[1] Whether the Credit Management Fund is an employer in relation to the management affairs of the Chairperson where the Chairperson of the Credit Management Fund is appointed as a manager of the merchant bank to which the order to suspend its duties, etc. was issued (affirmative)

[2] Whether the subject of an order for extension of the maturity of commercial papers issued by the Minister of Finance and Economy pursuant to Articles 21 and 22 of the former Merchant Banks Act includes commercial papers sold to a customer and stored and collected by a merchant bank (negative)

[1] The Credit Management Fund is a juristic person established pursuant to the former Credit Management Fund Act (repealed by Article 2 of the Addenda to the Mutual Savings and Finance Act, Act No. 5501 of Jan. 13, 1998) for the purpose of protecting depositors by guaranteeing the payment of deposits to mutual savings and finance companies, merchant banks, etc. (hereinafter "mutual savings and finance companies, etc.") and conducting inspection and management normalization of mutual savings and finance companies, and for the purpose of contributing to the sound development of mutual savings and finance companies, the maintenance of credit order and the development of the national economy. According to the provisions of Article 24 of the same Act, it is designated as the business of the Credit Management Fund only as the business of the Mutual Savings and Finance. On the other hand, the purpose of the Credit Management Fund Act for the sound development of mutual savings and finance companies as well as the maintenance of credit order and the growth of the national economy. One of the business of the Credit Management Fund should be considered as the business of the Credit Management Fund's establishment of the Credit Management Fund and its assets as part of the business scope of the Credit Management Fund.

[2] According to Article 21 of the former Merchant Banks Act (amended by Act No. 5503 of Jan. 13, 1998), the Minister of Finance and Economy may supervise the business of a merchant bank and issue an order necessary for such supervision. According to Article 22(1)8 of the same Act, if a merchant bank violates this Act or an order issued under this Act, or is likely to undermine the public interest due to unsound financial status or business management, the Minister of Finance and Economy may order the suspension of all or part of its business for a fixed period of not more than six months. The order for extension of maturity of commercial papers issued by the Minister of Finance and Economy of Dec. 10, 1997 is an order for the extension of maturity of commercial papers issued by the financial market due to the aggravation of financial standing, etc., and if the merchant bank which received an order of suspension of business due to the aggravation of its existing maturity, it can be deemed that it constitutes an unlawful act of collection of corporate landslide if it immediately refuses to pay the maturity of commercial papers, and it constitutes an unlawful act of Article 138(1).

[1] Articles 1 and 24 of the former Credit Management Fund Act (repealed by Article 2 of the Addenda to the Mutual Savings and Finance Company Act, Act No. 5501 of Jan. 13, 1998), Article 756 of the Civil Act / [2] Articles 21 and 22(1) of the former Merchant Banks Act (amended by Act No. 5503 of Jan. 13, 1998)

Advanced Co., Ltd. (Law Firm Ba, Attorneys Yellow-sik et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm International, Attorneys Lee Won-chul et al., Counsel for the bankruptcy-related appellant)

Seoul High Court Decision 99Na35562 delivered on January 30, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first ground for appeal

The Credit Management Fund is a juristic person established under the former Credit Management Fund Act (repealed by Article 2 of the Addenda to the Mutual Savings and Finance Act, Act No. 5501 of Jan. 13, 1998) for the purpose of protecting depositors by guaranteeing the payment of deposits to mutual savings and finance companies, merchant banks, etc. (hereinafter referred to as "mutual savings and finance companies, etc."), conducting inspections and business normalization for mutual savings and finance companies, etc. (hereinafter referred to as "mutual savings and finance companies, etc.") and contributing to the sound fostering of mutual savings and finance companies, the maintenance of credit order, and the growth of the national economy. According to the provisions of Article 24 of the same Act, the affairs concerning the management normalization, such as guarantee of deposit payments, inspection, business guidance, business administration, etc., are designated as the duties of the Credit Management Fund for mutual savings and finance companies, on the other hand, the purpose of the former Credit Management Fund Act for the sound development of mutual savings and finance companies, maintenance of credit order, and the establishment and management of credit management funds as part of the business order (Article 7 of the Credit Management Fund).

