2014Gahap10439 decided as rehabilitation claims by the final inspection judgment

A Stock Company

Law Firm Governing Province, Attorney Park Jong-soo, Counsel for the plaintiff-appellant

[Defendant-Appellee] Defendant 1 and 3 others

D Co., Ltd., the legal administrator C of the debtor corporation B,

E. Manager.

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Man-man, the largest promotion, Park Jin-jin, and abnormal materials

October 23, 2014

November 20, 2014

1. On January 22, 2014, the Seoul Central District Court revoked the final claim inspection judgment No. 4343, supra, 2012.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit are assessed against the defendant.

On January 22, 2014, the Seoul Central District Court revised the decision to confirm rehabilitation claims No. 4343 at 2012 as follows. In addition to the amount of KRW 125,903,105,717 which the Plaintiff received as rehabilitation security rights against the debtor corporation B as rehabilitation security rights, the amount of KRW 25,520,165,397 shall be determined as rehabilitation claims.

1. Facts of recognition;

A. Conclusion of the instant business agreement and loan agreement

1) On March 26, 2008, F Co., Ltd. (hereinafter referred to as “F”) entered into a business agreement with G Co., Ltd. (hereinafter referred to as “G”) to carry out a new construction project of HH-based multi-family housing (hereinafter referred to as “instant project”) with F as the implementer of G Co., Ltd. (hereinafter referred to as “G”) and G as the contractor of G as the contractor of G (hereinafter referred to as “instant project”).

2) On March 26, 2008, F entered into a loan agreement with the Plaintiff and the Federation (hereinafter “Plaintiff, etc.”) to obtain a loan of KRW 51 billion from the Plaintiff, etc. (hereinafter “instant loan agreement”), and G at the time jointly and severally guaranteed the above loan obligations.

B. J’s acceptance of the instant project rights

1) On June 24, 2010, J Co., Ltd. (hereinafter referred to as “J”), F, G, the Plaintiff, etc. entered into an agreement on the transfer of the status of the executor and the assumption of obligations with respect to the Plaintiff, etc. of F, together with the transfer of the status of the executor.

2) Accordingly, J, F, G, Plaintiff et al. concluded the first modified agreement on the instant business agreement and the instant loan agreement by modifying the terms and conditions of the instant loan agreement.

3) On June 24, 2010, G acquired 30,000 shares of J from F to become one shareholder of J by acquiring 30,00 shares of K.

C. Conclusion of the instant funding supplement agreement

1) On September 30, 2010, the lower court concluded a second amendment agreement stating that “F shall be the operator of K Co., Ltd. entrusted with the instant project by J, and the J shall enter into a funding supplement agreement with the person obligated to supplement the funds, except in the instant business agreement and the instant loan agreement, in order to ensure the smooth progress of the instant project and the repayment capacity of the loans.”

2) Accordingly, J and B (hereinafter referred to as “B”), and the Plaintiff et al. concluded a funding supplement agreement with the following content on September 30, 2010 (hereinafter referred to as “instant funding supplement agreement”).

A) The duty to supplement funds refers to a duty that B shall provide funds necessary to enable the J to carry out the instant project without interruptions, by means of subordinated loans, etc. in accordance with this Agreement.

B) B must provide funds to J under the following conditions:

(1) B shall provide the money necessary for J in the event that the Plaintiff judges that financial resources, such as the principal and interest of loan, financial expenses, etc. are insufficient to fully affect the progress of the instant project.

B If the Plaintiff considers that the instant project is suspended regardless of the demand or intent of the J for the filling of funds or that the J entered the procedures similar thereto such as liquidation or bankruptcy, the Plaintiff must be obligated to pay the principal and interest of the loan if the said project is deemed impossible.

3. B and J are aware that the amount of the above 1 and 2 covered by the repayment of loans, such as the principle of loans, the amount of financial expenses, etc., regardless of the progress of the above project, and consent and no objection shall be raised.

(4) If the plaintiff et al. notifies B of the occurrence of the causes set forth in the above 1, 2, and 3, B shall provide the corresponding money to J within three business days from the date of receipt of the notification.

C) B shall pay the funds by means of subordinated loans, etc. to J, and the payment of such funds will be performed to the account designated by the Plaintiff.

3) After the conclusion of the instant monetary supplement agreement, J, G, Plaintiff, etc. concluded the instant modified contract on September 28, 201 and March 28, 2012 and extended the maturity of existing loans and obligations.

