Han Bank Co., Ltd. (Law Firm Square, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Gyeong & Yang, Attorneys Yang Ho-ho et al., Counsel for the plaintiff-appellant)

July 15, 2009

1. The defendant shall pay to the plaintiff 5,143,520,245 won as well as 5,020,743,717 won as 6.92% per annum from March 16, 2006 to September 15, 2006, 7.01% per annum from the next day to March 15, 2008, 4.6375% per annum from the next day to September 15, 2008, 4.93438% per annum from the next day to March 15, 2009, and 4.93438% per annum from the next day to August 19, 2009, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's primary claim and the remaining preliminary claim are dismissed.

3. Ten percent of the costs of lawsuit shall be borne by the plaintiff, while the remainder shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

From March 16, 2006 to the delivery date of a copy of the application for modification of the claim of this case, the Defendant paid 7.01% interest per annum to the Plaintiff, and 20% interest per annum from the next day to the date of complete payment (the Plaintiff’s primary repayment of the loan obligation, the first preliminary repayment of the deposit obligation, the second preliminary repayment of the obligation, and the third preliminary tort. However, each of the claims for the repayment of the loan obligation of the Plaintiff and the first preliminary repayment of the deposit obligation are “performance of the obligation recognized to the Defendant in light of the loan agreement and the letter of commitment,” and all of the claims are “performance of the obligation of the Defendant recognized to the Defendant in light of the loan agreement and the letter of commitment, whether the obligation of the Defendant recognized in light of the loan agreement and the letter of commitment is the obligation of the above claim, and whether the obligation of the deposit is the obligation of the Defendant, and thus, it cannot be deemed a separate claim guarantee contract as it constitutes a conjunctive tort. Accordingly, the Plaintiff’s primary obligation to compensate for damages due to an attack or breach of obligation.

1. Basic facts

The following facts may be acknowledged, regardless of the dispute between the parties, by taking account of the overall purport of the arguments in each entry in Gap evidence Nos. 1, 3, 4, 6, 9, 26, 2 and 10-1, 2, 16, 17-1, 21-4, or 21-1, 21-4, or it is obvious to this court:

A. Articles of incorporation and assets of the Korea Railroad Traffic Promotion Foundation

(1) On January 5, 2004, the Korea Railroad Traffic Promotion Foundation (hereinafter “railroad Foundation”) is a non-profit foundation established based on the basic property of the Korea Railroad Administration, which is a project for revitalization of the Seoul metropolitan area and the projects for the Korea Railroad Traffic, and a fund for the welfare of the Korea Railroad Administration for the free movement of the people, and the contributions of KRW 3,425,00,000 as the basic property. At the time of the establishment of the Railroad Foundation, the competent authority was the Korea Railroad Agency but the competent authority of the said Foundation was changed to the Ministry of Construction and Transportation as of January 1, 2005.

(2) Relevant articles of incorporation

The Railroad Foundation shall have not more than nine executives, who shall be appointed with the approval of the Administrator of the Korean National Railroad, the Deputy Director of the Korean National Railroad shall be the ex officio chairperson, the directors shall be appointed by the board of directors, the full-time directors shall be appointed from among the directors, who shall obtain approval from the President of the Korean National Railroad (Articles of Incorporation 8), and the board of directors shall report the matters to be resolved

The Railroad Foundation shall submit a business plan and budget to the Administrator of the Korean National Railroad and obtain approval (Articles of Incorporation Article 17), and the amount excluding the reserve for profit-making business of the next year and the operating expenses of the corporation shall be treated as a donation for the development of railroad transportation of the Korean National Railroad (Articles of Incorporation Article 18

(3) Capital and investment;

㈎ 2004. 12. 28. 증자를 거쳐 자본금이 5,925,000,000원이 되었다.

㈏ 철도재단은 소외 한국철도개발 주식회사에 510,000,000원, 소외 KTX관광레저 주식회사에 20,000,000원, 소외 주식회사 인터내셔널패스앤커머스에 2,627,500,000원, 소외 브이캐시 주식회사에 1,119,281,000원, 소외 한국철도통합지원센터 주식회사에 300,000,000원 합계 4,576,781,000원을 출자하여 위 각 회사의 주식(이하 ‘이 사건 출자주식’이라 한다)을 취득하였다.

