207Da736 Compensation, etc. (e.g., damages)

Bankruptcy Trustee of ○○ Corporation

[Defendant-Appellee] Plaintiff 1 et al.

Attorney Park Byung-hee et al., Counsel for the defendant

Defendant corporation

Law Firm Gyeong-woo, Counsel for the plaintiff-appellant

Shin Young-soo et al., Counsel for the defendant

Seoul High Court Decision 2006Na30770 Decided November 28, 2006

November 26, 2009

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the assertion of misunderstanding the legal principles as to the duty of care of a bank exclusively in charge of corporate improvement, the bank has fulfilled the duty of care of a good manager in order to secure the interests of creditor financial institutions as much as possible. Creditor financial institutions have delegated all business related to corporate improvement to the bank which is not separately stipulated in the creditor financial institutions council or the enterprise improvement agreement. In the case where the exclusive bank, as an agent of other creditor financial institutions belonging to the creditor financial institutions council or the enterprise subject to corporate improvement agreement, concurrently concludes an enterprise improvement agreement between the enterprise and the enterprise subject to corporate improvement, the exclusive bank shall fulfill the duty of care as a good manager for creditor financial institutions regarding the business related to corporate improvement. However, the exclusive bank convened by the creditor financial institutions and the exclusive bank, as part of its business related to corporate improvement, shall decide on the corporate improvement plan with the consent of creditor financial institutions with 3/4 or more of the amount of the claim, and it shall be deemed that the creditor financial institution failed to perform its duty of care of set-off and its voting rights in the process of determining the set-off amount.

The court below's decision that the defendant cannot be deemed to have breached the duty of due care as a good manager is acceptable in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the breach of the duty of due care as

2. In case where there is a dispute on the amount of credit to be distributed to the surviving company and the newly incorporated company based on the amount of credit of creditor financial institutions and the amount of credit to be distributed to the surviving company and the newly incorporated company in accordance with the corporate improvement work agreement regarding the assertion on the occurrence of damages, such an assertion on the misapprehension of legal principles, even if the bank exclusively in charge of corporate improvement has distributed the amount of credit to the surviving company and the newly incorporated company based on the internal determined amount of credit in spite of the creditor financial institution's objection despite the creditor financial institution's objection, such distribution is merely a temporary determination of the claim in dispute, and it cannot be deemed that the creditor financial institution's claim in dispute is reduced to the extent recognized by the exclusive bank. Thus, the creditor financial institution still can assert the performance of its obligation against the surviving company or newly incorporated company, and thus, it cannot be said that a loss has been caused to the creditor financial institution on the ground that

In the same purport, the court below's decision that although the defendant violated the duty of due care as a good manager under the corporate improvement agreement, it cannot be deemed that the plaintiff's damage was confirmed in light of the above legal principles, and there is no error in the misapprehension of legal principles as to damages

3. The court below rejected the plaintiff's assertion that there was an error in finding facts against the rules of evidence in finding that ○○ corporation purchased convertible bonds issued by △△ corporation on September 30, 199 and the security right of the amount equivalent to the liquidation amount was extinguished by purchasing the convertible bonds issued by △△ corporation on September 30, 199. However, the defendant did not have any evidence to acknowledge it. According to the reasoning of the judgment below, the defendant did not treat it as a collateral on the premise that ○○ corporation still holds a security right to convertible bonds, not because part of the bonds was treated as reduced by △△△ corporation's notice on the premise that ○ corporation still holds a security right to convertible bonds. As seen earlier, the judgment of the court below that the above additional judgment was just and the validity of the judgment could not affect the conclusion of the judgment, and thus, the allegation in the grounds of appeal on this issue cannot be accepted without examining.

4. Conclusion

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 Park Si-hwan

Justices Noh Jeong-hee

Justices Shin Young-chul