Whether the guarantee fees, bonds, and debentures whose maturity comes after the bankruptcy is declared against the bankrupt by the person who has guaranteed the principal and interest obligation of the company issued by the company before the bankruptcy, and the advance claim for the interest bonds and overdue bonds with respect to the guarantor whose maturity comes after the date of the bankruptcy is declared, and whether the interest bonds with respect to the substitute payment and overdue bonds

Among the bonds held against the bankrupt by a person who has paid the principal and interest of the company issued by the company prior to the bankruptcy, (1) claims for guarantee fees, the maturity period of which comes after the date of the bankruptcy declaration, for the future claims against the bankrupt, which have already been determined and conclusive on the future amount of claims on property arising from the cause prior to the bankruptcy declaration, and thus, the total amount of such claims shall be deemed the due date at the time bankruptcy is declared pursuant to the provisions of Articles 14, 16, 18 (2) and (1), and subparagraph 7 of Article 37 of the Bankruptcy Act, and the portion (amount equivalent to the intermediate interest) equivalent to the total amount of interest calculated at the statutory rate from the time of the bankruptcy declaration to the due date, except the subordinate bankruptcy claims pursuant to Article 37 subparagraph 7 of the same Act, constitutes a general bankruptcy claim, and (2) claims for advance reimbursement of interest on the bonds, the maturity period of which arrives after the bankruptcy declaration date, constitutes the interest on subordinated bonds and the interest on subordinated bonds, which fall under Article 37 subparagraph 7 of the same Act.

[1] Articles 14, 16, 18, 21(1), and 37 of the Bankruptcy Act; Article 442(1)2 of the Civil Act

Mod Securities Co., Ltd. (Seoul General Law Firm, Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

The bankruptcy trustee of the bankrupt national rental company (Attorney Han-chul, Counsel for the plaintiff-appellant)

Seoul District Court Decision 99Gahap99101 delivered on June 27, 2000

1. The judgment below is modified as follows.

(a)The plaintiff shall fix the bankruptcy claim of 60,675,837 general bankruptcy claims against the bankrupt national sirens corporation and of 2,480,29,912 subordinated bankruptcy claims of 60,675,837.

B. The plaintiff's remaining claims are dismissed.

2. The total costs of the litigation shall be twenty minutes, one of which shall be borne by the defendant, and the remainder by the plaintiff respectively.

1. Purport of claim

The plaintiff shall confirm the bankruptcy claim of KRW 2,543,116,119 against the bankrupt national rental company (hereinafter referred to as the " bankrupt").

2. Purport of appeal

The part of the judgment of the court below against the defendant is revoked and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are either disputed between the parties, or there is no conflict between the parties, or there is a evidence of No. 1, No. 2, No. 2, No. 1-1, No. 2, and No. 2 through No. 5.

(a)Before the bankruptcy (hereinafter referred to as "Before the bankruptcy") paid the principal of 10 billion won on July 28, 1997, interest rate of 11 billion won per annum, interest rate of 11% per annum from October 28, 1997 to July 28, 2000 each three months after maturity. The principal shall be paid in 7.7 billion won per each month from July 28, 2000, and the principal shall be paid in 10 billion won per annum, interest rate of 11% per annum, interest rate of 11% per annum, and every three months from November 4, 1997 to maturity of 4 August 4, 2000, each of the above principal shall be paid in 275 billion won each, and the payment guarantee of the Plaintiff's corporate bonds issued each of the above principal shall be paid in full at the maturity of 8.7 billion won each (hereinafter referred to as "each of the above bonds issued each of the above bonds").

