Gyeonggi Credit Guarantee Foundation (Law Firm Two, Attorneys Kim Han-dong, Counsel for the plaintiff-appellant)

Defendant

June 8, 2018

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 43,985,249 won and gold 43,984,812 won with 12% per annum from October 23, 2017 to the service date of a copy of the complaint of this case, and 15% per annum from the following day to the full payment date.

1. Basic facts

A. The Plaintiff entered into a credit guarantee agreement with the following content upon the request of the non-Eth Ethmph Co., Ltd.

B. If the principal obligor fails to repay the loan, which is the principal obligation of the Plaintiff’s guarantee, to the obligee within the due date (including the loss of the benefit of time) and the Plaintiff claims for the performance of the guaranteed obligation, the principal obligor and the joint guarantor agree to jointly and severally pay to the Plaintiff ① the amount of subrogation paid by the Plaintiff for the performance of the obligation, the amount of damages paid by the Plaintiff from the date of performance of the obligation to the date of full payment, ② the additional guarantee fee from the day following the date of payment of the guarantee fee to the day before the expiration date of the guarantee fee, ③ the additional guarantee fee from the date following the date of payment of the guarantee fee to the date of termination of the guarantee fee, and ③ the legal procedure expenses (provisional payment) disbursed

C. The Defendant, who is the representative director of the non-Ethmph Co., Ltd., jointly and severally guaranteed the obligation of indemnity against the Plaintiff.

D. On October 28, 2014, the Plaintiff issued a credit guarantee certificate with a guarantee principal of KRW 180,00,000,000, the guarantee principal of KRW 27 October 27, 2017, and a credit guarantee certificate with an individual guarantee of the guarantee method. A non SPP Co., Ltd. submitted this credit guarantee certificate to the Nonghyup Bank and received a loan.

E. After receiving the above loans from the Nonghyup Bank Co., Ltd., Ltd., the said loans, on July 28, 2017, causing a guarantee accident on the principal and interest basis, and the Nonghyup Bank demanded the Plaintiff to discharge the guaranteed obligation, and the Plaintiff subrogated for the guaranteed obligation of KRW 45,314,912 to the Nonghyup Bank on October 23, 2017, but recovered KRW 1,330,100 thereafter, and still recovered KRW 43,984,812.

F. The Plaintiff’s interest rate for delay shall be the initial date of the payment by subrogation. From October 23, 2017, the date of payment by subrogation, to October 23, 2017, the date of payment by subrogation, 12% per annum, and there is damages for delay from the date of payment by subrogation to the date of payment by subrogation, and 437 won, if calculated

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 7

2. Determination

A. The plaintiff is the cause of the claim in this case. The defendant is a joint and several surety for the plaintiff in non-TSP Co., Ltd., and is obligated to pay to the plaintiff 43,985,249 won (43,984,812 won for non-repaid subrogation + 43,984,812 won for non-repaid subrogation) and 43,984,812 won for non-repaid subrogation from October 23, 2017 to the date of delivery of a copy of the complaint in this case, 12% per annum under the agreement and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

B. However, in a case where it is prescribed in the rehabilitation plan for the rehabilitation debtor, who is the primary debtor, to convert the amount of debt equivalent to the appraised amount of the rehabilitation claim to the extent of the amount of the rehabilitation claim to be substituted by the conversion of the new shares acquired by the rehabilitation creditor as of the effective date of the issuance of new shares through the conversion of the conversion of the investment, shall be deemed to have

However, according to the rehabilitation plan established on March 6, 2018, the Plaintiff’s subrogated 43,984,812 and interest 14,898 won prior to the commencement of the rehabilitation plan, totaling 36,607,759 won, totaling 83.2% of the totaling 43,99,710 won and interest 14,898 won prior to the commencement of the rehabilitation plan shall be converted into equity, totaling 7,391,951 won, totaling 16.8% from 2018 to 2019, totaling 3% each year, totaling 11% from 2020 to 2021, totaling 12% each year equal each year from 2022 to 2027, and totaling 5,000 common shares amounting to 5,00 won are issued at the same price on the following day, and the rehabilitation claim can be deemed extinguished in lieu of the issuance of new shares.

C. In addition, when a small enterprise enters into a credit guarantee agreement with the Korea Credit Guarantee Fund in order to obtain a loan from a financial company, the representative of the small enterprise, such as the defendant, is ordinarily a joint guarantor. Even if the obligation of the small enterprise, which is the principal debtor, is adjusted according to the rehabilitation plan, it does not affect the scope of the joint guarantor's liability, the effective rehabilitation of the small enterprise, which is not financial difficulties, and the reorganization of the representative. Therefore, it is reasonable to interpret that the indemnity creditor is a credit guarantee foundation, and in this case where the representative of the principal debtor is a joint and several surety, the defendant'

In other words, the Plaintiff asserts that Article 250(2) of the Debtor Rehabilitation and Bankruptcy Act, which recognizes the exception of the subsidiary nature of the guaranteed obligation, should be applied as it is, inasmuch as the Plaintiff is a non-profit special corporation established under the Regional Credit Guarantee Foundation Act. However, in light of the purpose of the Regional Credit Guarantee Foundation "the purpose of facilitating financing and contributing to the revitalization of the regional economy and the promotion of the welfare of the ordinary people by guaranteeing the obligations of small enterprises, micro enterprises, etc. in the region where the guaranteed obligation falls short of the secured obligation, the overall structure of statutes, the work of the Credit Guarantee Foundation, and the characteristics of the parties, etc., it is reasonable to recognize the exception to Article 37-3 of the Korea Technology Finance Corporation Act or Article 30-3 of the Credit Guarantee Fund Act by reflecting the legislative

3. Conclusion

Thus, the defendant's joint and several surety obligation that has been reduced or exempted at the same ratio as the principal debt according to the above rehabilitation plan, has not yet arrived, and there is no evidence to deem that it is necessary to claim in advance. Thus, the plaintiff's claim in this case is dismissed as

Judges Park Nam-ok