2014Da33413 Loans

The Bankruptcy Trustee of the Bankrupt Bank;

A

Busan District Court Decision 2013Na8929 Decided April 25, 2014

August 28, 2014

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

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

A. On June 30, 2009, the Pakistan Savings Bank (the Busan District Court (the Plaintiff was declared bankrupt on October 30, 2010, and the Plaintiff was appointed as bankruptcy trustee; hereinafter the same shall apply) set loans to the Defendant on June 30, 2009 at the interest rate of KRW 2.5 billion per annum, KRW 10 billion per annum, KRW 25 billion per annum, interest payment date, KRW 30 per month, and November 7, 2010.

B. As the Defendant paid only interest up to July 29, 2009 and did not pay interest after August 2009, the Pakistan Savings Bank sent a notice to the Defendant on September 15, 2009, that it would proceed with compulsory execution due to delay of the obligation to pay interest (hereinafter referred to as “instant notice”), and the above notice reached the Defendant on September 19, 2009. On November 11, 2009, the Defendant repaid KRW 35,617,187 with interest or delay compensation, together with the loan principal amounting to KRW 2.5 billion.

D. Meanwhile, Article 7(2)1 of the General Terms and Conditions on Credit Transactions applicable to the Bank of Pakistan and the Defendant provide that when an obligor delays the payment of interest for one month continuously from the time when the obligor is obligated to pay the interest, etc., the obligee shall, as a matter of course, lose the benefit of the relevant obligation and shall pay it. In this case, the Savings Bank, the obligee, shall notify the obligor of the fact that the obligor is delayed in the performance of obligation at least three business days prior to the date when the obligor loses the benefit of time, and if the obligor fails to notify by three business days prior to the date when the obligor loses the benefit of time, it shall lose the benefit of time at the expiration of three business days from the date when the notice was actually delivered

2. According to the above facts, the Defendant did not pay interest on August 30, 200 (from July 30, 2009 to August 29, 2009) from August 30, 2009 to September 29, 2009, which was the due date. The Defendant shall be deemed to have lost the Defendant’s interest on the above loan by reaching the Defendant from September 30, 2009 to September 30, which included the delayed payment of interest and the fact that the interest resulting therefrom would be lost.

Nevertheless, the court below rejected the plaintiff's assertion that, under Article 7 (2) 1 of the General Terms and Conditions for Credit Transactions, in order for the Pakistan Savings Bank to lose the benefit due to the defendant's delinquency in payment of interest in August 2009, the defendant should delay payment of interest for one month from August 29, 2009, which was the date of payment of interest, and on the premise that the Pakistan Savings Bank shall notify the defendant of the delay in payment of interest and the loss of the benefit due thereto after the lapse of one month, the defendant shall not be deemed to have lost the benefit due after September 19, 2009, which was the date when the notice of this case was delivered to the defendant before the lapse of the above one month, and on the premise that there was no evidence to acknowledge that the defendant had notified the defendant of the delinquency in payment of interest and the loss of the benefit due to such delay in payment from August 209. In so doing, the court below erred by misapprehending the legal principles on the interpretation of the terms and conditions, thereby affecting the conclusion of the judgment.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Kim Yong-deok

A person shall be appointed.