B. In the payment guarantee contract for the principal and interest of the corporate bonds of this case concluded between the plaintiff and the company prior to the bankruptcy, the company prior to the bankruptcy shall pay to the plaintiff the guarantee fee at the fixed date for each interest payment (Article 3(1)). In the event that the payment of the guarantee fee is delayed, the company shall pay the guarantee fee at the interest rate for the overdue loan (Article 3(4). In the event that the plaintiff paid the bond to the bondholder on behalf of the company prior to the bankruptcy due to the circumstance that the company prior to the bankruptcy is unable to pay the principal and interest as soon as possible, the company prior to the bankruptcy shall additionally pay the interest in accordance with the same interest rate for the substitute payment (Article 15). The company prior to the bankruptcy enters into the bankruptcy, etc., and even if part of the principal and interest of the bonds are not paid within the fixed period (Articles 10(2) and 9). The company prior to the bankruptcy shall lose the benefit of the fixed period, and the plaintiff may immediately exercise all rights, such as claiming the payment of the bills or checks

C. However, on April 28, 1999, the company before the bankruptcy took the status of insolvency. The plaintiff paid interest on the corporate bonds of this case including interest of KRW 275 million on April 28, 1999 and interest of KRW 275 million on May 4, 1999 on the corporate bonds of this case on April 28, 199, respectively on behalf of each of the bondholders. On the other hand, the company before the bankruptcy made payment on April 28, 1999 on April 28, 199, on April 28, 199, each of the guarantee fees for the corporate bonds of this case, including guarantee fees of KRW 7,089,897, KRW 897 on April 7, 199, and KRW 7,167,808 on May 8, 199.

D.Before the bankruptcy, the company was declared bankrupt by the Seoul District Court on June 16, 199, and the defendant was appointed as the bankruptcy trustee.

(e)the interest rate of loans in arrears by financial institutions from April 28, 1999 to June 15, 199 shall be 18 per annum;

F. On July 7, 199, the Plaintiff reported KRW 23,382,780,622 in total, as indicated in the part of the report (attached Form 1) as a bankruptcy creditor, ① guarantee fee claim on the corporate bonds of this case, ② indemnity claim on the principal and interest of the corporate bonds of this case, ③ interest claim on substitute payment with 21% per annum, and damages for delay on the guarantee fee in arrears.

G. On July 30, 199, the Defendant raised an objection against this, as stated in the part of the investigation date (attached Form 1) conducted on July 30, 1999, as follows: ① all of the guarantee fee claims the maturity of which comes after the date of the declaration of bankruptcy; ② part of the advance indemnity claim against the interest on the company bonds the maturity of which comes after the date of the declaration of bankruptcy; ③ part of the amount exceeding the amount by the rate of 6% per annum, which is the legal interest rate of each commercial, out of the interest claim on substitute payment and the damages for delay against the interest claim on overdue payment; ③ part exceeding the amount by the rate of 6% per annum, which is the legal interest rate of each commercial; and KRW 2,543,116,119, the sum of the portion in which the first day was included (attached Form 1

2. Determination:

The plaintiff asserted that the amount of KRW 2,543,16,19 of the total amount of each of the claims described in the objection in the above investigation date is a general bankruptcy claim and sought the confirmation thereof as the lawsuit in this case. Bankruptcy claims under the Bankruptcy Act are categorized as bankruptcy claims with priority (Article 32 of the Bankruptcy Act (hereinafter referred to as the "Act") and subordinate bankruptcy claims (Article 37 of the Act) and other general bankruptcy claims that do not fall under those of the Act, and the priority order shall be examined in order as to whether the bankruptcy claims in this case are general bankruptcy claims or subordinate bankruptcy claims.

(a) A guarantee fee claim the maturity of which arrives after the date bankruptcy is declared;

(1) The nature of the above guarantee fee claim

The above guarantee fee claims are claims against the bankrupt in the future, for which the future amount of claims to be paid and the time for payment has already been determined as property claims arising from causes arising before the bankruptcy is declared. Thus, when bankruptcy is declared pursuant to the provisions of Articles 14, 16, 18(2) and (1), and 37 subparag. 7 of the Act, the total amount of such claims shall be deemed the due date when the bankruptcy is declared pursuant to the provisions of Article 14, 16, 18(2) and (1) of the Act.

(2) The junior bankruptcy claim portion

In light of the nature of the above guarantee fee claim, the portion equivalent to the total amount of interest calculated at the statutory rate from the time bankruptcy is declared to the time of each payment period (hereinafter referred to as the "interim interest amount") is subordinate bankruptcy claim pursuant to Article 37 subparagraph 7 of the Act, and the defendant's assertion pointing this out is with merit.