(d) The progress of the final inspection judgment of this case

1) On September 26, 2012, B filed an application for commencing rehabilitation procedures with the Seoul Central District Court 2012 Gohap185, the said court rendered a decision to commence rehabilitation procedures on October 11, 2012, and decided to reduce the appointment of a custodian. The representative director C was a legal custodian under Article 74(4) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”).

2) According to the investigation report by L Accounting Corporation, which is an investigation agency for the above rehabilitation procedures, the J lost the ability to repay the debt amounting to KRW 35,235,00,000,00,000,000,000,000, and the debt amounting to KRW 74,881,00,00,00,00,000,000. However, the J did not report the claim regarding the instant funding coverage agreement in the rehabilitation procedure against B as a rehabilitation claim.

3) Under the instant rehabilitation procedure, the Plaintiff filed a report on KRW 22,20,00,00 for the remainder of the instant funding supplement agreement and KRW 215,218,981 as rehabilitation security right. However, the legal administrator C, under the law, denied the total amount of the said report by asserting that the said funding supplement agreement constitutes an evasion of the law under Article 15(1) of the Monopoly Regulation and Fair Trade Act, and that the said agreement is invalid.

Accordingly, the plaintiff applied for the final inspection judgment of the rehabilitation claim as Seoul Central District Court 2012 Ma4343.

4) During the period of the final claim inspection judgment, the Seoul Central District Court: (a) divided B on December 19, 2013, and newly established D, a rehabilitation company, as part of B, (hereinafter “D”); (b) decided to authorize the amendment of the rehabilitation plan regarding B, including the aforementioned final claim inspection judgment and related rights and obligations related thereto, and the transfer of the rights and obligations to D; and (c) appointed Defendant as D’s custodian on December 24, 2013. Accordingly, partially divided D was established on December 12, 2013; and (d) the aforementioned final judgment on the confirmation of claims and the rights and obligations under the instant funding agreement were transferred to D.

5) The Defendant took over the procedure for the aforementioned claim inspection judgment conducted by the legal administrator C in B, and the Seoul Central District Court confirmed that there is no rehabilitation security right for the Plaintiff’s “B” on January 22, 2014. The Seoul Central District Court decided that the Plaintiff’s rehabilitation claim for B is KRW 104,936,318 (hereinafter “instant rehabilitation claim inspection judgment”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 10, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The primary argument

The instant monetary supplement agreement is an agreement to perform the obligation of the substantive guarantor by directly paying the supplementary fund to the Plaintiff according to the Plaintiff’s intent, in cases where it is deemed practically unreasonable to receive the supplementary fund, such as the absence of the intention of the J to receive the supplementary fund to be paid by the Plaintiff, or the suspension of the instant business is finalized, or the termination or substantial closure of the legal personality of the J.J.

In fact, in the rehabilitation procedure against B, the J did not report the claim regarding the instant monetary supplement agreement in the rehabilitation procedure, and it clearly expresses that it does not purport to exercise that claim. In addition, the J does not have the ability to repay the said loan to the Plaintiff, and thus, it should be deemed that the instant monetary supplement agreement belongs to the Plaintiff.

Therefore, the Plaintiff has the right to claim a direct payment of the supplementary fund to B pursuant to the instant monetary supplement agreement.

2) Preliminary assertion

Even if J has the right to supplement funds under the instant monetary supplement agreement against B, the Plaintiff, a creditor of J, can exercise the right to supplement funds against B by subrogation of J.

In addition, the plaintiff is entitled to claim compensation against B for damages caused by the plaintiff's failure to perform his/her duty to supplement funds under the above funding arrangement to J.

B. Defendant’s assertion

1) The plaintiff's primary assertion

The instant monetary supplement agreement is null and void as it constitutes an evasion of the law of debt guarantee prohibited under Articles 15 and 10-2(1) of the Monopoly Regulation and Fair Trade Act, and Article 21-4(1)2(a) of the Enforcement Decree of the same Act. The obligee following the instant monetary supplement agreement is not J, and the Plaintiff is not the Plaintiff. Therefore, the Plaintiff may not directly file a claim for the payment of the supplementary fund against B.