(b) Issuance of certificates of commitment by the Korea National Railroad;

(1) On August 2004, the Korean Railroad decided to implement a genetic business for improvement of business management, and discussed with the Plaintiff on the method of borrowing funds necessary for the acquisition of the said shares from the Plaintiff on the condition of the KN’s “indirect Guarantee” by organizing a consortium with which the U.S. Petroleum Company and H&D Group have 35% shares, and by organizing a consortium with which the remaining 65% shares are held.

(2) On August 16, 2004, the Korean National Railroad delivered to the Plaintiff a letter of undertaking regarding the loan of funds of the Railroad Foundation (hereinafter “instant letter of undertaking”). The contents are as follows (the “Agency” refers to the Korea National Railroad).

㈎ 당청의 법적 지위가 공사로 변경되는 경우 동 공사는 별도의 조치 없이도 이 확약서에 의한 당청의 모든 의무를 승계하며 마치 동 공사가 이 확약서를 발행한 것과 마찬가지로 이 확약서상의 모든 의무를 준수할 것입니다.

㈏ 당청은 위 채무 상환완료시까지 차주의 존속·운영을 보장할 것입니다.

㈐ 당청은 차주가 모든 채무를 이행하기에 충분한 재무상태를 유지할 수 있도록 필요한 지원과 협조를 차주에게 제공할 것입니다.

㈑ 당청은 차주가 출자·설립한 주식회사{이하 ‘자회사’라 하고, 한국철도관광(주), (가칭)KTX멤버쉽주식회사, (가칭)역세권개발주식회사를 말함}의 발행주식을 49%이상 확보하며, 자회사로 하여금 동 채무의 지급을 보증하도록 할 것입니다.

㈒ 특히 차주가 대출약정서에 따른 의무를 기일내에 이행하지 못할 우려가 있다고 우리은행이 통보하는 경우, 당청은 차주의 채무상태가 대출약정 당시보다 악화되지 않도록 필요한 조치를 하며, 우리은행의 요구를 반영하여 자회사의 수익창출을 위한 출자 및 지원 등을 하기로 합니다. 또한 자회사로 하여금 우리은행의 차주에 대한 후순위대출, 차주에 대한 출자, 차주의 차입을 위한 담보제공 및 보증서 발급을 하도록 할 것입니다. 당청은 본 확약서의 체결, 교부 또는 이행은 본 확약서 제시당시 관련 법규정, 규정, 정관, 내부규칙 및 규정에도 위반하지 않고, 본 확약서의 체결, 교부 및 이행은 당청이 당사자이거나 당청의 재산을 구속하는 여하한 계약과도 저촉되지 않는 것임을 우리은행 및 대주들에게 보장합니다. 우리은행 및 대주들은 본 확약서상의 권리를 대출약정서상의 우리은행 및 대주들의 승계인, 인수인 또는 양수인에게 양도할 수 있습니다. 당청은 본 확약서상의 여하한 권리 및 의무를 양도, 이전 또는 달리 처분할 수 없습니다. 본 확약서는 한국법에 따라 해석되고 규율됩니다.

C. Provision of loans to the Plaintiff’s Railroad Foundation

On September 15, 2004, the Plaintiff loaned USD 6,500,000 to the Railroad Foundation at interest rate of USD 1) Libor +0.85%, overdue interest rate of KRW 0.85%, “Libor +1.85%”, “6 months from the date of withdrawal of the payment of interest, and three years from the date of withdrawal of the payment of interest,” respectively (hereinafter “instant loan”), and the Railroad Foundation withdrawn the above loan on the same day.

D. Establishment of the Korea Railroad Corporation

(1) On December 30, 2004, the Railroad Foundation donated the instant invested shares to the Korea Railroad.

(2) As the Korea Railroad Corporation was established on January 1, 2005 by the enforcement of the Korea Railroad Corporation Act, the property previously owned by the Korea Railroad Corporation was transferred to the defendant, and the invested shares of this case contributed to the Korea Railroad Corporation by investing in the Korea Railroad Foundation and being transferred to the defendant as investment assets together with shares invested by the Korea Railroad Corporation.