(3) The calculation rate of the amount equivalent to the intermediate interest

Meanwhile, the defendant asserts that the above interim interest should be calculated by applying 11% per annum, which is the agreement between the plaintiff and the bankrupt rather than 6% per annum as stipulated in the Commercial Act. However, according to the above facts, the meaning of the above agreement is not applicable to the issue terms of bonds, but to the interest rate on the principal of bonds between the plaintiff and the bankrupt and the bondholder. Thus, the statutory interest rate under Article 37 subparagraph 7 of the Act is 6% per annum under the Commercial Act in this case where both the plaintiff and the bankrupt are merchants. Thus, the above argument by the defendant is without merit.

(4) The theory of lawsuit

Therefore, in relation to the guarantee fee claim that comes due after the date of the declaration of bankruptcy, the plaintiff has the general bankruptcy claim of 52,056,761 won and the subordinated bankruptcy claim of 1,532,788 won as stated in the calculation table (attached Form 2).

(b) Claims for advance reimbursement with respect to interest on corporate bonds the maturity of which arrives after the date of bankruptcy declaration; and

(1) According to the facts found above, the Plaintiff, a trustee of the principal and interest of the instant corporate bonds, exercised the right of reimbursement against the principal and interest of the corporate bonds against the bankrupt. The Defendant recognized the portion of the prior reimbursement claim against the principal and interest of the corporate bonds that the Plaintiff has to pay to the bondholder at maturity as a general bankruptcy claim against the principal and interest of the corporate bonds accrued before the date of the declaration of bankruptcy. However, the Defendant raised an objection on the ground that the prior reimbursement claim against the interest of the corporate bonds, the maturity date of which comes after

(2) The plaintiff, the guarantor of the principal and interest of the corporate bonds of this case, can exercise his right as bankruptcy creditor against the bankrupt estate as to the "total amount of the right to indemnity that may be exercised against the bankrupt in the future pursuant to the main sentence of Article 21(1), Article 16, Article 18(2) and Article 18(1) of the Act, Article 442(1)2 of the Civil Act, and the meaning of "total amount of the right to indemnity" refers to the total amount of the existing claim when

However, since the defendant's objection to the above advance payment claim is an advance payment against the bankrupt after the bankruptcy is declared, the ground for such advance payment claim is the interest on the company bonds after the bankruptcy is declared, and the interest on the company bonds falls under the subordinated bankruptcy claim as provided in Article 37 subparagraph 1 of the Act, unlike the principal of the company bonds. Thus, the above advance payment claim is also a subordinate bankruptcy claim.

(iii)The ground is clear in light of the purport of the proviso of Article 21(1) of the Act. In other words, Article 21(1) of the Act provides that "where several debtors are required to discharge all obligations, and all or some of them are declared bankrupt, if all or one of them are to exercise their rights in the future against the bankrupt, any person holding the right to indemnity that may be exercised in the future against the bankrupt may exercise his rights as bankruptcy creditor against each bankrupt estate with respect to the total amount of their claims: Provided, That the same shall not apply where the creditor exercises his rights as bankruptcy creditor with respect to the total amount of the claims, and the proviso of the above provision provides that "if the creditor exercises his rights as bankruptcy creditor with respect to the whole amount of the claims, the guarantor is unable to exercise his rights as bankruptcy creditor against the bankrupt estate." The purport of the proviso of the above provision is that the guarantor's prior claim against the bankrupt estate is substantially identical or similar to that of the guarantor's prior claim against the bankrupt estate. Therefore, it cannot be more authorized that the guarantor in charge of bankruptcy claims has any capacity than that.

However, due to the nature of the bankruptcy procedure to ensure the fair and equal satisfaction of creditors by promptly converting all assets of the bankrupt and distributing bankruptcy claims from the proceeds from the realization of the bankrupt's proceeds, determining who is a general bankruptcy claim or a subordinate bankruptcy claim depending on who is reported among the bondholders or guarantors may result in an unreasonable result detrimental to the equity of other bankruptcy creditors because it is likely to undermine the interests of other bankruptcy creditors.

