Seoul High Court Decision 201Na14414 decided May 1, 201

Defendant (Law Firm Jeong, Attorneys Lee Na-tae, Counsel for defendant-appellant)

July 23, 2009

Seoul Central District Court Decision 2007Gahap70082 Decided November 6, 2008

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim as to the above revoked part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant paid KRW 1,200,000 to the Plaintiff (in addition to the above claim, the Defendant revoked the property division agreement on real estate indicated in the separate sheet between the co-defendant 2 of the first instance trial and the Defendant, and the co-defendant 2 of the first instance trial claimed against the Defendant to implement the procedure for cancelling the registration of cancelling the ownership transfer on the above real estate; the judgment of the first instance court became final and conclusive).

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On February 22, 1983, Korea Venture Mutual Savings Bank (hereinafter “Korea Venture Savings Bank”) was established for the purpose of credit installment savings business under the Mutual Savings and Finance Company Act. On January 19, 2007, the Financial Supervisory Commission decided as an insolvent financial institution and issued an order for business suspension on January 19, 2007, and on May 25 of the same year, the business license was cancelled upon the decision to transfer the assets and liabilities of the Korea Venture Mutual Savings Bank as a result of the non-performance of business improvement order, and the contract constituting the basis for the occurrence thereof.

B. On August 3, 2007, the Gwangju District Court declared the bankruptcy of the Korea Venture Savings Bank, and the plaintiff was appointed as the bankruptcy trustee on the same day.

C. From May 27, 2005 to January 19, 2007, the Defendant served as a director who exercises overall control over credit affairs, etc. of the Korea Development Bank.

(d) The major provisions on credit handling of Korea Venture Mutual Savings Bank shall be as follows:

(1) The loan must maintain the soundness and profitability of the loan, taking into account the debtor’s credit standing and repayment ability, the use of the loan (Article 3 of the standard loan regulations for mutual savings banks (hereinafter “loan regulations”).

(2) In dealing with a loan, the loan may be handled on credit only by a person who is deemed not to impede the recovery of claims by acquiring the security or examining the debtor's feasibility, profitability, assets, credit standing, etc. (Article VIII(1) of the Loan Regulations).

(3) The Risk Management Committee shall deliberate on the credit review per person per net balance of 50 million won, credit review of 100 million won or more, and the handling of new credit or received goods (Article 7(5) of the Risk Management Regulations).

[Ground of recognition] Facts without dispute, Gap evidence 11, 12, 14, Gap evidence 51-1 through 4, Eul evidence 30-1 and Eul evidence 30-2, the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

(a) Loans to a joint construction company at sight;

(1) The plaintiff's assertion

On September 16, 2005, the defendant handled 1,680,000 won of general loan (hereinafter "one loan of this case") 1,680,000 won for St. 5 (hereinafter "St. 200). ① St. 1 as a construction enterprise established on January 10, 2002 and the net loss of 1,461,000 won at the end of 204 is suspected of the ability to repay the loan due to poor financial standing conditions, such as 1,460,000 won, 200,000 won, 200,000 won, 20,000 won, 30,000 won, 60,000 won, 20,000 won, 60,000 won, 20,000 won, 20,000 won, 20,000 won, 206,06,00 won, 206,0

Therefore, the Defendant violated the loan provision and thereby inflicted damages equivalent to KRW 1,260,000 on the Korea Venture Savings Bank. Therefore, the Defendant is liable for compensating for the said damages.

(2) Determination

(A) Criteria for determining the duty of care of directors of financial institutions (the same applies to determining the defendant's liability in other paragraphs)

An officer of a financial institution has the duty of care as a good manager to a financial institution to which he belongs, and thus, he/she shall be deemed to have fulfilled his/her duty of care as an officer. However, in cases where a financial institution is liable for damages due to nonperformance against an officer on the ground of his/her duty of care in connection with a loan, even if the loan made by an officer was caused to be difficult to recover or impossible to recover, it cannot be concluded that the judgment of the officer who issued the loan was in breach of the good manager’s duty of care or duty of loyalty. If a reasonable financial institution’s business judgment related to the loan was conducted as an officer in good faith for the largest benefit of the company in accordance with appropriate procedures with reasonable information, the officer’s business judgment is within the permissible discretion, and the financial institution’s officer has fulfilled his/her duty of care or duty of loyalty to the company. However, in light of the above good manager’s duty of care, whether an officer has neglected his/her duty of care in breach of the duty of care as a good manager should not be deemed to have fulfilled his/her duty of care or duty of trust.

In addition, in the case of the liability for damages caused by the nonperformance of duties against the representative director or director on the ground of his neglect of duties against the corporation, the liabilities of the representative director or director on the performance of duties shall not result in any unrefied damages, etc., but shall take necessary and appropriate measures with the duty of due care as a good manager for the benefit of the corporation. Thus, only the result of the occurrence of the unrefied damages out of the loans to the corporation cannot be presumed to have occurred (see Supreme Court Decision 96Da30465, 30472 delivered on December 23, 196).

