2015Guhap7586 Action Demanding the cancellation of a retrial on a compensation award

A

Board of Audit

June 3, 2016

July 15, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Defendant to the Plaintiff on September 3, 2015 is revoked.

1. Details of the disposition;

A. The Korea Housing Finance Corporation, from May 19, 2003 to September 18, 2005, provided a credit guarantee for the part payment loan obligation to 83 Korean Housing Finance Corporation among the buyers of apartment apartments, "C" in Sacheon-si B. From May 19, 2003 to Sacheon-si, and the part payment loan obligation to 83 Korean Housing Finance Corporation. The buyer repaid the guarantee obligation to the National Bank on September 28, 2005, and on September 23, 2005, subrogated the right to claim for reimbursement against the buyer (principal principal amount of 3.8 billion won) and the national bank against the prohibition of disposal of the part payment claim for the part payment loan registration of 83 households among the part payment apartment units established as a security for the part payment loan obligation.

B. On March 3, 2006, Sejong integrated Construction Co., Ltd. (hereinafter “Seung integrated Construction”) acquired the instant apartment construction project, and the buyer cancelled the sales contract due to the failure to pay the remainder of the sales contract, and acquired the said apartment units by 83 households.

C. On December 14, 2007, if the 43 households out of the above 83 households with provisional disposition had been cancelled, the 18 households’ indemnity obligation should first be repaid in cash prior to the cancellation of provisional disposition, and the remaining 25 households’ indemnity obligation should be replaced by an apartment house 24 households (21 households out of the remaining 26 households where the provisional disposition has not been rescinded and the 3 households out of the 26 households with no claim preservation measure has not been taken; hereinafter “the instant 1 substitute security”) set up a subordinate collateral security and set up a debt settlement agreement to cancel the senior mutual savings bank’s mortgage established on the 1 substitute security (hereinafter “the first debt settlement agreement”).

D. On December 18, 2007, the Korea Housing Finance Corporation accepted the first debt settlement proposal of this case (D at that time dealt with the above business as an employee in charge) and repaid 18 households' indemnity claim amounting to KRW 835,57,886, and set up a subordinate mortgage on the first substitute security of this case, and cancelled the provisional disposition on December 43, 2007.

E. However, the senior collateral security of the British Mutual Savings Bank according to the debt settlement proposal of this case was not cancelled, and the Korea Housing Finance Corporation demanded the implementation of the senior collateral security from the end of December 2007 to the end of February 2008.

F. In the early March 2008, if the Sejong General Housing Finance Corporation (hereinafter referred to as the “New Housing Finance Corporation”) revokes additional claims preservation measures against 12 households among 26 households in which the claims preservation measures are maintained, it would sell them and use them as operating funds of the Sejong General Housing Finance Corporation (hereinafter referred to as the “Second Alternative Security”) and created subordinate collateral security against the other apartment and commercial units of 8 households in the Korea Housing Finance Corporation (hereinafter referred to as the “Second Alternative Security”), and presented a debt settlement proposal with the content that cancellation or transfer of senior collateral security established by the Daegu Mutual Savings Bank (hereinafter referred to as the “Second Debt Settlement proposal”).

G. At the time of the Korea Housing Finance Corporation E branch office (hereinafter referred to as the “instant branch office”) proposed a written review of the cancellation of provisional disposition and change of right to collateral security against 12 households in accordance with the instant debt settlement plan as the head of the instant branch office on April 1, 2008, which was the head of the team responsible for the management of the right to indemnity (hereinafter referred to as the “instant branch office”) to settle the payment, and the Plaintiff approved this as it is.

H. D, on June 26, 2008 and July 17, 2008, the official seal of the head of the branch office was affixed to the document requesting the cancellation of provisional disposition against the above 12 households, and D cancelled the preservation measures for claims. However, the Korea Housing Finance Corporation, as it did not cancel or transfer the priority of collateral, was to secure only subordinate collateral security for eight households of apartment units of this case.

