Plaintiff (Law Firm Dongnam, Attorneys Ansan-hwan et al., Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. and one other (Law Firm Democratic, Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

may 22, 2020

Changwon District Court Decision 2018Da12260 Decided August 21, 2019

1. Revocation of the first instance judgment.

2. The defendant Seoul Guarantee Insurance Co., Ltd. shall notify the new bank of the termination of the pledge contract on each deposit claim listed in the attached Form of time deposit to the new bank.

3. The Seoul Guarantee Insurance Co., Ltd. shall pay KRW 38,056,620 to the Plaintiff after receiving the notification set forth in paragraph (2) from the Defendant New Bank.

4. Of the total litigation costs, the part arising between the Plaintiff and the Defendant Seoul Guarantee Insurance Co., Ltd. shall be borne by the Defendant Seoul Guarantee Insurance Co., Ltd., and the part arising between the Plaintiff and the Defendant New Bank

The same shall apply to the order.

1. Basic facts

A. Unified Co., Ltd. (former: Construction of Industrial Complex Co., Ltd.; hereinafter “Nonindicted Co., Ltd.”) obtained a rehabilitation decision (2009 Gohap85) from the Changwon District Court on January 21, 2010 and the rehabilitation plan approval order as of December 10, 2010, respectively, and the rehabilitation procedure was completed on November 17, 2014 (hereinafter “instant rehabilitation procedure”); and the court in charge of the instant rehabilitation procedure (hereinafter “Rehabilitation court”).

B. Around June 2012, the non-party company entered into a pledge agreement on deposit claims with the Defendant Seoul Guarantee Insurance Co., Ltd. (hereinafter referred to as “Defendant Guarantee Insurance Co., Ltd.”) on January 8, 2013, and completed the construction work on January 2013, upon obtaining permission from the rehabilitation court, after entering into a contract with the 718,020,689 won (719,420,000 won after the settlement of accounts on February 4, 2013). The non-party company entered into a guarantee insurance contract with the Defendant Seoul Guarantee Insurance Co., Ltd. (hereinafter referred to as “Defendant Guarantee Insurance Co., Ltd.”) on January 1, 201, with the consent of the date of confirmation issued by the new bank (hereinafter referred to as “Defendant Bank”) with the Defendant Guarantee Insurance Co., Ltd. (hereinafter referred to as “Defendant Guarantee Insurance Co., Ltd.”) on May 25, 2012, and submitted the warranty insurance contract with the Defendant Guarantee Insurance Co.

C. Around September 2012, the non-party company entered into a contract for the extension and appurtenant work (hereinafter “each of the instant construction works”) of 1,092,973,050 won (hereinafter “each of the instant construction works”), including the aforementioned construction works, with the permission of the rehabilitation court, and completed the construction work around December 28, 2012. The non-party company entered the warranty insurance policy into a contract for the pledge on the deposit claim (hereinafter “each of the instant pledge contracts”) with the Korea National Institute of Fisheries (hereinafter “the Korea National Institute of Fisheries”). The non-party company entered the warranty insurance policy into a contract with the Korea National Institute of Fisheries (hereinafter “each of the instant pledge contracts”), and entered the warranty insurance policy into a contract with the Korea National Institute of Fisheries (hereinafter “the warranty insurance policy”) under each of the aforementioned pledge contracts into a warranty insurance contract with the Korea National Institute of Fisheries (hereinafter “the defect of each of the instant construction works”) and the performance of each of the warranty insurance policy with the Korea National Institute of Fisheries (hereinafter “the Korea National Institute of Fisheries”).

D. The Plaintiff, as a rehabilitation creditor of the instant rehabilitation procedure against Nonparty Company, was the principal of the Plaintiff’s rehabilitation claim according to the table of rehabilitation creditors. The Changwon District Court, upon the Plaintiff’s application for the seizure and assignment order based on the Plaintiff’s table of rehabilitation creditors, issued an order for the seizure and assignment of the claim amounting to KRW 38,056,620, and the seizure and the total amount of the claim indicated in the attached Form 2 on July 14, 2015 (hereinafter “instant assignment order”). The instant assignment order was served on the Defendant Bank on July 16, 2015, and was finalized on September 12, 2015.

