under the instant monetary supplement agreement against B, the Plaintiff, a creditor of the J, can exercise the right to the reimbursement of the funds against B by subrogation of the J.

3) Since the Plaintiff is a party to the instant monetary supplement agreement, the Plaintiff is entitled to claim compensation against B for damages incurred by the Plaintiff due to the Plaintiff’s failure to perform his/her duty to supplement funds under the instant monetary supplement agreement.

B. Summary of the defendant's assertion

1) The instant funding supplement agreement is null and void as it constitutes an evasion of the law of debt guarantee prohibited under Articles 15 and 10-2(1) of the former Monopoly Regulation and Fair Trade Act, and Article 21-4(1)2(a) of the former Enforcement Decree of the Fair Trade Act. Even if the instant funding supplement agreement is valid, the obligee pursuant to the instant funding supplement agreement is not the J but the Plaintiff is not the Plaintiff, and thus, the Plaintiff may not claim reimbursement of the Plaintiff directly against B.

2) Even until the completion of the examination of the rehabilitation claim in this case, the Plaintiff did not express his/her intention to exercise the right of subrogation for the claim against J in relation to B. Moreover, the J did not report the right to supplement the funds to B as the rehabilitation claim, and as the rehabilitation plan against B was approved on February 22, 2013, the claim against J in relation to B was forfeited.

3) As long as the right to receive the supplementary fund under the instant funding supplement agreement is in the J, it is not the Plaintiff that the Plaintiff suffered damage due to the failure of B to perform the obligation to supplement the funds under the instant funding supplement agreement. Therefore, the Plaintiff, who is not the other party to the instant funding supplement, may not have the damage claim due to nonperformance.

4) Even if the Plaintiff’s damage claim is recognized, the amount of damage shall be calculated according to the specific damages actually incurred by the Plaintiff, not equivalent to the amount of the supplementary fund under the instant funding agreement, and shall be reduced according to the doctrine of comparative negligence or limitation of liability.

3. Determination

A. Whether the instant monetary supplement agreement is invalid as an evasion of the law under the Fair Trade Act

1) Relevant statutes

(1) Where a company (excluding companies engaged in financial business or insurance business; hereinafter the same shall apply) belonging to an enterprise group designated under paragraph (1) of Article 14 because it falls under the standards prescribed by the Presidential Decree, such as total assets, etc. (1) and (2) of the former Monopoly Regulation and Fair Trade Act; hereinafter referred to as the "enterprise group subject to limitations on debt guarantees" in paragraph (1) of the same Article, it shall not provide debt guarantees to its affiliated companies in Korea. (2) The term " debt guarantees" in paragraph (1) means the guarantee that the company belonging to an affiliated company of the same subparagraph violates Article 10-2 (1) through (2) of the former Enforcement Decree, such as the prohibition on the disclosure of any of the following corrective measures against its affiliated companies under Article 10-2 (2) of the Act, or the prohibition on the establishment of an affiliated company of Article 15 (1) through (2) of the former Act, such as the restriction on investment guarantees by the Korea Development Bank, the Export-Import Bank of Korea, and the Bank;

2) Determination

The facts that B and its affiliates belong to an enterprise group subject to the prohibition of debt guarantee under Article 10-2 (1) of the former Monopoly Regulation and Fair Trade Act and the Plaintiff constitutes a domestic financial institution subject to the prohibition of debt guarantee under Article 10-2 (2) of the former Monopoly Regulation and Fair Trade Act are not disputed between the parties, and that G is the joint and several debt guarantee of the loan obligations of J as the starting corporation of the instant business, and that B agreed to deposit the shortage funds into the account designated by the Plaintiff in the event that the Plaintiff is unable to repay the loan obligations of this case in the instant funding supplement agreement. The instant funding supplement agreement provides for B’s duty to supplement the funds, but does not contain any content that discharges B’s joint and several debt guarantee obligations for the instant loan obligations. Thus, the instant funding agreement constitutes an evasion of the law of Article 15(1) and Article 10-2(1)4(a) of the former Fair Trade Act and Article 10-2(1) of the former Enforcement Decree of the Fair Trade Act.

3) Whether the instant funding supplement agreement is null and void

The legislative purpose of Article 10-2 and Article 15 of the former Monopoly Regulation and Fair Trade Act is to prevent excessive concentration of economic power and promote fair and free competition, thereby promoting the balanced development of the national economy by prohibiting the performance of debt guarantee between domestic affiliated companies belonging to the same enterprise group larger than a certain size and to evade the prohibition provision (hereinafter referred to as " debt guarantee, etc."), and it does not directly intervene in the judicial legal relationship surrounding debt guarantee, etc. directly aim at resolving the imbalance between payment and consideration. (2) If the legal effect of debt guarantee, etc. for affiliated companies is regarded as null and void, the enterpriser acquires profits arising from the above act, etc. and fails to perform the guaranteed obligation, thereby causing damage to the other party to the transaction. (3) Thus, Article 16 (1) 5 of the former Fair Trade Act and Article 16 (1) 5 of the former Fair Trade Act are not effective in light of the purport of Article 10 of the former Monopoly Regulation and Fair Trade Act, and Article 5 of the former Fair Trade Act are still invalid.