2) The plaintiff's conjunctive assertion

Even until the completion of the examination of the rehabilitation claim in this case, the Plaintiff did not express his/her intent to exercise the right of subrogation against B. Moreover, as the rehabilitation claim against B was approved on February 22, 2013, the Plaintiff’s claim against B was forfeited. Moreover, as long as the right to receive the supplementary fund under the instant funding supplement agreement exists in the J, it would not be the Plaintiff’s failure to perform the said obligation to compensate the said funds.

In addition, the plaintiff who is not the other party to the filling of funds may not have the damage claim due to default.

3. Determination

A. Whether the instant monetary supplement agreement is invalid as an evasion of the Monopoly Regulation and Fair Trade Act

1) Whether the instant monetary supplement agreement constitutes an evasion of the Monopoly Regulation and Fair Trade Act

A) Relevant statutes

It is as shown in the attached Form.

B) In the instant case:

B and its affiliates belong to an enterprise group subject to limitations on debt guarantee prohibited under Article 10-2 (1) of the Monopoly Regulation and Fair Trade Act, and the facts that the Plaintiff constitutes a domestic financial institution in which the Plaintiff is prohibited from debt guarantee under the said provision are not in dispute between the parties.

G as the contractor of the instant project, jointly and severally guaranteed the instant loan obligations of J to the Plaintiff. In the instant funding arrangement, B agreed to deposit the instant loan in the account designated by the Plaintiff in the event that the Plaintiff is unable to receive repayment of the instant loan without releasing the said joint and several debt obligations of G, and in substance, B bears the obligation to repay the instant loan to the Plaintiff.

Ultimately, the instant monetary supplement agreement constitutes an evasion of the law of debt guarantee, which is prohibited under Articles 15 and 10-2(1) of the Monopoly Regulation and Fair Trade Act and Article 21-4(1)2(a) of the Enforcement Decree of the same Act, with the content that B bears the same obligation without releasing its affiliated company from its existing obligation. (2) Whether the instant monetary supplement agreement is null and void

① The legislative purpose of Articles 10-2 and 15 of the Monopoly Regulation and Fair Trade Act is to prevent the excessive concentration of economic power, promote fair and free competition, and promote the balanced development of the national economy by prohibiting the performance of debt guarantee between domestic affiliates belonging to the same enterprise group larger than a certain scale and at the same time, evading the prohibition (hereinafter referred to as "debt guarantee, etc."), and thereby to promote the balanced development of the national economy. The above provisions are not directly aimed at immediately intervene in legal relations surrounding debt guarantee, etc., and resolving the imbalance between payment and consideration. (2) If the judicial effect of debt guarantee, etc. against an affiliate is deemed null and void as a matter of course, the enterpriser acquires profits from debt guarantee, etc., and fails to perform the guaranteed obligation, and ultimately causes damage to the transaction partner. (3) Accordingly, Article 16 (1) 5 of the Monopoly Regulation and Fair Trade Act only provides that the cancellation of debt guarantee by corrective measures against an affiliate company can be referred to as "performance of debt guarantee by corrective measures against debt guarantee, etc." and Article 19 (1) 4) of the Monopoly Regulation and Fair Trade Act does not stipulate otherwise.

In light of the above provisions and purport of the Monopoly Regulation and Fair Trade Act, the provisions of Articles 10-2 and 15 of the Monopoly Regulation and Fair Trade Act are merely a regulation and cannot be seen as an effective provision. Therefore, even though the instant funding supplement agreement is contrary to Article 15 of the Monopoly Regulation and Fair Trade Act, it is deemed a judicial validity.

B. Whether the funds supplement agreement of this case has the character of debt guarantee or debt acquisition or not, Article 1 of the Fund supplement agreement of this case provides that "the borrower shall provide funds to "the borrower" by means of subordinate lending, etc. in accordance with this agreement in order for the borrower to perform the project without fail. In addition, "the person obligated to supplement funds" shall provide necessary funds to "the borrower" if the lender determines that the substitute bank will seriously affect the progress of the project due to the lack of financial resources such as the principal and interest of the loan and the financial expenses (Article 2 (1) 1), and the person obligated to supplement funds shall pay funds to "the borrower" (Article 2 (3)) by means of subordinated lending, etc. If the lender acknowledges that the repayment of the loan does not interfere with the repayment of the loan, the person obligated to supplement funds may return funds provided to the person obligated to supplement funds pursuant to this agreement (Article 2 (4))."

