[1] The meaning of the Korea Technology Finance Corporation's credit guarantee terms and conditions, i.e., the priority appropriation claims under the Korea Technology Finance Corporation's credit guarantee terms and conditions, i.e., the guarantee incidental loans which

[2] The case holding that where a bank holds a promissory note issued by the guarantor for the purpose of providing a third party with financing convenience, the bank's claim for a promissory note constitutes "claim other than a guaranteed loan which can be preferentially appropriated for payment with collection money under the terms and conditions of credit guarantee"

[1] According to the credit guarantee terms and conditions between the bank and the Korea Technology Finance Corporation, Article 8 (1) of the Act provides that the amount to be appropriated prior to the repayment of the guaranteed loan under each subparagraph of paragraph (1) shall be appropriated prior to the repayment of the guaranteed loan (Paragraph (1) and the amount to be recovered after the occurrence of a credit guarantee accident, which does not fall under paragraph (1), may be appropriated prior to the repayment of claims other than the guaranteed loan, and where there is any balance, the amount to be appropriated prior to the repayment of claims other than the guaranteed loan (Paragraph (2) and the amount of claims other than the guaranteed loan under paragraph (2) shall be appropriated prior to the repayment of claims (Paragraph (3). It does not include the obligation to be borne by the debtor as the principal debtor on behalf of a third party (Paragraph (3). Thus, Article 16 subparagraph 9 of the same Act provides that the Korea Technology Finance Corporation shall not be liable for all or part of the guaranteed debt if it has appropriated a credit in violation of Article 8.

[2] The case holding that a bank's claims for a promissory note can not be appropriated as a guarantee for repayment other than the creditor's preferential loan, on the ground that, even though the principal debtor of the promissory note was not exempted from the status of the principal debtor of the promissory note against the bank on the ground that the principal debtor of the bank cannot be deemed as the principal debtor for a claim on the promissory note acquired by the bank, at least the principal debtor for a claim on the promissory note, because the principal debtor of the bank cannot be deemed as the principal debtor for a claim on the part of the principal debtor, and since the principal debtor of the bank cannot be deemed as exempted from the status of the principal debtor of the promissory note as the principal debtor against the bank on the ground that the principal debtor of the bank cannot be deemed as the principal debtor of the bank on the ground that the principal debtor of the promissory note was a beneficiary's claim under Article 8 (2) and (3) of the Credit Guarantee Terms and Conditions, i.e., the preferential claim under Article 8 (2) and (3) of the aforesaid Credit Guarantee Clause.

[1] Article 105 of the Civil Act / [2] Article 105 of the Civil Act

[1] Supreme Court Decision 87Meu3020 decided Feb. 14, 1989 (Gong1989, 410)

Plaintiff 1 and one other (Law Firm Busan General Law Office, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Korea Technology Finance Corporation

Busan District Court Decision 97Na13204 delivered on July 10, 1998

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

The court below acknowledged that the plaintiff loaned the money in its ruling to the Hyundai Magdong Co., Ltd. under the defendant's guarantee, and that the amount of the principal and interest of Hyundai Color Co., Ltd. in arrears at the time of May 6, 1996 is KRW 102,564,520, and the plaintiff was not paid the remaining amount of KRW 23,523,475 by receiving only KRW 79,041,045 from the defendant among them, and rejected the claim in this case seeking payment of the remaining amount of claims for the following reasons.

In other words, on March 26, 1996, the Plaintiff’s claim for promissory notes of KRW 30,885,637, which the Plaintiff had been separately holding with respect to modern color, was offset against the Plaintiff’s deposit claim of KRW 25,216,272, which is held against the Plaintiff. However, the Plaintiff’s claim for promissory notes of KRW 29,920,000, issued and issued to Nonparty 1 to provide convenience in financing to Nonparty New Chemical Co., Ltd. (hereinafter “New Chemical Co., Ltd.”), in order to pay back funds, the Plaintiff’s claim for the promissory notes of KRW 29,920,00 in face value, which was incurred by Nonparty 1 at the request of New Chemical Co., Ltd., Ltd., which was discounted, takes the form of bearing the Plaintiff’s obligation as the principal obligor, but in substance, was issued in a financing bill, and thus, this constitutes a set-off against the Defendant’s obligation on the bill in violation of Article 8(3) of the Defendant’s credit guarantee Clause.

However, it is difficult to accept the judgment of the court below as follows.

Upon examining the defendant's credit guarantee terms and conditions, Article 8 (1) of the Act provides that the amount of recovery of the nature that should be appropriated first for the repayment of the guaranteed loan under each subparagraph of paragraph (1) shall be appropriated first for the repayment of the guaranteed loan (paragraph (1)), and the amount of recovery after the occurrence of a credit guarantee accident may be appropriated first for the repayment of claims other than the guaranteed side loan, and where there is any balance, it shall be appropriated for the repayment of the guaranteed side loan (paragraph (2) and claims other than the guaranteed side loan under paragraph (2) shall be borne by the debtor as the principal debtor and shall not include the obligation borne by the debtor as the principal debtor and the obligation under the bill borne by the debtor for a third party (paragraph (3). Article 16 subparagraph 9 of the same Act provides that the defendant shall not be liable for all or part of the guaranteed debt if it has been appropriated in violation of Article 8. Thus, it constitutes a guarantee obligation other than the principal debtor other than the guaranteed debt or the obligation under the bill, which the principal debtor becomes the principal debtor (hereinafter referred to as the plaintiff's preferential obligation).

According to the court below's determination in this case, even if the person who received a discount of the above promissory note from the plaintiff was the non-party 1 upon his request, the plaintiff is the issuer's modern color, and thus, the plaintiff is the issuer, who is responsible for the ultimate repayment of the discounted promissory note. Thus, in the claim and obligation of the plaintiff on the promissory note acquired by the plaintiff, the modern color shop, which is the issuer, shall not be deemed the principal debtor. In addition, even though the fact that the promissory note in this case was issued for the convenience of new chemical, it cannot be deemed that the issuer's modern color shop, as the principal debtor, cannot be exempted from the status of the promissory note against the plaintiff. Accordingly, the plaintiff's claim of this case constitutes the priority appropriation claim as stipulated in the above terms and conditions.

Nevertheless, the court below held that the claim of this case is not included in the scope of the preferential appropriation claim on the grounds as stated in its holding shall be erroneous in interpreting the purport of the provision of the above terms and conditions or by misunderstanding the legal principles as to the principal obligor of a promissory note, thereby affecting the conclusion of the judgment. Therefore, the ground of appeal

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)