(3) On July 5, 2006, the Defendant invested in kind the investment assets to the Korea Railroad Corporation including the invested stocks and investment shares invested by the Korea Railroad Corporation in accordance with the provisions related to the Framework Act on Railroad Enterprise Development, the Korea Railroad Corporation, and the Act on Contribution in Kind in State-Owned Properties. However, the Defendant, who is obligated to perform the instant undertaking, did not follow the procedures related to taking over the Defendant’s obligations under the said undertaking to

(e) Loss of the benefit of time from the Railroad Foundation;

(1) On March 15, 2006, the Railroad Foundation did not pay USD 94,756.91, which is the interest on the instant loan, to the Defendant and lost the interest on the said loan obligation.

(2) The obligations of the instant loans are USD 3,969,684.53 as of July 15, 2009 + USD 3,874,927.62 as of September 16, 200 + USD 94,756.91 as of March 15, 2006 and USD 3,874,927.62 as of March 16, 2006. The agreed interest rate of USD 3,874,927.62 as of March 16, 2006 is 8.5% as of March 16, 2006 and 6.7% as of March 16, 2006 to September 16, 2006 + 7.5% as of March 16, 2006.

(f) Current financial status of the Railroad Foundation;

The Korean Railroad Foundation has contributed all contributed property to the Korean Railroad and has no property at present.

G. Progress of the relevant lawsuit

(1) On August 24, 2006, the Plaintiff asserted that the Korea Railroad Corporation has the loan claim of this case or the equivalent damage claim of the same amount, and disposed of them by offsetting them against the amount equal to the deposit return claim of the Korea Railroad Corporation. On August 25, 2006, the Korea Railroad Corporation notified the Plaintiff on August 25, 2006 that the deposit withdrawal due to the offset disposition was illegal withdrawal, sent a written notification demanding the Plaintiff to immediately return the above amount, and filed a lawsuit against the Plaintiff for the claim for refund of the deposit.

(2) The court of first instance (Seoul Central District Court 2006Gahap83098) rendered a judgment against the Plaintiff on May 6, 2008 that the Korea Railroad Corporation did not have a claim against the Plaintiff on the ground that the said lawsuit did not have a claim against the Plaintiff on the ground that the Korea Railroad Corporation did not incur a debt of the loan of this case, but did not bear a debt of the loan of this case. However, it cannot be recognized that the Korea Railroad Corporation succeeded to the above liability for damages or expressed its intent to assume the above obligation of the loan of this case.

(3) The Plaintiff appealed (Seoul High Court 2008Na53548) and the Defendant participated in the appeal for the Plaintiff at the above appellate court, but the dismissal of the appeal was sentenced on February 4, 2009, and the Plaintiff and the Defendant appealed against the above appellate court judgment (Supreme Court 2009Da19529), but the dismissal of the appeal was affirmed on June 11, 2009, and the judgment of the first instance court became final and conclusive around that time.

2. Summary of the parties' arguments

A. Summary of the plaintiff's assertion

(1) The Korea Railroad has actively participated in the genetic business through the Korea Railroad Foundation. Under the loan contract of this case, the Korea Railroad stated that the letter of commitment of this case is "Obligor" with the Korea Railroad Foundation. The letter of commitment of this case is written as a guarantee document, and Nonparty 1 (the Nonparty of the judgment of the Supreme Court) who signed the loan contract of this case was signed by himself in the position of the head of the Korea Railroad Development Institute, and the withdrawal of the loan of this case is impossible without the prior consent of the Korea Railroad Foundation. Thus, the actual borrower of the loan of this case is the Korea Railroad Foundation, not the Korea Railroad Foundation. Thus, the actual borrower of the loan of this case is the Korea Railroad, and even if not, the said letter of commitment delivered by the Korea Railroad to the Plaintiff is legally binding and has the same effect as the guarantee of the loan of the above loan of this case. Thus, the Plaintiff is primarily seeking the payment of the principal and interest of the loan of this case to the Defendant.

(3) 이 사건 확약서가 보증과 같은 효력이 없다 하더라도 적어도 철도청은 이 사건 확약서에 명시된 각종 의무{앞에서 본 1-나-(2)-㈎ 내지 ㈒ 의무}를 이행할 의무를 부담하는데 이를 불이행하여 원고에게 이 사건 대출원리금 상당의 손해를 입혔으므로, 원고는 제1 예비적으로 피고에 대하여 위와 같은 채무불이행을 원인으로 위 대출원리금 상당의 손해배상을 구한다.

