[1] Whether a special contract to exclude commercial lien can be concluded by an implied agreement between the parties (affirmative)

[2] In the rehabilitation procedure against Gap corporation, in a case where Eul bank, which had claims for loans to Gap corporation, claimed the acquisition of commercial lien on the Promissory Notes issued by Byung corporation Byung, which had been under custody upon delegation of collection from Gap corporation's Han-do, and reported the claim equivalent to the amount of the bills as rehabilitation security right, Gap corporation's administrator denied this claim, and Eul corporation's administrator denied this claim. The credit transaction basic terms and conditions of Eul bank, which were incorporated into the contract at the time of the loan agreement, provide that "if the debtor delayed performance of obligations, he may continue to possess, collect, dispose of, etc., even if the debtor's movable assets, bills, or other securities are not offered as security, even if they are not offered as security, the case holding that the collection delegation agreement alone erred in the misapprehension of legal principles in the judgment below which denied

[1] The Commercial Act has a provision on commercial lien separately from the lien under the Civil Act for the purpose of acquiring a security through prompt and convenient transaction between merchants. In other words, the main text of Article 58 of the Commercial Act provides that “if a claim arising from a commercial activity between merchants is due, the obligee may retain the property or securities owned by the obligor due to his/her commercial activity with respect to the debtor until repayment is made, the obligee may retain the property or securities possessed by him/her as a result of his/her commercial activity with respect to the debtor,” thereby allowing the commercial lien to be excluded by a special agreement, while the proviso of the same Article provides that “if there is any other agreement between the parties, the same shall not apply.” Such special agreement on the exclusion of commercial

[2] In rehabilitation proceedings against Gap corporation, in a case where Eul bank, which had claims for loans to Eul corporation, claimed the acquisition of commercial lien on the promissory note issued by Byung corporation, which was in custody upon delegation of collection from Gap corporation, and filed a report on the claim equivalent to the amount of the promissory note as rehabilitation security right, Gap corporation's administrator denied this claim, and Eul bank's credit transaction basic terms and conditions incorporated into the contract at the time of the loan agreement provide that "if the debtor delayed performance of obligations, he may continue possession, collection, disposal, etc., even if the debtor's movable assets, bills, or other securities are not offered as security, even if they are not offered as security," unlike the above terms and conditions, the court below erred in the misapprehension of legal principles as to the establishment of the above commercial lien agreement, on the ground that there was a special agreement to exclude commercial lien which would not exercise commercial lien, unlike the contents of the above terms and conditions, and in the absence of such an explicit agreement, it erred in the misapprehension of legal principles as to the conclusion of the above commercial lien.

[1] Article 58 of the Commercial Act / [2] Article 58 of the Commercial Act

New Bank Co., Ltd. (Law Firm Democratic, Attorneys Yoon Jae-sik et al., Counsel for the plaintiff-appellant)

The administrator of the debtor treatment Lochis corporation shall be the non-party's lawsuit acceptance; the non-party's lawsuit acceptance;

Seoul High Court Decision 2011Na37706 decided April 13, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The Commercial Act has a provision regarding commercial lien separately from the lien under the Civil Act for the purpose of acquiring a security through prompt and convenient transaction between merchants. In other words, the main text of Article 58 of the Commercial Act provides that “if a claim arising from a commercial activity between merchants is due, the obligee may retain the property or securities owned by the obligor due to his/her commercial activity with respect to the debtor until repayment is made, the obligee may retain the property or securities possessed by him/her as a result of his/her commercial activity with respect to the debtor,” thereby allowing the commercial lien to be excluded by a special agreement on the part of the parties, while the proviso of the same Article provides that “if there is any other agreement between the parties, the same shall not apply.” Such special agreement

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. AMTTex Co., Ltd. (hereinafter “AMTex”) issued and delivered one copy of a promissory note (hereinafter “instant note”) dated September 30, 2009, at par value 61,050,000, and due date, to pay for transportation charges, to the debtor Lochix Co., Ltd. (hereinafter “debtor”).

B. Around June 30, 2009, the debtor company delegated the collection of the Promissory Notes to the Plaintiff, a financial institution, and accordingly, the Plaintiff kept the Promissory Notes until the maturity of the Promissory Notes.

C. In such a situation, the rehabilitation procedure for the debtor company was commenced on July 23, 2009 by Seoul Central District Court 2009 Mahap109, and the Nonparty was appointed as the administrator.

D. On September 2, 2009, the Plaintiff, who had a claim for a loan against the debtor company, filed a report on KRW 61,050,000 for the instant bill as a rehabilitation security right by asserting that he/she acquired a commercial lien with respect to the instant bill in the aforementioned rehabilitation procedure. Accordingly, the Nonparty denied the rehabilitation security right on the ground that the Nonparty did not have a security right, and the Nonparty admitted the claim as a rehabilitation claim.

E. On September 30, 2009, the due date of the Promissory Notes, the Plaintiff received the said Promissory Notes from AMTex and delivered the Promissory Notes to AMTex.