I. From January 26, 2010 to April 1, 2011, the voluntary auction procedure for eight households of apartment among the instant secondary collateral was conducted, but the Korea Housing Finance Corporation failed to receive dividends in the order of priority.

(j) On March 14, 2013, the Defendant: (a) deemed that D and the Plaintiff incurred damages to the Korea Housing Finance Corporation regarding KRW 529,672,703 of the right to indemnity by rescinding a claim preservation measure in accordance with the instant debt settlement plan; (b) held D and the Plaintiff liable for 90%; and (c) held D liable for 143,01,620 won, and the Plaintiff liable for 15,890,180 won, respectively.

(k) On June 13, 2013, the Plaintiff filed a request for review on the determination of compensation with the Defendant, but the Defendant rendered a dismissal ruling on September 3, 2015 (hereinafter “the instant determination of retrial”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the determination of the retrial of this case is legitimate

(a) Occurrence and scope of liability for compensation;

1) As to whether it is gross negligence

A) Article 4(1) of the Act on Liability of Accounting Personnel, Etc. provides that where accounting personnel have inflicted damage on the property of an organization, etc. subject to audit by the Board of Audit and Inspection by intention or gross negligence in violation of the provisions prescribed in the statutes or other relevant regulations and budget, they shall be liable for compensating for such damage. In light of the purpose of the Act stipulated in Article 1 of the same Act and Article 3 of the same Act as one of the requirements for compensating for the liability of accounting personnel where they have committed a "serious negligence" as one of the requirements for compensating for the liability of accounting personnel, it shall be determined by deeming that the degree of violation of the duty of good faith may be deemed as serious in light of the contents of the duty (see, e.g., Supreme Court Decision 2001Du9660, Jun. 27, 2003).

B) In light of the following facts and circumstances, it is reasonable to view that the Plaintiff’s act of approving the approval of the document with the content that the Plaintiff received the second debt settlement proposal of this case was grossly in breach of the duty of good faith, and that there was gross negligence on the part of the Plaintiff.

① Article 40(1) of the Housing Finance Credit Guarantee Credit Management Regulations (amended by the Korea Housing Finance Corporation Regulations, on August 17, 2010, the Act on the Implementation of Obligations for Housing Finance Credit Guarantee and the Right of Reimbursement; hereinafter referred to as the "Management Regulations in this case") provides that, when collecting more than the estimated amount of profit from the actual indemnity of the relevant goods, the amount of profit from the actual indemnity is compensated by the acquisition of collateral, etc., the preservation measures against the relevant goods may be reserved or rescinded upon approval of the right holder, only when it is deemed that there is a practical benefit. The second debt settlement plan in this case cannot be deemed as satisfying the above requirements.

(2) The Korea Housing Finance Corporation is one of its principal duties to guarantee debts, and thus guaranteed debts.

The duties related to securing the right to indemnity and securing the right to indemnity after performance are the major tasks of the Korea Housing Finance Corporation that regularly and repeatedly handle them. As such, a high level of expertise is required for employees in charge. The responsibility may not be exempted on the ground that the period in charge of the relevant duties is shorter.

(3) Measures for preserving claims are indispensable to secure the right of indemnity and cancellation of such measures.

The risk of financial loss directly to the Korea Housing Finance Corporation is a matter of risk.

When performing these duties, more attention should be given than the general duties.

(4) The Korea Housing Finance Corporation shall complete auction at the auction among 13 households for which no mortgage preservation measure has been released.

In the case of 12 households, all claims for reimbursement were recovered from the remainder of 569,439,538 won, excluding 69,720 won. The Korea Housing Finance Corporation has secured senior claims for the remainder of apartment buildings, so it was possible to recover the claims for reimbursement. However, it was impossible to recover all due to the cancellation of provisional disposition.