(4) If the instant letter of undertaking is null and void, the Korea Railroad illegally delivers the said letter of undertaking to the Plaintiff and caused damages to the Plaintiff as to the principal and interest of the instant loan to the Korea Railroad Foundation. As such, the Plaintiff sought damages equivalent to the principal and interest of the principal and interest of the principal and interest of the instant loan from the Defendant as the second preliminary tort.

B. Summary of the defendant's assertion

(1) The parties to the instant loan contract are not the Korea Railroad Corporation.

(2) The instant promise is not legally binding.

(3) Even if the instant letter of undertaking has legal effect, it is invalid as an act of assuming debt obligations without the consent of the National Assembly under the former Budget and Accounts Act, or null and void as an evasion of the law to avoid the said Act, as well as null and void since the purpose and content of various obligations under the said letter of undertaking is irrecoverable or it fails to meet the lawful and effective requirements.

(4) Even if the Korea Railroad Corporation bears either the obligation under the loan agreement of this case or the obligation under the promise of this case, it is deemed that the act of the Korea Railroad Corporation which received the said obligation from the Korea Railroad Corporation as an investment in kind has been deemed to have been performed as an act of the Korea Railroad Corporation.

(5) Even if the Korea Railroad did not perform its obligation under the instant letter of undertaking, the Plaintiff neglected to secure other collateral under the instant loan agreement and thereby caused or expanded the Plaintiff’s damage. As such, there is no causal link between the Plaintiff’s nonperformance of obligation by the Korea Railroad and the Plaintiff’s damage, and even if such causal relationship is recognized, even if the Plaintiff’s failure to secure collateral as above, the amount of damage increased due to the Plaintiff’s failure to perform its duty

3. Judgment as to the main claim

A. As to the assertion of repayment of loan obligations

(1) The Railroad Foundation shall focus on the project of the Korea Railroad and the creation of funds for the welfare of the Korea Railroad. The Korea Railroad Foundation shall have 35% stake in the establishment of a consortium and shall receive the loan of this case from the Plaintiff as funds to take over Russia's Peasia's Peasia's Peasia's Peasia's Peasia's Peasia. The Foundation shall have not more than nine officers. The directors shall be the ex officio director. The directors shall be appointed from the board of directors. The directors shall be appointed from the board of directors, the directors shall be appointed from the board of directors. The board of directors shall report the business plan and budget to the Administrator of the Korea Railroad, and shall submit the business plan and budget to the Administrator of the Korea Railroad for approval. The amount of non-party 1's profits except for profit-making business reserve and the operating expenses of the Korea Railroad Foundation's Peasia's Peasia's Peasia's Peasia's Peasia.

(2) However, the Korea National Railroad and the Korea Railroad Foundation are similar to a subsidiary. Since it is inevitable that a parent company has a substantial human and capital combined relationship between the subsidiary and its officers and employees, it is not enough that the parent company's assertion of the subsidiary's own legal personality of the subsidiary's own legal personality constitutes abuse of legal personality in relation to the creditor of the subsidiary. At least, it is required that the subsidiary loses independent intent or existence and the parent company exercises complete control to the extent that it operates the subsidiary as a part of its own business. Specifically, it is necessary to establish objective marks such as property between the parent company and the subsidiary, business and external corporate transactions without clearly distinguishing between the parent company and the subsidiary, and it is used as a means to avoid the application of the law on the subsidiary's legal personality, or it has a strong control over the subsidiary's business size, but the parent company's scope of its capital has not increased accordingly (see, e.g., Supreme Court Decision 2006Da8164, Feb. 26, 2006).

However, comprehensively taking account of the overall purport of arguments in Gap evidence 2 and Eul evidence 4 and 6 (including the number of pages), the loan contract of this case is written by the borrower as a railroad foundation. Under the loan contract of this case, the "Oblior" includes the "the "the ground" and the "the ground of the "the ground of the loan", and the "the ground of the contract of this case" can only be recognized as having separate contents such as the "the ground of the transfer for security", the contract of stock transfer, the pledge, and the letter of guarantee, etc. in addition to the letter of commitment of this case. At the time of the preparation of the above letter of commitment, the Korean Railroad cannot pay the plaintiff a direct obligation, as well as a guaranteed obligation, and it is recognized that the railroad foundation with separate independent legal personality has been established.