[Ground for recognition] Facts without dispute, Gap evidence 1 through 4, Eul evidence 6 (including each number; hereinafter the same shall apply), Eul evidence 1 through 5, 10, 11, and 12, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The Plaintiff’s secured claim of each of the instant pledges is each claim for reimbursement against the non-party company based on the warranty insurance contract of each of the instant warranty insurance, and each of the claim for reimbursement of the Defendant surety insurance was extinguished upon the termination of the warranty liability of the non-party company due to the expiration of the warranty liability period of each of the instant construction works. Each of the instant pledges was extinguished upon the lapse of the warranty liability period

The plaintiff, on behalf of the non-party company, who is the debtor, terminated each of the pledge agreements of this case on behalf of the debtor, sought notice of termination of each of the pledge agreements of this case on the defendant bank, and sought payment of KRW 38,056,620 as the whole creditor according to the assignment order of this case on the defendant bank.

(b) Defendant surety insurance;

As the warranty liability period of each of the instant construction works is the period of occurrence of defects, the contractor can exercise his right even after the period, and the warranty liability of each of the instant construction works of the non-party company is not extinguished. Therefore, the future warranty liability of the Defendant surety insurance company against the non-party company, which is the secured claim of each of the instant pledges, was not extinguished finally.

The claim for reimbursement against the non-party company of the defendant surety insurance, which is another secured claim of each of the instant pledges, was not extinguished.

Each of the pledges in this case is not extinguished, and since each of the pledges in this case was not legally terminated due to the lack of the grounds for termination, the plaintiff cannot respond to the plaintiff's request for notice of termination of each of the pledges in this case.

C. Defendant Bank

When the assignment order of this case was delivered to the defendant bank that is the garnishee, the non-party company and the defendant guarantee insurance already concluded the respective pledge contract of this case on each of the deposit claims stated in the attached sheet with the consent of the fixed date of the defendant bank and met the requirements for setting up a pledge against the third party including the plaintiff. Thus, the assignment order of this case does not have the effect on each deposit claim listed in the attached sheet

Even if it is not so, each of the pledge contracts of this case is a pledgee who has preferential right to payment as to each of the deposit claims listed in the attached form of deposit until the contract of this case is lawfully terminated, so it cannot respond to the plaintiff's claim for full payment.

3. Determination

A. Effect of the assignment order of this case

We examine the validity of the assignment order of this case where each of the deposit claims stated in the attached form of deposit, which is the object of each pledge of this case, is the whole claim.

An assignment order is effective only when the order has been served on the garnishee, and it is also effective when the entire claim in question has already been served on the garnishee. If the entire claim in question has already been transferred to a third party and no longer has been lawfully transferred, the assignment order cannot be deemed effective on the assigned claim (see Supreme Court Decision 80Nu484, Sept. 22, 1981, etc.). Since an assignment order on a claim for which competition of seizure has occurred violates the principle of creditor equality under the Civil Execution Act, it is invalid (Article 229(5) of the Civil Execution Act).

However, if an obligor fails to repay his/her obligation in the future, the right of collection of a claim subject to a pledge is reserved, and it is difficult to deem that a claim is transferred or transferred to the pledgee due to the pledge (see Article 353 of the Civil Act). Meanwhile, Article 346 of the Civil Act provides that "the creation of a pledge right shall be made by the method of transfer of such right unless otherwise provided in the Act," but this does not constitute a transfer of a claim subject to a pledge right, which does not constitute a change in the interests of a pledgee under Article 352 of the Civil Act (see Supreme Court Decision 2003Da55059, Dec. 22, 2005). The assignment of a claim subject to a pledge right does not constitute a change in the interests of a pledgee under Article 352 of the Civil Act (see Supreme Court Decision 2003Da55059, Dec. 22, 2005). It is difficult to transfer a claim subject to a pledge right as it is without concern that legitimate interests, such as prior pledgee's exercise of a pledge right.