⑤ The Plaintiff, as a approving authority, shall not have the final responsibility related to the approval of the instant written approval.

Since it was located at the location, it was confirmed that Sejong General Construction was not able to have the prior collateral security cancelled under the name of Daegu Mutual Savings Bank in accordance with the debt settlement proposal of this case, and it was responsible to review the content of the document of approval of this case in the direction of accepting the second debt settlement proposal of this case. In the column of the document of approval of this case, the "15 households cancellation from among the households where the Korea Corporation has taken measures to preserve claims," is the most preceding, and in other matters column, the plaintiff was able to have known that the provisional disposition of this case will be cancelled prior to the acquisition of the document of approval of this case by reporting the document of approval of this case, and if it was not clear, it was confirmed that the provisional disposition will be cancelled prior to the approval of this case.

The plaintiff, at the time of affixing the document of approval of this case, shall not later cancel the actual provisional disposition

Although it was argued that the release of the release of the measure to preserve the claim by obligor would be made, the procedure of the product is premised on the premise that the release of the provisional disposition was not approved solely on the content of the approval document in this case, in case where the examination of the completion of the release requirement is separately required, and the document of the approval in this case contains the contents of the first

Where the contents of the instant approval document are preserved more than the expected profit from the loss of profit;

(1) Article 40(1)2 of the Management Regulations does not apply to the case (Article 40(1)2 of the Management Regulations (in this case, the requirements for the cancellation of preservation measures are subject to the internal procedures confirmed by the director) and did not follow the procedures for confirmation by the director. Thus, although the contents of the written approval are not the contents of the prior cancellation of claims preservation measures, it is argued that the contents of the written approval do not constitute the contents of the prior cancellation. However, even if the approval was approved by the prior decision of the Plaintiff, who is the head of the branch without undergoing the director confirmation procedures on the written approval of this case, the Plaintiff is in the position to make the approval process based on the determination of whether the contents of the written approval of this case correspond to a corresponding case, and thus, the Plaintiff

2) Whether there is a proximate causal relationship with the damage

In light of the circumstances described in Paragraph 1-b of the above, provisional disposition was revoked by the Plaintiff’s act of approving the instant written approval, and thereby, it can be deemed that damage equivalent to the amount of claim for reimbursement has occurred. Thus, the prior Plaintiff’s assertion cannot be accepted on a different premise.

B. Whether the statute of limitations expired

The plaintiff asserts that since the Korea Housing Finance Corporation knew the occurrence of damages caused by the provisional disposition following the approval of the instant approval document by the Korea Housing Finance Corporation at the time of the cancellation of the provisional disposition, the decision of compensation rendered after the lapse of three years thereafter is illegal.

First of all, as to the time when the Korea Housing Finance Corporation becomes aware of the occurrence of the loss due to the cancellation of provisional disposition in accordance with the Second Debt Adjustment Plan, it cannot specify the claim for indemnity not recovered at the time of the cancellation of provisional disposition. Therefore, it is reasonable to view that the occurrence and the scale of the loss could have been finally known only when the Korea Housing Finance Corporation exercises a security right, such as subordinated collateral security, and complete compulsory execution, and the claim for indemnity not recovered even after the completion

As seen earlier on April 1, 201, inasmuch as a voluntary auction procedure for an apartment bond 8, which is the right to collateral security, has been completed, it can be deemed that a claim for indemnity, which cannot be recovered due to the cancellation of provisional disposition following the instant claim for debt settlement, became final and conclusive around that time. Therefore, even if the three-year extinctive prescription is applied from the date on which the Plaintiff became aware of the occurrence of damages, as alleged in the Plaintiff’s assertion, the compensation decision made on March 14, 2013, which was before the lapse of three years thereafter, cannot be deemed unlawful even because the period of extinctive prescription expires

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges Kim Jong-tae

Judges Kim Young-young

Judges Maap-man

A person shall be appointed.

A person shall be appointed.