In light of the above legal principles and the facts acknowledged, the Railroad Foundation is merely an organization used by the Korea Railroad as a means of avoiding legal application, and the actual borrower of the loan of this case is insufficient to recognize the Plaintiff’s assertion that it is the Korea Railroad. The Plaintiff’s assertion on this part is without merit.

B. As to the assertion of performance of security deposit obligations

(1) The interpretation of a juristic act is clearly confirming the objective meaning that the party gave to the act of indicating it, and it does not have to be cited in the phrase used in writing, but it is necessary to reasonably interpret the objective meaning that the party gives to the act of indicating it according to the contents of the document regardless of the party’s inner intent. In a case where the objective meaning is not clearly expressed by the party’s language and text, it shall be reasonably interpreted in accordance with logical and empirical rules, and social common sense and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the contents of the text, the motive and circumstance leading up to the juristic act, the purpose and genuine intent of the party to achieve the juristic act, transaction practices, etc. (see Supreme Court Decision 93Da32668 delivered on March 25, 1994, etc.).

On the other hand, in international financial transactions where a subsidiary company or a public corporation borrows money or bears other obligation to pay money, there are many cases where the parent company or the government provides a certain confirmation or guarantee to the lender. Such guarantee is generally made in the form of a guarantee with legal binding force. However, it is usually done only in the form of a guarantee, such as the honor or credit of the person who guarantees the performance. There is no legal binding force, and it can be done in the preparation and delivery of a document which includes the reference for the confirmation and maintenance of shares in the subsidiary company, namely, the reference for the confirmation and approval of the subsidiary company's contract, the awareness and approval of the subsidiary company's contract, and the declaration of policies to support the subsidiary's financial ability or ability to perform. The main contents are various as above, and it can not be readily concluded that the subsidiary company is not liable to guarantee the subsidiary's contractual obligation in accordance with the interpretation of the content and guarantee clause. At least, it is difficult to conclude that the subsidiary company concluded a guarantee contract on behalf of the parent company 200 or 2506.

(2) The instant letter of undertaking does not contain a statement that the Korea Railroad guarantees the borrower’s obligations, and the Korea Railroad does not provide a direct guarantee for the instant loans of the Korea Railroad Foundation, and the Plaintiff was not aware of the credit of the Korea Railroad Foundation, and thus, the Korea Railroad made a proposal to issue a letter of undertaking in the form of indirect guarantee, or it can be acknowledged by considering the overall purport of the arguments as a whole. In light of these facts, the said letter of undertaking does not provide that the Korea Railroad shall bear the obligation to perform the obligations of the Korea Railroad Foundation, which is the principal debtor, on behalf of the Korea Railroad Foundation, to discharge the obligations that the Korea Railroad Foundation, in lieu of the non-performance of obligations under the said letter of undertaking. Accordingly, this part of the Plaintiff’s assertion on a different premise is without merit.

4. Judgment on the first preliminary claim

A. Whether the damage claim was established

(1) The instant promise stipulates specific and specific obligations of the Korea Railroad, such as providing support necessary for the performance of the obligations of the Korea Railroad and ensuring that the financial status of the Korea Railroad Foundation does not deteriorate. The said promise stipulates that the said subsidiaries will secure more than 49% of the shares of three subsidiaries invested or established by the Korea Railroad Foundation and ensure that the said subsidiaries perform a specific act to secure the obligations of the instant loans of the Korea Railroad Foundation. The Korea Railroad attempted not to provide a direct guarantee for the said obligations of the Korea Railroad Foundation. Since the trust of the Korea Railroad Foundation is uncertain, the Plaintiff offered a letter of undertaking to issue the letter of undertaking in the form of indirect guarantee and made it an important condition for the Korea Railroad Agency to grant the letter of undertaking. The Plaintiff trusted the financial ability of the Korea Railroad Foundation, which is the issuer of the letter of undertaking, and carried out the instant loan to the Korea Railroad Foundation, or can be recognized by comprehensively taking into account the purport of the entire statements in subparagraphs B through 3 and 6 (including all the serial numbers).