B. Whether each of the pledge rights of this case is extinguished

1) First, we examine whether the future claim for reimbursement regarding the warranty liability of each of the instant construction works against the non-party company of the Defendant surety insurance, which is the secured claim of each of the instant pledges, has been extinguished.

Article 28(1) of the Framework Act on the Construction Industry provides that “If the object of a construction project is built of brick-type structure, reinforced concrete structure, steel structure, steel reinforced concrete structure or any other similar structure, the contractor’s liability for warranty against the ordering person of the construction project shall be imposed within 10 years from the date of completion of the construction project (Article 10 and attached Table 4) and five years from the date of completion of the construction project if it is built of any other structure (Article 28(1)).” Article 28(3) provides that “If the object of the construction project is specially prescribed in other Acts and subordinate statutes (excluding Articles 670 and 671 of the Civil Act) or separately prescribed in the contract, the period of warranty against the contractor’s defect shall be 0 years from the date of completion of the construction project.” Article 30(1) of the Enforcement Decree of the Framework Act on the Construction Industry provides that the period of warranty against the contractor’s defect shall be 20 years from the date of expiration of the warranty liability period prescribed in the Civil Act.”

According to the purport of the evidence Nos. 1, 3, and 10, the non-party company and the Gyeongnam District Government Agency set the warranty liability period for the non-party company as five years from the completion date of the construction. The non-party company and the defendant company newly constructed the new construction of the public health branches, welfare center, when the insurance period for the non-party company and the defendant company are erogic, from January 25, 2013 to January 24, 2018, and the extension of the erogic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fic fics fic fic fic fic fic fic fic fic fic fic fic fic c.

2) Next, we examine whether the separate established claim for reimbursement against the non-party company of the Defendant surety insurance constitutes the secured claim of each of the instant pledges.

Unless there exist special circumstances, a contract to establish a mortgage shall be interpreted in accordance with the terms and conditions of the contract, as it is a disposal document. However, in cases where the document to establish a mortgage is a contract printed and used in the same form of a general transaction clause uniformly, the provision of the contract shall include all the obligations to be borne in the future or existing, even if it is stated that the scope of the secured obligation should be comprehensively included in the terms of the contract, in light of various circumstances, such as the process of conclusion of the contract to establish the mortgage, transaction practices, relationship between each obligation and the maximum debt amount thereof, and whether separate security is secured against other obligations, the interpretation of the scope of the secured obligation in accordance with the terms and conditions of the contract, and it is reasonable to interpret that the intent of the parties is that only the obligations arising from a specific continuous transaction or a certain kind of transaction is the purpose of the secured obligation of the secured obligation of the secured obligation. Thus, the comprehensive provision of the contract is merely an example of the general transaction clause printed in the same text, and it shall be determined by stating the intent of the parties (see, e.g., Supreme Court Decision 296Da297.267.297.297.

According to the evidence evidence Nos. 4 through 8 of this case, the fact that there was a claim for reimbursement which is confirmed as a rehabilitation claim against the non-party company of the defendant guarantee insurance at the time of the rehabilitation plan approval order in the rehabilitation procedure of this case, and each of the security certificates (hereinafter "certificate of each of the security certificates of this case") which appears to have been delivered by the non-party company to the defendant guarantee insurance at the time of each of the pledge contract of this case.

However, in light of the following facts and circumstances, it is reasonable to view that each of the instant pledges does not guarantee the claim for reimbursement against the non-party company of the Defendant surety insurance, in light of the overall purport of the arguments as seen earlier.

