In a case where the creditor financial institutions council adopted a resolution to provide a new guarantee, etc. to Gap company under the former Corporate Restructuring Promotion Act and conducted a new guarantee by Eul, a guarantee agency belonging to the above council, and Eul, upon occurrence of a new guarantee-related accident, made an agreement or a resolution to share losses among guarantee agencies in the event of a new guarantee-related accident, and sought settlement, etc. against Byung corporation, a guarantee agency, which belongs to the above council, the case holding that the judgment below did not err in the misapprehension of legal principles, etc. in holding that it is difficult to view that there was an agreement or a resolution to share losses among guarantee agencies in the event of a new guarantee-related accident provided in the above resolution, etc., in light of various circumstances, such as the fact that there was no express resolution in the above resolution, etc., and that such a practice cannot be deemed to have been formed in the joint administrative proceeding under the former Corporate Restructuring Promotion

Articles 4, 5, 8, 10, 15, 17(1)7, and 18 of the former Corporate Restructuring Promotion Act (Act No. 10684, May 19, 201); Article 105 of the Civil Act

The Korea Trade Insurance Corporation (Law Firm LLC, Attorneys Yoon Yang-ho et al., Counsel for the defendant-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Ba-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2057278 decided November 2, 2016

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In light of the following various circumstances, the lower court determined that it is insufficient to recognize that each of the instant resolutions made an agreement or a resolution to share losses between guarantee agencies in the event of a guarantee accident with respect to a new guarantee provided as alleged by the Plaintiff.

(1) Pursuant to Article 2(1) of the former Corporate Restructuring Promotion Act (amended by Act No. 10684, May 19, 201; hereinafter “former Promotion Act”) and Article 2(1) of the Addenda, a joint administrative proceeding or a resolution by the creditor financial council of creditor financial institutions under the former Corporate Restructuring Promotion Act shall be made clear so that any person may easily forecast the resolution.

(2) It is natural to interpret that each of the instant resolutions setting forth the content of the promise of loss apportionment can claim loss apportionment against the Plaintiff and the Defendant, the guarantor, and the Defendant, against the Defendant, who carried out a new guarantee. In addition, each of the instant resolutions did not expressly decide that each of the instant resolutions bears the duty of loss apportionment between the guarantor and the other guarantor. In the case of a new loan, a financial institution may only claim loss apportionment against the guarantor for the additional share of the relevant institution.

(3) The Plaintiff and the Defendant stated that the Plaintiff and the Defendant do not bear the obligation to share losses related to new guarantees even in the accompanying documents when the Bank, the principal creditor bank, notifies the Plaintiff and the Defendant of the current status of loss apportionment.

(4) There is no evidence to prove that, in the joint administrative proceeding under the former Promotion Act, there was a practice that the guarantee agency bears the duty of mutual apportionment of losses, as alleged by the Plaintiff.

(5) A guarantee is distinguishable from a loan in that the risk or damage occurs only when the risk or damage is realized. However, the creditor financial institutions council, without considering the special nature of the guarantee, determined the amount of a claim, which serves as a basis for voting rights, based on the “amount of a guarantee” guaranteed by the Plaintiff and the Defendant, and had the Plaintiff distribute or settle the new amount of credit. In light of the fact that both the Plaintiff and the Defendant’s new guarantee are common factors that considerably depend on the debtor’s ability to repay, it cannot be readily concluded that non-performance of the obligation

2. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles as to the grant of new funds and the apportionment of losses under the joint management procedures, by misapprehending the legal principles as to the existence of mutual agreement between guarantee agencies on the apportionment of losses, by misapprehending the rules of evidence, by failing to exhaust all necessary deliberations

3. 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 on the bench.

Justices Kwon Soon-il (Presiding Justice)