B In the event that a loan is made by the J, a direct loan claim is made to J. However, in the event that B takes over the obligation to the Plaintiff by the J, the creditor bears the obligation to the Plaintiff and pays the obligation to the Plaintiff, and as B is entitled to the right of reimbursement against the J, it is legally separate right and bears the obligation to the Plaintiff. Therefore, in order for B to directly pay the obligation to the Plaintiff, there is a clear ground provision in the above monetary supplement agreement.

However, according to the contents of the instant funding agreement, only stipulates that B is obligated to lend funds short of the repayment of the principal and interest of a loan to J, and there is no explicit provision or provision to that effect that B concurrently takes over the loans owed to the Plaintiff by J. Therefore, the Plaintiff cannot be deemed as having guaranteed B the principal and interest of a loan directly owed by J against the Plaintiff or having taken over the obligations overlappingly with the Plaintiff. Therefore, the Plaintiff’s assertion is without merit. Accordingly, according to the instant funding agreement as to whether B is obligated to pay the Plaintiff a direct supplementary fund, according to the instant funding agreement, B bears the obligation to directly repay the instant loan to J, lend the insufficient funds, and the “J” only provides that B may return the funds provided pursuant to this agreement. Therefore, it is difficult to view that the Plaintiff is a beneficiary who has a direct right to claim payment of the supplementary fund against B.

In addition, in light of the context of the instant funding agreement or the meaning of the language and text thereof, unless there is a separate ground provision in the said agreement, it is difficult to interpret that “B shall directly pay the supplementary fund according to the Plaintiff’s intent in the event it is deemed substantially unreasonable to receive the supplementary fund, such as the absence of the intent to receive the supplementary fund to be paid by B beyond the meaning of the language and text, or the suspension of the instant business is finalized, or the termination or substantial discontinuance of the legal personality of theJ is substantially unreasonable.” Therefore, the Plaintiff’s aforementioned assertion is without merit.

D. Whether damage liability for nonperformance exists

1) According to the instant funding supplement agreement, although funding is performed by means of lending funds required by J, in the event that the instant loans to be paid to the Plaintiff are insufficient, B bears the obligation to supplement funds at the request of “Plaintiff, etc.” other than J. In the event that the instant loans are deposited into the account designated by the Plaintiff and are actually used only for the repayment of the instant loans by the Plaintiff, etc., thereby obtaining an exclusive satisfaction of the instant principal and interest claim.

In addition, allowing the Plaintiff to obtain an exclusive satisfaction of the claim for the principal and interest of the instant loan through the supplementation of the funds as above is the effect of the contract intended by the Plaintiff, J, and B, which is the party to the instant loan supplement agreement. Even if the instant loan supplement agreement does not separately provide for the “liability clause for damages against the Plaintiff,” the conclusion that the Plaintiff has a damage claim due to the nonperformance of the obligation of the Plaintiff is not affected.

Therefore, the plaintiff is in the position of the creditor who can claim damages against B by proving the damages that he suffered as a result of the failure of B to perform the duty to supplement funds.

2) B did not perform the obligation to supplement the loan of this case to the account designated by the Plaintiff upon the Plaintiff’s request. Although B had fulfilled the said obligation, the Plaintiff could have obtained an exclusive satisfaction of the claim for the loan of this case but failed to obtain such satisfaction, thereby causing damage to the remaining principal and interest of this case (= Principal KRW 22,200,000 + Interest KRW 215,218,981).

Therefore, according to the instant monetary supplement agreement, the Plaintiff has a damage claim of KRW 22,415,218,981 under the instant monetary supplement agreement against B.

E. Sub-decision

Therefore, with respect to D who succeeded to B’s rights and obligations under the final claim inspection judgment of this case and the instant funding supplement agreement, the Plaintiff has a rehabilitation claim of KRW 22,520,15,299 (= KRW 104,936,318) plus KRW 22,415,218,981, which was already recognized in the final claim inspection judgment of this case and the said damage claim of KRW 22,520,15,299 (i.e., KRW 104,936,318 + KRW 22,415,218,981). Accordingly, the Plaintiff’s final claim inspection judgment of this case is revoked, and the Plaintiff’s rehabilitation claim of KRW 22,520,15

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the full-time judge

Judges Lee Jin-hin

Judges 00 Efficacy

A person shall be appointed.

A person shall be appointed.