2012Da116802 Claims

Credit Guarantee Fund

Slime Electricity Co., Ltd.

Seoul Central District Court Decision 2012Na28065 Decided November 15, 2012

July 22, 2016

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Article 530-9(1) of the former Commercial Act (amended by Act No. 13523, Dec. 1, 2015; hereinafter the same) provides that “A company established by division or merger after division or a company surviving the division is jointly and severally liable for the obligations of the company before the division or merger after division or merger after division.” The term “liability of the company prior to the division or merger after division” refers to not only the obligations arising before the division or merger after division or merger after division, but also the obligations arising before the division or the merger after division or merger takes effect but also the obligations arising out of the legal relationship which has already been established (see Supreme Court Decision 2010Da71660, Dec. 23, 2010).

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following:

27. The plaintiff entered into a credit guarantee agreement (hereinafter referred to as the "first credit guarantee agreement") under the above credit guarantee agreement with the Go sub-gu Co., Ltd. (hereinafter referred to as the "Seoul sub-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-re-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-i-i-i-i-i-i-i

10. 17. The high-line theory and the guaranteed amount of KRW 85 million on October 17, 2008 and the guarantee period from October 17, 2008 to October 2009.

16. The fact that a credit guarantee agreement up to the time limit (hereinafter referred to as the "second credit guarantee agreement") was re-established and the previous credit guarantee agreement was recovered; 4. The high-line theory as a security was settled with the loan extended from a national bank on October 27, 2008 by 10 million won on October 26, 2009 (the subject of the loan is the same as the previous loan, and the principal of the loan is identical to the previous amount of the previous loan); 5. Even after the extension of the time limit and guarantee period after the extension of time limit for the loan extended, the Plaintiff subrogated the loan to 85, 424, 417 won on February 23, 201, 6. Meanwhile, the high-line theory was merged with the Defendant by dividing the electrical construction on September 30, 2008, which was the second credit guarantee agreement.

Examining the aforementioned facts in light of the record, including the process of concluding the first and the second credit guarantee agreement and the content of the relevant loan agreement, the second credit guarantee agreement is formally separate from the first credit guarantee agreement, but, in substance, it is deemed that the term of credit extension of the principal obligation was substantially extended by means of exchange for the principal obligation. Therefore, it is reasonable to deem that the legal relationship which forms the basis of establishing the principal obligation of indemnity of this case had already occurred prior to the merger by split-off under the first credit guarantee agreement and the loan agreement secured therefor. Therefore, even if the instant indemnity liability was incurred under the credit guarantee agreement concluded after the split-off, it is reasonable to interpret that the relevant indemnity liability of this case is included in the “company obligation prior to a split-merger under Article 530-9(1) of the former Commercial Act” in light of the legal principles as seen earlier. In the Plaintiff’s credit guarantee agreement does not allow the extension of the term of credit extension of the principal obligation by means of exchange for the principal obligation, it does not change the term of credit guarantee.

3. Nevertheless, the court below rejected the Plaintiff’s assertion that the first credit guarantee agreement cannot be a legal relationship which serves as the basis for establishing the obligation for indemnity of this case, solely on the grounds as indicated in its reasoning, such as the content of the exemption clause of this case, and thus, constitutes “company obligations before the merger after division and merger.” Thus, the court below erred by misapprehending the legal principles on the interpretation of the exemption clause or the liability of the company after the merger after division and merger, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young

Justices Lee In-bok et al.

Justices Lee Dong-won