Therefore, the fact-finding and decision of the court below that recognized the employer liability of the Credit Management Fund is just, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles on the user status of the Credit Management

The grounds of appeal disputing this issue are rejected.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below held on September 25, 1997 that the plaintiff's 2nd 1st 2nd 6th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.

In light of the records, the fact-finding and decision of the court below are justified, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on the interpretation of the order to extend the maturity of commercial papers.

The ground of appeal disputing this issue is rejected.

3. On the third ground for appeal

Article 21 of the former Merchant Banks Act (amended by Act No. 5503, Jan. 13, 1998) provides that the Minister of Finance and Economy may supervise the business of a merchant bank and issue an order necessary therefor. According to Article 22 (1) 8 of the same Act, if a merchant bank violates this Act or an order issued under this Act, or its financial status or business management is likely to undermine the public interest, the Minister of Finance and Economy may order the suspension of all or part of its business for a fixed period not exceeding six months. The Minister of Finance and Economy’s order for extension of the maturity of commercial papers issued by the Minister of Finance and Economy on December 10, 1997 is an order issued at the maturity of the financial market due to the aggravation of financial standing, etc., and if the merchant bank which received an order for suspension of business due to the aggravation of financial standing, etc. refuses to collect corporate landslides immediately, this constitutes an unlawful act of collection of commercial papers, and this constitutes a violation of Article 21(1)8 of the former Act and its violation of the Act.

This legal doctrine also provides that the effectiveness of the order shall be expressed if it is excluded from the subject of extension of maturity due to the relationship between the bill and the bill already sold to the customer among the bills held by the merchant bank at the time of issuance of the order for extension of maturity of commercial papers.

Therefore, the judgment of the court below that rejected the Defendants’ assertion of exemption is just, and there is no error of law by misapprehending the legal principles as to intentional or negligent acts, which are the elements for tort liability under Article 750 of the Civil Act or Article 750 of the Civil Act.

The grounds of appeal pointing out this issue are not accepted.

4. On the fourth ground for appeal

A. According to the reasoning of the judgment below, since a promissory note which has arrived at the maturity of 1.2 billion won is ordinarily paid with the bill, the exchange value of such promissory note is equivalent to its face value. Therefore, damages incurred by the trustee by illegally refusing to withdraw the promissory note at maturity as in this case is equivalent to its face value. The burden of proof on special circumstances exists that the exchange value of the promissory note reached maturity differs from its face value. On the other hand, the court below acknowledged that the amount of the deposit and the loan, including the outstanding loan of 7.5 billion won as of December 2, 1997, were not more than KRW 1,02.7 billion, and it was difficult for the company to recover the amount of the loan of 2.6 billion won, including the outstanding loan of 9 billion won, for the reason that the amount of the loan of 1.6 billion won was less than the total amount of the loan of 982 billion won and the amount of the loan of 1.6 billion won is more than the amount of the loan of 1.6 billion won.

B. However, we cannot agree with the fact-finding and decision of the court below for the following reasons.

According to the records (the fact-finding conducted on November 30, 1998, the record 167 pages). The total assets of the 3rd wave as of December 2, 1997, which were ordered to suspend the business of this case, were above 102.6 billion won as of December 2, 1997, but the total assets of the 1.02.6 billion won as of the 1.6 billion won were above 9 billion won as of the early 1MF, but it was difficult for the financial institution to raise funds at a high rate of 1.6 billion won as of the early 200 billion won as of the 19.6 billion won as of the 19.6 billion won as of the date of payment of the bill. It seems that it is difficult for the financial institution to repay the borrowed funds to the 19.7 billion won as a result of the extension of the 1.6 billion won redemption order as of the 19.7 billion won redemption order.

Therefore, in light of such objective circumstances, it is difficult to see that the bill of this case depends on its face value, and rather, it seems to be in accordance with the empirical rule to see that it is close to the liquidation value premised on the liquidation of the third-day spawn. On the grounds of its stated reasoning, the court below's decision that recognized the objective value of the bill of this case as equivalent to its face value is erroneous in failing to exhaust all necessary deliberations on the scope of damages, or in misunderstanding facts contrary to the rules of evidence, which affected the conclusion of the judgment.

The part of the grounds of appeal assigning this error is with merit.

5. Conclusion

Therefore, the lower judgment is reversed, and 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 Yoon Jae-sik (Presiding Justice)