B. Whether the funds supplement agreement of this case has the character as a debt guarantee or debt acceptance for the loan obligation of this case

In light of the following circumstances, which are acknowledged in full view of the purport of the oral argument in the above facts, i.e., (i) where B lends funds to J subordinate to the Plaintiff pursuant to the Fund Supplementary Agreement, i.e., (ii) where B extended funds to the Plaintiff, as the Plaintiff’s assertion, it is deemed that B guaranteed or assumed the Plaintiff’s obligation to the Plaintiff, the Plaintiff would be entitled to indemnity against J upon the Plaintiff’s repayment of the loan obligation, and as B would be entitled to indemnity against the Plaintiff, the Plaintiff would be legally entitled to legally separate rights and assume the obligation. Therefore, in order for B to directly pay the Plaintiff’s obligation to the Plaintiff, there is a clear ground provision in the Fund Supplementary Agreement, and (ii) in the Fund Supplementary Agreement, B is obliged to lend funds to subordinate to the repayment of the principal and interest of the Plaintiff, and there is no explicit provision or guarantee that B extended loans to the Plaintiff, and there is no evidence that the Fund Supplementary Agreement is groundless for the Plaintiff’s direct acceptance or guarantee against the Plaintiff.

C. Whether B is obligated to pay the Plaintiff the supplementary fund directly

On the other hand, under the agreement to supplement the funds of this case, the plaintiff can decide whether to supplement the funds regardless of the intention of the J to supplement the funds, and claim for the supplement of funds to B, and also can designate the account to pay the funds. The fact that B and J agreed that the amount of the funds supplement is required not to pay the funds necessary for the project of this case, but to pay the loans of this case, and that they did not raise an objection.

However, in light of the following circumstances recognized as a whole and the purport of the entire pleadings, namely, (i) the duty to supplement funds specified in the instant monetary supplement agreement is merely the obligation to lend funds to J and not the obligation to the Plaintiff, and (ii) the instant monetary supplement agreement provides that the Plaintiff shall comply with the Plaintiff’s intent to perform the duty to supplement funds to the J, and it is difficult to interpret that the Plaintiff is an agreement to directly pay the supplementary funds to the Plaintiff in the event that the Plaintiff considers that it is practically unreasonable to receive the supplementary funds. In light of the above, it is difficult to view that the Plaintiff is in the status of the beneficiary who has a direct right to claim the payment of the supplementary funds to the Plaintiff. Accordingly, the Plaintiff’s aforementioned assertion is groundless.

D. Whether the plaintiff can exercise his right to supplement funds on behalf of J

In light of the following circumstances, as seen earlier, the fact that the court did not report the claim regarding the instant monetary supplement agreement as a rehabilitation claim in the instant rehabilitation procedure, and that the Plaintiff’s claim against J against B was forfeited as the rehabilitation plan was approved on February 22, 2013, and that the Plaintiff did not express its intention to exercise the claim against B by October 10, 2013, which is the date of the completion of the examination of the instant rehabilitation claim in claim allowance proceedings, the Plaintiff cannot exercise the Plaintiff’s claim by subrogation against the forfeited J’s claim against B, which was already forfeited. Accordingly, the Plaintiff’s assertion is without merit.

E. The existence of damages claim due to nonperformance of the monetary supplement agreement of this case

In light of the following circumstances, which are acknowledged by comprehensively taking into account the purport of the entire argument in the instant monetary supplement agreement, i.e., ① the repayment of the funds under the instant monetary supplement agreement by means of lending the funds required by J, but the J bears the obligation to compensate the funds at the Plaintiff’s request, not J in the event that the funds are insufficient to repay the loans of this case. ② The supplementary funds paid by B are deposited into the Plaintiff’s designated account and used only for the repayment of the loans of this case, and the effect of obtaining an exclusive satisfaction of the loans of this case is that the Plaintiff et al. obtain an exclusive satisfaction of the loans of this case by paying the loans of this case. ③ As such, it appears that the purpose of the instant monetary supplement agreement is the Plaintiff, the party to the instant monetary supplement agreement, and the Plaintiff’s damage liability arising from the nonperformance of the obligation under the instant monetary supplement agreement (hereinafter “damage liability”) is not recognized separately in accordance with the contents of the instant monetary supplement agreement.

Therefore, the plaintiff is in the position of the creditor who can claim damages against B by asserting and proving the damages incurred due to the failure of B to perform the duty to supplement funds.