On December 21, 2012 and February 3, 2013, which was around the completion of each of the instant construction works, the non-party company filed an application for permission to issue each of the instant warranty insurance policies with the rehabilitation court. Each of the applications stated that the issuance terms of the warranty insurance policy stipulates that the non-party company will provide the deposit claim of the non-party company as security for each of the instant warranty insurance claims at 70% of the defective warranty insurance amount (the new construction of the Public Health and Welfare Center (21,582,60 won, the new construction of the Public Health and Welfare Center, and 32,783,910 won, the new construction of the Public Health and Welfare Center, 15,107,820 won, the new construction of the Public Health and Welfare Center, and the new construction of the Public Health and Welfare Center, 22,948,00 won, which is the subject of each of the instant pledge insurance claims, and the amount of each of the instant warranty insurance claims and the amount of each of each of the instant warranty claims are determined.

○ On December 28, 2012 and February 8, 2013, which was after the above permission decision of the rehabilitation court, the non-party company was deemed to have prepared and delivered each of the instant security claims only with the defendant surety insurance under the defect warranty insurance contract and pledge contract of this case between the defendant surety insurance and the defendant surety insurance. As such, the applicant did not apply to the claim for reimbursement which is confirmed as a rehabilitation claim of the defendant surety insurance as security of each of the deposit claims indicated in the attached Form or the rehabilitation court permitted it.

The main contents of each of the warranty insurance contracts and pledge contracts of this case are 70% of the defect warranty insurance amount, which is 3% of each of the construction costs of this case, to provide each of the deposit claims listed in the separate sheet of the non-party company, as the object of pledge. In light of the grounds and reasons for calculation of the scope of each of the deposit claims stated in the separate sheet of this case, it is reasonable to deem that the non-party company and the defendant guarantee insurance concluded each of the pledge contracts of this case as the purpose or intent to guarantee only the claim for indemnity regarding each of the construction works of this case, and it is difficult to recognize binding force because the comprehensive statement of 2.0% of each of the security certificates of this case is merely the example of the general

3) Therefore, each of the instant pledges was extinguished in accordance with the subsidiary nature of each of the instant pledges, since future claims for reimbursement regarding the warranty against each of the instant construction works against the non-party companies of Defendant Guarantee Insurance, which are secured claims, did not occur definitely, and each of the instant pledges was extinguished.

C. Determination on the claim for Defendant’s guaranteed insurance

As seen earlier, the grounds for termination of each of the instant pledge contracts have occurred due to the extinguishment of all of the respective pledges of Defendant Guarantee Insurance, and it is clear in the record that the Plaintiff’s letter of intent of termination of each of the instant pledge contracts on behalf of Nonparty Company, the debtor, was served on June 14, 2019. As such, each of the instant pledge contracts was lawfully terminated on the same day. Accordingly, Defendant Guarantee Insurance is obligated to notify the Defendant Bank of the said termination at the Plaintiff’s request subrogated to Nonparty Company.

D. Determination on the claim against the defendant bank

As seen earlier, each of the instant pledge contracts was lawfully terminated upon the termination of each of the instant pledge rights by the Plaintiff’s subrogation of Nonparty Company due to the termination of each of the instant pledge rights. As such, the Defendant Bank is obligated to pay KRW 38,056,620 to the Plaintiff, which is the full creditor under the instant assignment order, after being notified of the termination of each of the instant pledge rights from the Defendant Guarantee Insurance, after being notified of the termination of each of the instant pledge rights.

4. Conclusion

Thus, all of the plaintiff's claims against the defendants must be accepted on the ground of its reasoning. Since the judgment of the court of first instance is unfair on the ground of its conclusion, it is so revoked, and it is so decided as per Disposition by ordering the defendant bank to notify the termination of each pledge contract of this case against the defendant bank and to order the defendant bank to pay the above recognized amount.

(attached Form omitted)

Judge Yang Sang-hoon (Presiding Judge) Lee Jin-young