F. The Plaintiff filed a final claim inspection judgment with Seoul Central District Court Decision 2009Hun-Ma979, but the above court decided on August 5, 2010 that the Plaintiff did not have a rehabilitation security right for the Plaintiff’s debtor company on the ground that “The Plaintiff, a mandatory, is obligated to deliver the money collected from the obligor company to the obligor company, and the Plaintiff’s exercise of the right of retention for the said bill violates the above obligation, and thus, it is reasonable to view that there is an implied special agreement between the Plaintiff and the debtor company to exclude the right of retention.”

G. Article 6(3) of the Plaintiff’s Basic Terms and Conditions for Credit Transactions (hereinafter “instant Terms and Conditions”) provides that “Where an obligor delays the performance of his/her obligation to a bank, the obligor’s movable assets, bills, and other securities held by the bank shall be deemed to have been occupied by the bank or to be able to collect or dispose of them in accordance with paragraph (2), even if they are not offered as security,” and the said Terms and Conditions for Credit Transactions were incorporated into a contract at the time of the Plaintiff’s and the obligor’s foregoing loan agreement.

3. The lower court determined that the Plaintiff did not have commercial lien on the instant bill for the following reasons.

A. The plaintiff, while keeping the bill of this case in accordance with the collection delegation agreement with the debtor company, has the duty to deliver the bill of this case to the issuer at the same time as receiving a bill from the issuer upon presenting it to the issuer on the maturity, and to pay the bill to the debtor company, who is the delegating.

B. As such, the Plaintiff, who is liable to deliver the Promissory Notes to the drawer for collection, continues to hold possession of the Promissory Notes by exercising the lien on the Promissory Notes is contrary to the above duty to perform, that is, the delegated obligation, and if recognized, it would result in an obstacle to the realization of rights as a holder of the Promissory Notes. Therefore, in this respect, there is an implied special agreement between the Plaintiff and the debtor company to exclude the lien.

C. The terms and conditions of this case, which are basic terms and conditions for credit transactions, clearly stipulate in a collection delegation agreement that does not in itself constitute a credit transaction such as bill lending or bill discount, that the mandator bears the duty of affirmative action such as due collection as the duty to collect with respect to the mandator, and thus, cannot be deemed as being applied to the case where a implied special agreement on the exclusion of commercial lien is recognized as above.

4. However, we cannot accept the judgment of the court below for the following reasons.

In light of the legal principles of commercial lien, we examine whether the Plaintiff had commercial lien on the bill of this case at the time of the commencement of the rehabilitation procedure.

First of all, since the Plaintiff had a claim for loans to the debtor company and had occupied the bill of this case entrusted by the debtor company with collection, it seems that the basic requirements for the establishment of commercial lien have been satisfied.

Next, it is a question whether there is a special agreement between the plaintiff and the debtor company on the exclusion of commercial lien.

In light of its nature, securities can be treated like money, unlike general movable property, so it is difficult to deem that the exercise of the right of retention on securities causes a strong conflict with the performance of the obligation to collect securities, and that the collection delegation of the bill of this case alone cannot be readily concluded that there was an implied agreement to exclude commercial lien.

Furthermore, the relationship between the terms and conditions of this case is examined. The terms and conditions of this case contain the purport that even if a bill, etc. owned by an obligor and a company possessed by the Plaintiff is not offered as a security, if any delay in the performance of an obligor exists, it may continue to possess such bill, and may take measures to appropriate it for the repayment of loan claims. In other words, the intent of the Plaintiff under the terms and conditions of this case is to understand as a security even if a bill, etc. possessed by the obligor company is not offered as a security if a bill, etc. of the obligor company is delayed, and

The Plaintiff, a bank, is entitled to dispose of the subject matter in a way other than a legal procedure and recover the claim by exercising commercial lien on movable property or securities not offered as a security under the terms and conditions of this case. Thus, the terms and conditions of this case are strong claims collection devices.

However, the basic terms and conditions of credit transaction, including the terms and conditions of this case, were incorporated into a loan agreement concluded by the Plaintiff while making a loan to the debtor company and were effective in the plaintiff and the debtor company.

As such, in order to be recognized that there was a special agreement to exclude commercial lien that the Plaintiff would not exercise commercial lien on the Promissory Notes in breach of the terms and conditions of this case when the Plaintiff received a delegation of collection of the Promissory Notes from the Plaintiff and the debtor company, unlike the terms and conditions of this case, in the situation where the validity of the terms and conditions of this case is maintained, it should be clearly recognized that there was another agreement between the parties which takes precedence over the provisions of the terms and conditions of this case in order to find that there was a special agreement to exclude commercial lien on the Promissory Notes. In the absence of such an express agreement, deeming that there was an implied intent between the Plaintiff and the debtor as to the exclusion of lien cannot be deemed as an intentional interpretation of the parties’ genuine intent.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court rejected the Plaintiff’s establishment of commercial lien on the instant bill on the ground that there was an implied special agreement between the Plaintiff and the debtor company on the premise that the provision of the instant terms and conditions cannot be applied in determining whether to establish commercial lien on the instant bill. In so doing, the lower court erred by misapprehending the legal doctrine on special agreement on the exclusion of commercial lien, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)