[1] In a case where a mutual savings and finance company provides a guarantee to another person as the principal debtor, whether it constitutes "loan" under Article 17 (1) of the former Mutual Savings and Finance Company Act (affirmative)

[2] The validity of bearing debts in violation of Article 17 (1) of the former Mutual Savings and Finance Company Act (negative)

[1] The main sentence of Article 17 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998) provides that "a mutual savings and finance company shall not borrow a loan in excess of its equity capital." The term "loan" refers to all acts bearing obligations under a loan for consumption, regardless of its name, type, and method, and therefore, it shall be deemed that the above provision is applicable even if the mutual savings and finance company provides a guarantee to another person as the principal obligor.

[2] Article 17 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998) that prohibits a mutual savings and finance company from borrowing a loan in excess of its equity capital is not merely a so-called regulation, but also an effective regulation, so the act of assuming debt obligations in violation of such provision shall be deemed null and void.

[1] Article 17 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998) / [2] Article 17 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998)

[2] Supreme Court en banc Decision 85Meu122 delivered on Nov. 26, 1985 (Gong1986, 110) (Gong1986, 110), Supreme Court Decision 85Meu2532 delivered on Apr. 8, 1986 (Gong1986, 761), Supreme Court Decision 85Meu2029 delivered on July 22, 1986 (Gong1986, 109)

The Korea Deposit Insurance Corporation, a bankruptcy trustee who is a trustee in bankruptcy of the non-party, who is a trustee in charge of the mutual savings and finance company.

Seoul High Court Decision 200Na14488 delivered on August 2, 2001

Seoul High Court Decision 99Na67897 delivered on July 6, 2000

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

1. The main sentence of Article 17 (1) of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998) provides that "a mutual savings and finance company shall not borrow a loan in excess of its equity capital." The term "loan" here refers to all acts bearing obligations under a monetary loan regardless of its name, type, and method, and therefore, it should be viewed that the above provision is applicable even if the mutual savings and finance company provides a guarantee to another person as the principal obligor.

In this case, the decision of the court below that the bankrupt's gold savings and finance company (hereinafter "the bankrupt's savings and finance company") is subject to the loan under the above provision even if it voluntarily takes the form of joint and several sureties at the time of borrowing, in light of the above legal principles, and there is no misapprehension of the legal principles as to false indication due to the substance and form of the loan contract or the expression of intention or collusion, not the truth, as pointed out in the ground of appeal No. 1, and there is no misapprehension of the legal principles as to false indication due to the fact of the loan contract. The case required by the defendant's ground of appeal is not appropriate to this case, and Article 18-2 of the former Mutual Savings and finance Company Act, which is controversial, was newly established by the amendment by Act No. 5501

2. Article 17 (1) of the former Mutual Savings and Finance Company Act, which prohibits a mutual savings and finance company from borrowing a loan in excess of its equity capital, is not merely a so-called regulation, but also an effective regulation, so it does not require that the act of assuming debt obligations in violation thereof should be deemed null and void (see Supreme Court en banc Decision 85Meu122, Nov. 26, 1985). Accordingly, the judgment of the court below that the loan of this case is null and void is in accordance with the above legal principles, and it is correct, and there is no error in the misapprehension of legal principles as to the validity of the above provision as pointed out in the ground of appeal No. 2.

3. If the loan of this case is null and void, the borrower cannot seek the payment of a promissory note which is issued for the payment between the borrower and even if the defendant acquires the right to claim the return of unjust enrichment or the right to claim the damages against the bankrupt depository, such right cannot be deemed a underlying claim of the above promissory note. Therefore, the decision of the court below to this effect is justified, and there is no error in the misapprehension of the legal principles as to the validity of the issuance of a promissory note or the relationship of the cause of the promissory

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)