In light of the above facts and the legal principles as seen above 3-B-1 (1), it is reasonable to deem that the instant promise has a legal effect to impose specific obligations, such as providing the Korea Railroad with support necessary for the Korea Railroad Foundation to repay the obligations of the instant loan, and allowing three subsidiaries invested and established by the Railroad Foundation to perform an act to guarantee the obligations of the Railroad Foundation.

(2) However, as seen earlier, the Korea Railroad Corporation is found to have failed to perform its duty to assign all of the obligations under the instant undertaking to the Korea Railroad Corporation, the obligation to provide support and cooperation necessary for the borrower’s financial status maintenance, and the obligation to guarantee the payment of the obligation to the subsidiaries. As such, the Defendant is liable to compensate for damages within the scope of proximate causal relation that the Plaintiff suffered as a result of the Korea Railroad Corporation’s failure to perform the said obligation under the said undertaking.

B. Judgment on the defendant's assertion

(1) Article 24(1) of the former Budget and Accounts Act (amended by Act No. 7347 of Jan. 27, 2005) provides that "where the State bears any obligation other than that within the scope of the amount of the expenditure budget or the total amount of the continuing expenditure, it shall obtain prior approval from the National Assembly as a budget." Article 110(1) of the same Act provides that "where the State intends to bear any obligation obligation, it shall obtain prior approval from the National Assembly." This is a mandatory law to prevent the State from consuming the budget without permission by the National Assembly under the control of the National Assembly. Since the Railroad does not obtain the National Assembly's resolution or approval at the time of the preparation of the letter of undertaking, it is invalid that any obligation in violation of the above provisions, which is a mandatory law, violates the provisions, and thus, is invalid as an evasion of law to avoid the application of the above provisions, which is a mandatory law.

On the other hand, Article 24 (1) of the former Budget and Accounts Act provides that "where the State intends to bear a guaranteed obligation, except as otherwise provided by an Act and within the scope of the expenditure budget or the total continuing expenditure, the State shall bear a guaranteed obligation," or Article 110 (1) of the same Act provides that "where the State intends to assume a guaranteed obligation, the State shall bear a guaranteed obligation," all of which are "the obligation to guarantee the continuation and operation of the Railroad Foundation until the completion of the repayment of the obligation," "the obligation to provide necessary support and cooperation, so that the Railroad Foundation may maintain its financial status sufficient to meet all of its obligations," "the obligation to secure 49% or more shares issued by the subsidiaries to guarantee the payment of the obligation," "It is difficult to acknowledge that the above obligation is not directly incidental to the Plaintiff's subordinated loan to the borrower, investment in the borrower, the borrower's loan, the obligation to provide a guaranteed obligation and to provide a guaranteed obligation," and it is not possible to acknowledge that the State is obligated to discharge the obligation under the former Budget and Budget."

(2) The Defendant asserts that the obligation of the Korea Railroad Corporation to succeed to all of the obligations under the instant letter of undertaking, the obligation of the subsidiaries to guarantee the payment of the loan obligation of this case, the obligation of the borrower's subsidiaries to make investments in the borrower, the obligation of the borrower to provide security to borrow loans and to take various measures is an excessive restriction on the borrower's freedom, and thus, it is not possible for the Korea Railroad Corporation and its subsidiaries to be able to enforce the obligation of the borrower or the Korea Railroad Corporation and its subsidiaries. The obligation to guarantee the continuation and operation of the borrower by the date of the repayment of the loan of this case cannot be possible because the Korea Railroad Corporation cannot guarantee the existence and operation of the Railroad Foundation, which has separate legal personality, and the obligation of the borrower to provide necessary support and cooperation for the maintenance of the borrower's financial status is not determined and definite. Thus, all of the obligations

However, the above circumstance alleged by the defendant alone is that the purpose of various obligations under the letter of commitment of this case can not be realized and confirmed, or it cannot be said that the mandatory rules and good morals and other social order are violated, and there is no other evidence to recognize it. Thus, the above argument by the defendant is without merit.

