[1] In case where a reorganization creditor or security holder takes over new stocks in lieu of satisfaction pursuant to the reorganization program, whether the guaranteed obligation is extinguished (affirmative)

[2] In a case where an agreement different from the contents of the disposal document is acknowledged, whether the probative value of the disposal document and the principle of free evaluation of evidence is applied (affirmative)

[3] In a case where several persons are liable for performance in full, if the company reorganization procedure commences for one person, and the creditor exercises his/her right as a reorganization creditor with respect to the total amount of the claim, and there is a subrogation for part of the claim, whether the person who has subrogated for the performance may exercise his/her right as a reorganization creditor together with the creditor in proportion to the amount he/she performed (negative)

[4] The case holding that where a reorganization creditor prepares a contract for the transfer of claim in the course of a partial repayment of a guarantee obligation from a guarantor of the reorganization company, it is limited to the case where the reorganization creditor takes full repayment of the reorganization claim in the future, and it does not mean that he can exercise a right to preferential payment concerning the reorganization claim against the guarantor, or exercise a right to exercise a right to reorganization claim in the course of giving preferential payment concerning the reorganization claim to the guarantor, or in division

[1] In a case where it is decided to substitute a reorganization claim or security in whole or in part due to the conversion of investment by the method of issuing new stocks under the reorganization plan, the principal obligation of the reorganization company with respect to the amount equivalent to the market price of the new stocks which the reorganization creditor or security holder acquired at the time of the entry into force of the issuance of new stocks shall be deemed to have actually been satisfied, and the guaranteed

[2] As long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the declaration of intent according to the contents of the document unless there is any reflective proof, and shall not reject it without reasonable explanation. However, even if a disposal document is a disposal document, if there is an express or implied agreement different from the contents of the document, it may recognize facts different from the contents of the statement, and in interpreting the legal act of the originator, it may be decided freely as evidence to the extent that it does not violate the rules of experience and logical rules.

[3] In the event that several persons are liable for performance in full, if the company reorganization procedure commences for one person, and the creditor exercises his right as a reorganization creditor with respect to the total amount of the claim, and there is a subrogation for a part of the claim, only the creditor may exercise his right as a reorganization creditor with respect to the total amount of the claim held at the time of the commencement of reorganization procedure, and it shall not be deemed that the person who made a subrogation for a part of the claim exercises his right as a reorganization creditor in proportion to

[4] The case holding that where a reorganization creditor prepares a contract for the transfer of claim when he receives a partial repayment of a guarantee obligation from a guarantor of the reorganization company, it is limited to the fact that the contract for the transfer of claim is prepared in the sense that in the event that a complete repayment of a reorganization claim in the future has been made, the guarantor may exercise his claim in lieu of the reorganization creditor, and it does not mean that he may give a preferential right to payment in regard to the reorganization claim to the guarantor,

[1] Article 240 (2) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 250 (2) of the Debtor Rehabilitation and Bankruptcy Act), Article 254 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 265 of the Debtor Rehabilitation and Bankruptcy Act) / [2] Article 10 of the Civil Act, Article 202 of the Civil Procedure Act / [3] Article 110 of the former Company Reorganization Act (repealed by Article 26 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), Article 126 of the former Company Reorganization Act (see current Article 128 (1) of the Debtor Rehabilitation and Bankruptcy Act), Article 105 of the Debtor Reorganization and Bankruptcy Act

[1] Supreme Court Decision 2002Da12703, 12710, Jan. 10, 2003 (Gong2003Sang, 612), Supreme Court Decision 2004Da27143, Jan. 27, 2005 (Gong2005Sang, 308) / [2] Supreme Court Decision 88Da12506, Dec. 28, 1989 (Gong198, 1458), Supreme Court Decision 91Da8418, Jul. 12, 1991 (Gong1991, 2152), Supreme Court Decision 93Da32514, May 24, 1994 (Gong194, 305Da19639, Apr. 16, 195) / [296Da19659, Apr. 16, 1995)

Han Bank, Inc.

Korea Deposit Insurance Corporation (Law Firm Spah, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na60791 Delivered on May 19, 2005

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In a case where the reorganization program provides a substitute for the repayment of all or part of the reorganization claims or securities through a conversion of investment that issues new stocks in the form of issuing the reorganization program, it shall be deemed that the principal obligation of the reorganization company is substantially satisfied with respect to the amount equivalent to the market price of new stocks acquired by the reorganization creditors or security holders at the time when the issuance of new stocks takes effect, and the guaranteed obligation shall also be deemed extinguished (see Supreme Court Decision 2004Da27143, Jan. 27, 2005,

In the same purport, the court below determined that the Defendant’s payment of dividends of KRW 1,653,50,296 to the Plaintiff bank is a partial repayment of the guaranteed obligation, on the ground that the Defendant’s guaranteed obligation to the Plaintiff bank is extinguished only within the scope of KRW 724,80,00,000, which is equivalent to the market price as at the time of the effective date of each of the above-mentioned shares of the reorganization company’s international stocks acquired by the Plaintiff bank, and the remainder of KRW 2,275,200,00 is remaining. Accordingly, it is justifiable to acknowledge and determine that the Defendant’s payment of dividends of KRW 1,653,550,296 to the Plaintiff bank constitutes a part of the guaranteed obligation. The court below did not err in the misapprehension of legal principles as to the debt-to-equity swap of the reorganization claim, omission of judgment, etc

2. Regarding ground of appeal No. 2

As long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the expression of intent in accordance with the content of the document unless there is any reflective proof, and shall not reject it without reasonable explanation. However, even in the case of a disposal document, if there is an express or implied agreement different from the content of the document, it may recognize facts different from the content of the document, and in interpreting the legal act of the originator, it may be freely determined as a documentary evidence insofar as it does not violate the empirical and logical rules (see, e.g., Supreme Court Decisions 91Da8418, Jul. 12, 1991; 95Da45125, Apr. 12, 1996).

According to the records, it is recognized that the Plaintiff received the dividends of this case from the Defendant as a partial repayment of the guaranteed obligation, and the Defendant prepared the instant contract for the assignment of obligation to the Defendant. However, in case where several persons are liable to perform the entire obligation, if a reorganization procedure commences with respect to one person, and an obligee exercises his right as a reorganization creditor with respect to the total amount of the claim, and then a part of the claim is subrogated to the creditor, only the obligee may exercise his right as a reorganization creditor with respect to the total amount of the claim held at the time of the commencement of the reorganization procedure, and it does not mean that a person who has subrogated to a part of the claim exercises his right as a reorganization creditor with the obligee in proportion to the amount he has repaid (see Supreme Court Decision 2001Da24938, Jun. 29, 2001). In addition, in full view of other circumstances in the judgment of the court below, the instant contract for the assignment of obligation means that the Plaintiff and the Defendant may exercise his right as a reorganization creditor in preference to the Plaintiff or the Defendant’s claim.

In the same purport, the lower court was justifiable to have recognized and determined that the claim for payment of the instant deposit was the Plaintiff. The lower court did not err by misapprehending the legal principles on the process and effect of concluding the assignment contract, the lack of reason, the violation of the rules of evidence, and the interpretation of legal acts. The allegation in the grounds of appeal on this part is without merit.

3. Conclusion

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

Justices Shin Hyun-chul (Presiding Justice)