(4) However, if the plaintiff does not actually have the right to the advance claim for the interest on the corporate bonds the maturity of which comes after the date of adjudication of bankruptcy as subordinate bankruptcy claims, then the plaintiff suffers loss to pay the interest on the corporate bonds the maturity of which comes after the declaration of bankruptcy. However, in light of the characteristics of the bankruptcy procedure and the purport of the above provision, it is inevitable to restrict the rights of the right of indemnity recognized under the Civil Act and to bear loss to the guarantor.

(5) Sub-committee

The interest rate on corporate bonds whose maturity comes after the date bankruptcy is declared shall be KRW 2.75 million as shown in the calculation table (attached Form 3), and the amount equivalent to the Plaintiff’s claim for advance reimbursement. As such, the Plaintiff shall have a bankruptcy claim of KRW 2,478,76,124, which remains after deducting the Defendant’s total amount of KRW 271,232,876 ( KRW 14,657,534 + KRW 126,575,342) recognized as the date of investigation (as it is a subordinate bankruptcy claim, it is unnecessary to calculate the amount equivalent to the interim interest and the amount pursuant to Article 37 subparag. 7 of the Act on the premise that it is a general bankruptcy claim).

(c) Interest claim on substitute payment and delay claim on the guarantee fee in arrears by the day before the date of declaration of bankruptcy.

(1) On April 28, 199 and May 4, 1999 for the company prior to the bankruptcy, the Plaintiff paid 275 million won each interest on the corporate bonds of this case on behalf of the company prior to the bankruptcy. Accordingly, on April 28, 1999 and May 4, 1999, the Plaintiff paid 18% interest bonds at the rate of 18% per annum from the respective date to the date the bankruptcy is declared, and on April 28, 199 and May 4, 199, the interest bonds at the rate of 19% per annum and the guarantee fees of KRW 7,089,897 and KRW 7,167,808, each of which was overdue by the company prior to the bankruptcy, shall have the damages for delay on the basis of the agreed delay damages rate of 18% per annum from the following day to the date the bankruptcy is declared. This is not a general bankruptcy claim.

(2) The plaintiff asserted that the interest rate of the financial institution's overdue loan from April 28, 1999 to June 15, 1999, which was from the date of the declaration of bankruptcy, is 21% per annum, but there is no evidence to acknowledge it. Meanwhile, the defendant claims that the portion in excess should be excluded from bankruptcy claim because the defendant is obliged to calculate the interest claim and the damages for delay in accordance with the ratio of 6% per annum under the Commercial Act, but the part in excess should be excluded from bankruptcy claim. However, as seen earlier, the fact that the company prior to bankruptcy agreed to pay the plaintiff the agreed interest rate and the damages for delay in accordance with the ratio of 18% per annum to the substitute payment and the fees for delay. Thus,

(3) Although the Defendant asserts that the part corresponding to April 28, 1999 and May 4 of the same year, the first day of the interest claim on substitute payment, among the interest claim on substitute payment, should be excluded, the interest claim on substitute payment occurred from the date of the payment on substitute payment, which is without merit.

(4)Indivate

Therefore, a claim for interest claim on substitute payments and a claim for late payment on the guarantee fee in arrears from the date preceding the date bankruptcy is declared ( June 15, 1999) £«(7,00,000 won x 0.18 x 49/365 won x 0.18 x 0.18 x 0.18 x 0.18 x 48/365) £«(275,000,000 x 0.18 x 00 x 0.18 x 43/365 ) £«(7,167,808 x 0.18 x 0.18 x 42/365) ? 8,619,076 (12,79,989 , 974 - 297 - 365) recognized by the defendant belongs to a bankruptcy claim.

3. Conclusion

Therefore, the plaintiff has a general bankruptcy claim amounting to KRW 60,675,837 ($ 52,056,761 + interest accrued and delay damages claim amounting to KRW 8,619,076) against the bankrupt and a subordinate bankruptcy claim amounting to KRW 2,480,29,912 ($ 1,532,788 out of guarantee fees claim + KRW 2,478,767,124 out of guarantee fees claim). Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed for reasons without any justifiable reason. Since the judgment of the court below which partially different conclusions, it is so decided as per Disposition by the assent of the defendant's appeal to accept part of the defendant's appeal and to change the judgment below as above.

Judges Lee Jong-soo(Presiding Judge)