(B) The fact that the sales contract of this case was 0.1 to 71, Gap's 42-1, Eul's 42-1 to 80, Eul's 200-1, Eul's 1 to 40, Eul's 70-1, Eul's 60-1, Eul's 1 to 80-6, Eul's 1 to 40-6, Eul's 1 to 80-6, Eul's 1 to 40-6, Eul's 1 to 00, Eul's 70-6, Eul's 1 to 90-6, Eul's 1 to 00, Eul's 70-6, Eul's 1 to 400, Eul's 70-6, Eul's 1 to 6000, 1 to 70-6, 207.

The facts and facts are as follows: (a) Hyundai Switzerland Mutual Savings Bank was taking measures to preserve claims, such as offering collateral and obtaining joint and several sureties for all obligations arising from the loan of this case; (b) it judged the capability to repay loan of this case in consideration of the circumstances that the growth and activity index reached 40.29%; (c) Hyundai Switzerland Mutual Savings Bank was planning to receive loan of this case 10,000,000,000, which was approved as a result of credit examination; (d) it did not appear that the third party who received the sales contract of this case as security for the loan of this case after the collection of the first loan of this case, did not know that the sales contract of this case would lose its effectiveness as security for the loan of this case from 0,000 to 10,000,000,0000 which was approved as a result of loan examination of this case; and (e) it did not seem that the Defendant violated the duty of care of 10,000 to 20,06.

(b) Loans to business entities related to the new construction of apartments in Gyeonggi-si;

(A) The plaintiff's assertion

On June 30, 2005, the Defendant handled the loans of KRW 8,400,000 for the general loan of KRW 200 for the purchase of the new housing site as 50,000 (hereinafter “the loans of this case”). 1.00,000,000 for each of 20,000,000 won and 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00.

Therefore, the Defendant violated the loan provision and thereby caused damages equivalent to KRW 6,297,824,231 to the Korea Venture Savings Bank. Therefore, the Defendant is liable for compensating for the said damages.

(B) Determination

According to the results of fact-finding with respect to the Governor of the Financial Supervisory Service of the first instance court, the special prosecutor conducted by the Financial Supervisory Service from March 13, 2006 to November 10 of the same year, and the mutual savings bank established by the special prosecutor from March 13, 2006, is recognized as being subject to precautions (agency) pursuant to Article 14(2)2(c) of the Regulations on the Inspection and Sanctions of Financial Institutions for reasons of neglecting to examine the feasibility of loans of this case when handling credit.

However, comprehensively taking account of the following facts: Gap 21 to 28, 34 through 38 (including each number), Eul 3 to 5, and 26 each statement and the purport of the whole pleadings by non-party witness non-party 9, Daewon Mutual Savings Bank: if you prepare down down payment for the lands, three-party exchange companies, which are scheduled to be constructed (hereinafter referred to as "third-party exchange companies"), the plan to redeem the land contract price for the projects created in the first financing zone (hereinafter referred to as "PF loan"), the fact that the new bank received 2 loans from the owner of the land of this case through the 0-party loan agreement and the improvement of the 0-party loan contract for the apartment complex; the fact that the new purchase and sale contract for the new 0-party loan agreement and the new purchase and sale contract for the new 0-party loan agreement were 10,000,000 won for each of the 0-party loan projects; the fact that the new 20-party loan agreement and the new 2-party loan agreement will be enforced.

These facts and PF loans handled by a mutual savings bank are financial transactions with future cash flows arising from the evaluation of feasibility of a specific project related to real estate development as the main source of repayment of the principal and interest of the loan. BF loans, which are land purchase funds premised on real estate development, are in the form of a representative PF loans handled by a mutual savings bank, which is the second financial right. The two loans in this case are treated as hub loans repaid through the loan of a new bank, which is the first financial right, which is the first financial right. In determining the ability to repay loans, the PF loans are not the only method of assessing the feasibility of the relevant real estate development project and only physical or personal security is not the recovery of claims in violation of the duty of due to the fiduciary duty in performing his duties, and the "Acts and subordinate statutes", which appears to be an act in violation of the law and regulations that do not apply to the company's duty of care and supervision as the grounds for the law and regulations related to apartment housing and other regulations, and thus, they cannot be seen as an act in violation of the Financial Supervisory Service's duty of care.

(c) Loans to Home T&C Co., Ltd.;

(1) The plaintiff's assertion

On October 21, 2005, the Defendant handled 1,680,000 won of general fund loans for the purchase of a site for a new apartment house as requested by the Home T&C Co., Ltd. (hereinafter “The Home T&C”) (hereinafter “instant three loans”). ① Home T&C is a newly established company on March 31, 2005, and was not aware of its financial status and business performance, etc., and neglected to conduct a credit investigation to the extent of understanding the company’s outline through its business registration certificate and its corporate register without examining its financial status and profit and loss, ② The instant three loans were for the purpose of purchasing the land for the new apartment construction, and were for the remaining 00,000,000 won for the purpose of purchasing 40,000,000 won for 20,000,000 won for the above loans and 40,000,000 won for 30,000,000 won for the above new housing loans.