(3) The defendant asserts that Article 6 (1) of the Addenda of the Korea Railroad Corporation Act provides that "the Corporation shall succeed to the rights and obligations arising from the assets invested in kind at the time of the establishment of the Korea Railroad Corporation, and Article 23 (2) of the Framework Act on Railroad Industry Development provides that "the State shall make an investment in kind in the Korea Railroad Corporation in accordance with the railroad asset disposal plan, notwithstanding the provisions of the State Property Act," and Paragraph (3) of the same Article provides that "the Korea Railroad Corporation shall succeed, by universal title, to the rights and obligations related to the operating assets invested in kind, notwithstanding the provisions of Paragraph (2)."

살피건대, 철도청이 철도재단의 이 사건 대출과 관련하여 원고에게 교부한 이 사건 확약서에, “당청은 차주가 출자·설립한 주식회사{한국철도관광(주), (가칭)KTX멤버쉽주식회사, (가칭)역세권개발주식회사를 말함}의 발행주식을 49%이상 확보하며, 자회사로 하여금 동 채무의 지급을 보증하도록 할 것입니다”라고 기재되어 있는 사실, 철도청은 2004. 12. 29. 철도재단으로부터 이 사건 출자주식을 기부채납받았다가 한국철도공사가 설립된 후 이를 다시 한국철도공사에게 현물출자한 사실은 앞에서 본 바와 같다.

Meanwhile, Article 4 (1) of the Korea Railroad Corporation Act provides that "the State shall invest an operating asset under Article 22 (1) 1 of the Framework Act on Railroad Industry Development in kind in the Corporation, notwithstanding the provisions of the State Property Act," and Article 6 (1) of the Addenda of the same Act provides that "the Corporation shall succeed to the rights and obligations arising from the assets invested in kind in accordance with the provisions of Article 4 at the same time as the establishment of the Corporation, and Article 22 (1) of the Framework Act on Railroad Industry Development shall classify the railroad assets of the Korea Railroad and the Korea High-Speed Railroad Corporation in promoting structural reform of the railroad industry as follows:

However, the following facts acknowledged as above: ① the rights and obligations related to the operating assets of the Korea Railroad Corporation, which are succeeded to by the Korea Railroad Corporation as an investment in kind, are the rights and obligations of the Korea Railroad Corporation related to “the operating assets of the Korea Railroad Corporation”; ② the obligation of the Korea Railroad Corporation to pay to the Plaintiff in relation to “the assets of the Korea Railroad Foundation” should be deemed as the obligation of the Korea Railroad Corporation; ② the investment shares of this case donated to the Korea Railroad Corporation are ultimately invested in kind to the Korea Railroad Corporation; ② the above investment shares are merely the damage claims for the nonperformance of the Plaintiff’s above obligation or the obligation to pay the loans to the Korea Railroad Foundation; ③ The above provisions purport not to comprehensively transfer all the rights and obligations of the Korea Railroad Corporation, but to transfer only the part related to the operating assets of the Korea Railroad Corporation, which were invested in kind, and thus, it is difficult to interpret as limited. ④ The Defendant’s obligation of the Korea Railroad Corporation to pay damages to the Plaintiff under the above obligation of the Korea Railroad Corporation to the Korea Railroad Corporation, which is not the obligation of the Korea Railroad Corporation to pay the above obligation.

(4) Article 6(2) of the Addenda of the Korea Railroad Corporation Act provides, “The acts performed by the Korea Railroad or by the Korea High-Speed Construction Authority established under the Korea High-Speed Construction Authority Act prior to the establishment of construction with respect to assets invested in kind pursuant to Article 4, and acts performed against the Korea High-Speed Construction Authority or the Korea High-Speed Construction Authority shall be deemed as acts of construction or construction.” Thus, the Defendant asserts that the act of assuming debt obligations under the instant commitment by the Korea Railroad Corporation is deemed as acts of the Korea Railroad Corporation

Although Article 6 (2) of the Addenda to the Korea Railroad Corporation is stipulated as above, it is difficult to see that the Korea Railroad Corporation's act of bearing debt under the instant promise is related to the "property invested in kind" from the Korea Railroad Corporation on the grounds as seen in the above paragraph (3) and there is no other evidence to acknowledge it. Thus, the defendant's assertion is without merit.