(f) The scope of rehabilitation claims recognized;

1) Scope of damage claim

The facts of the instant loan amounting to 51,00,00,000 are as seen earlier. Considering the overall purport of the pleadings as to the evidence No. 1 and No. 6, even if the Plaintiff claimed to B on October 9, 2012 for the performance of the obligation to supplement funds under the instant funding agreement, B failed to perform it. At the time of the commencement of the instant rehabilitation procedure, the remaining principal and interest of the instant loan amounting to KRW 22,415,218,981 (principal amounting to KRW 22,200,00,000 + interest amounting to KRW 215,218,981) and KRW 218,251,981, the Plaintiff sustained the remainder of the instant loan amount at the time of the commencement of the rehabilitation procedure.

Therefore, the Plaintiff has the damage claim of KRW 22, 415, 218, and 981 against D who succeeded to B’s rights and obligations under the instant funding supplement agreement.

2) Whether comparative negligence or limitation of liability exists

The defendant asserts that the plaintiff's damage compensation claim should be considerably reduced in accordance with the principle of comparative negligence or limitation of liability, in light of the fact that the plaintiff's damage compensation claim should be reduced considerably in accordance with the legal principles of comparative negligence or limitation of liability because the plaintiff's damage compensation claim should be reduced considerably in light of the fact that the plaintiff's damage compensation claim should be reduced considerably in accordance with the following, such as the plaintiff's damage compensation claim, as the plaintiff's damage compensation claim is forced to accept the plaintiff's request for the normalization of the business of G, which is only the parent company of G, a corporation, and the plaintiff's non-performance of the business in the early stage of the implementation of the business in this case, under the circumstance that the risk of failure was predicted due to the failure of the business in the business in the beginning of the project in this case had already been predicted.

In the event that the obligor is liable for damages due to nonperformance against the obligee, if there is any negligence on the obligee or it is necessary to ensure fairness in the burden of damages (see Supreme Court Decision 2007Da37721, May 15, 2008, etc.).

First of all, as seen earlier, the instant funding arrangement constitutes an evasion of the law under the Fair Trade Act. However, unless there is any evidence to deem that the evasion of the law constitutes the Plaintiff’s negligence or constitutes an evasion of the law, it cannot be deemed that the Plaintiff was negligent in the failure to perform the duty to supplement funds, and there is no evidence to support that the instant rehabilitation procedure was commenced by the Plaintiff as alleged by the Defendant.

However, as seen earlier, the obligor’s liability may be limited to not only where there is any negligence on the part of the obligee, but also where it is deemed necessary to ensure the fairness of the burden of damages. In light of the following circumstances, it is reasonable to limit B’s liability for damages to 90% of the amount of damages in light of the ideology of the damage compensation system, which is fair in the fair burden of damages, if the above acknowledged facts, Gap’s evidence No. 13, Eul evidence No. 14, Eul evidence No. 14, Eul evidence No. 15, Eul evidence No. 15, and Eul evidence No. 18, or are presumed as a whole by considering the following circumstances.

A) As seen earlier, in addition to the instant loan supplement agreement, the Plaintiff was provided with various security that could guarantee the repayment of the instant loan obligation by J pursuant to the instant loan agreement, etc., and the Plaintiff was actually paid KRW 272, 941,371 as a result of the execution of partial security.

B) According to the instant funding supplement agreement, B bears the obligation to provide funds to J according to the Plaintiff’s judgment, and the funds are deposited into the account designated by the Plaintiff. The supplementary funds are used only to repay the principal and interest of the Plaintiff, etc. of the loan and the financial expenses. On the other hand, B cannot exercise the right to demand reimbursement or demand security, etc. to J, the actual borrower of the instant loan agreement, and G, the joint guarantor, until the Plaintiff, etc. is repaid the full amount of loans.

C) On October 11, 2012, B bears the obligation related to the filling of funds of approximately KRW 760,432,00,000, including the instant damages liability at the time, including the instant damages liability, and as at the time, Section B seems to have a significant impact on B’s financial failure.

D) As seen earlier, the instant monetary supplement agreement constitutes an evasion of the law of debt guarantee prohibited by the Fair Trade Act, and such circumstances were well known to the Plaintiff, and B entered into the instant monetary supplement agreement without any special consideration for the purpose of enhancing the credibility of G and J, affiliated companies, and J.

3) Sub-decisions

Therefore, the damage claim of this case against D who succeeded to B’s rights and obligations under the instant funding supplement agreement is recognized within the scope of KRW 20, 173, 697,082 ( = 22, 415, 218, 981 ¡¿ 90% x 90% x less than won).

4. Conclusion

Therefore, the plaintiff's rehabilitation claim against the defendant exists within the scope of KRW 20, 278, 633, and 400, the sum of KRW 104, 936, 318, and the damage claim 20, 173, 697, and 082, which have been already recognized in the judgment of claim allowance proceedings of this case. Thus, the plaintiff's claim of this case of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed due to the ground for the above recognition. Since the judgment of the court of first instance is unfair with some different conclusions, it shall be accepted partially by the defendant's appeal, and the judgment of the court of first instance shall be modified as above. It is so decided as per Disposition.