Therefore, the Defendant violated the loan provision and thereby inflicted damages equivalent to KRW 1,239,150,600 on the Korea Venture Savings Bank. Therefore, the Defendant is liable for compensating for the said damages.

(2) Determination

In full view of the overall purport of pleadings at the testimony of Non-Party 9, Gap 29, Eul 40, Eul 6 through 8 (including each number), the purpose of the loans of this case is the purchase price of an apartment house constructed on 200 YY 20 YY 3 (hereinafter "GY 3 apartment project"), Suwon Bank's total purchase of the land and the approval of the project of this case on September 12, 2005, before the loan of this case is executed, 30 YY 10 Y 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 3 6 6 6 6 6 6 3 6 6 6 3 6 6 6 6 3 6 6 6 6 3 6 6 6 3 6 6 3 20 3 20 3 6 3 20 3 3 4 6 20 6 3 6 3 6 6 6 4 6 2. 6 6 6 6 2. 6 6 6 6 2.

The facts and this case’s three loans are the PF loans, which are considered as hub loan theory repaid through the lending of the Suhyup Bank, which is the first financial right. It is difficult to determine that the development of Asia, which is the joint guarantor, is relatively good credit and financial standing, such as the performance of sales in apartment projects implemented by the PF loans of the Daejin Mutual Savings Bank. However, the Plaintiff sold the three loans of this case at approximately 25% price of the loans without taking all measures to preserve claims for the development of Asia, a joint guarantor, at the time of delinquency of seven months, without taking measures to secure claims, such as demanding the performance of the loans for the development of Asia, at the time of delinquency of seven months. The Plaintiff’s assertion that the loans of this case were sold to the Korea Financial Supervisory Service at approximately 30% price of the loans of this case. The Plaintiff’s three loans of this case did not have any particular problem in the approval and permission of the Gangnam-si apartment complex project before and after the three loans of this case, and the Defendant’s management and supervision of the loans of this case from 130 to May 30,26.

(d) Loans to the construction of well-being villages;

(1) The plaintiff's assertion

Around December 19, 2005, the Defendant handled general funds loans of KRW 800,00,000 for the purpose of using project costs, such as funds and service costs, for purchasing a site for a new apartment building project (hereinafter “instant four loans”), which was applied by the Defendant around December 19, 2005. (1) 1 The Defendant did not examine the borrower’s financial status, capacity to implement a project, and ability to repay loans, as much as it was established on December 24, 2004 and has not been outside one year after its establishment. (2) Since only the fact that the purchase of the entire site for a new apartment project is entrusted to the Korea Land Trust Co., Ltd., Ltd. (hereinafter “SBD Construction”), 200,000,000,000 for real estate as collateral, and 208,000,000,000 won for a loan, 30,000,000,000 won for a loan, 208, 300,06,06,06,00.

Therefore, the Defendant violated the loan provision and thereby inflicted damages equivalent to KRW 594,931,200 on the Korea Development Bank. Therefore, the Defendant is liable for compensating for the said damages.

(2) Determination

In full view of the following facts: (a) No. 30 and No. 41; (b) No. 9 and No. 11; (c) No. 40; and (d) No. 9 to 11; (b) the testimony of Non-Party 9; (c) the purpose of the loans No. 4 is the purchase price for an apartment building constructed on 10 parcels of Yong-Nam-gun; (d) No. 96-52; and (e) Hyundai Construction Co., Ltd. 4; (c) the construction of new apartment units on 40; (d) the construction of new apartment units on 0; (e) the construction of new apartment units on 40; (e) the construction of new apartment units on 40; (e) the construction of new apartment units on 40; (e) the construction of new apartment units on 60; (e) the construction of new apartment units on 40; (e) the construction of new apartment units on 60; (e) the construction of new apartment units on 40;

In light of these facts and facts, the instant four loans are considered as a PF loan, which is considered as a hub loan loan by Hyundai Marine Fire Insurance Co., Ltd., and it is relatively based on the previous Yong-gun apartment project site is located in the Do Office's relocation and development site of Southern-gun city, and considering the feasibility of the instant four loans in consideration of other areas where many development events exist, such as the development of Seonam Coastal Leisure City and the attraction of International Motor Vehicle Racing (F-1). At the time when the Plaintiff was in arrears for about six months, the Plaintiff sold the instant 4 loans to the Reorganization Corporation at approximately 25% of the loans at the price of the loan. The Plaintiff's assertion that the Supervisory Service failed to perform its duty of due care from August 31, 2005 to May 30, 2007 is difficult to view that there was no reason to view the Plaintiff's loan management of the instant 4 loans during the period of full-time work by the supervisor, as a result of the Defendant's failure to perform his duty of care from August 130 to 214.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with a different conclusion is unfair, and the plaintiff's claim for the cancellation is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kang Young-ho (Presiding Judge)