C. Scope of damages

(1) Comprehensively taking account of the facts acknowledged as above, the Korea Railroad, an affiliated organization of the defendant, caused losses that the plaintiff could not recover the principal and interest of this case due to the failure of the Korea Railroad to perform its duty under the present letter of undertaking. Thus, the defendant is obligated to pay damages for delay calculated by the agreed interest rate as to the remaining principal and interest of this case and the remaining principal and interest of the loan in compensation for damages to the plaintiff (Therefore, the defendant's assertion to the effect that there is no causation between the plaintiff and the non-performance of the said letter of undertaking and the plaintiff's damages, and that the damages for delay equivalent to the statutory interest under the Civil Act should be recognized as to the remaining principal and interest of this case).

(2) As to this, the Defendant asserts that, even though the Plaintiff had been able to secure other collateral under the instant loan agreement, the damages should be reduced as it caused or expanded the Plaintiff’s damages.

According to the evidence of evidence Nos. 1, 2, 15 of evidence Nos. 2 and 16, 17-1, 9 through 11 of evidence Nos. 1, 17-1, and 17 of the loan contract of this case, the loan contract of this case is established with Korea Korea Ltd. [which is established by KCO and Railroad Foundation to take over the shares of Russia as well as with other investors] and the shares of Korea Trosia Co., Ltd. (KCO) acquired by Korea Trosia Co., Ltd. (KCO) and the shares of Korea Trosia Co., Ltd. (KCO) and the shares of Korea Trosia Co., Ltd. are established, and the transfer contract of this case is established with Korea Korea Ltd. (KCO), and it is recognized that the Korea Railroad Foundation, upon request of the plaintiff, has its subsidiaries issue a guarantee bond of the loans of this case, Korea Inc. 2, 2001.

However, in full view of the above evidence, i.e., the following circumstances: ① Korea Railroad Corporation (KCO) was established by making a lump sum payment of 1,00,000,000 capital in the sub-lease month, and the shares of the company cannot be deemed as valuable as security; and ② the Plaintiff did not acquire shares of Korea Ltd. (KCO) due to the Plaintiff’s refusal of approval from the Government of the Russian federal government; ② the Plaintiff’s failure to obtain shares of Korea Railroad Foundation Korea Ltd. (KCO) by 35% of the shares of Korea Ltd. (KCO) is deemed insufficient as a subsequent security; and ② the Plaintiff’s demand to take over shares of Korea Ltd. (KCO) by the Korea Railroad Foundation (KCO), such as sub-loan month, and the Plaintiff’s demand to obtain shares of 95% from the Korea Railroad Foundation (KCO), and the Plaintiff’s demand to obtain the above shares of Korea Railroad Foundation (KCO) and the Defendant’s demand to obtain damages from the Plaintiff’s subsidiaries or its subsidiaries for investment in kind 206.

(3) Therefore, the defendant is obligated to pay the amount of USD 3,969,684.53 as damages to the plaintiff ($ 3,874,92.62) as 2.0 per annum from September 16, 2005 to March 15, 2006 the agreed interest rate of USD 94,874,927.6% per annum from the day following the 206th annual interest rate of USD 96.3% per annum from the day after the 206th annual interest rate of the plaintiff's interest rate of USD 3,97.6% per annum from the day after the 206th annual interest rate of the plaintiff's interest rate of USD 1,97.6% per annum for damages to the above 30.5% interest rate of USD 96% per annum per annum, 1,295.7% per annum for damages to the plaintiff's interest rate of USD 96.7% per annum, 97% per annum per annum

5. Conclusion

Therefore, the plaintiff's preliminary claim is accepted within the above scope of recognition, and the plaintiff's primary claim and the remaining preliminary claim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Egreei (Presiding Judge)

Note 1) For the period corresponding to the interest period in question, the interest rate determined by the lender at 11:00 a.m. on the date of the determination of interest prior to the commencement of the interest period at 11:00 a.m. on the average of the interest rates publicly notified in the LIBR page of the LIBR page. The interest determination date here refers to the two business days prior to the date of the execution of the deposit transaction by USD 1 in the market between banks from the first day of the interest period from the first day of the interest period, and in relation to the LIBR, the banking business day means the date of the transaction of US deposit in the London bank market (Article

Note 2) The second business day from the first day of the period for calculating damages for delay; hereinafter the same shall apply.

3) The Defendant appears to have invested in kind to the Korea Railroad Corporation without any intention to perform his/her duty under the instant undertaking, and the Korea Railroad Corporation seems to have no intention to accept the fulfillment of its duty under the said undertaking.