Korea Deposit Insurance Corporation (Law Firm Gapp, Attorneys Han-il et al., Counsel for defendant-appellant)

Mau Housing Co., Ltd. (Bae LLC, Attorneys Kim Jong-seok, Counsel for the plaintiff-appellant)

December 18, 2013

Jeju District Court Decision 2011Gadan20835 Decided June 29, 2012

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim is dismissed.

3. The plaintiff is responsible for total costs of litigation between the plaintiff and the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 2,935,366,559 won and 1,972,453,426 won among them at the rate of 21% per annum from May 30, 201 to the date of complete payment. It shall be paid within the limit of 4,300,000 won per annum.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On May 4, 2005, the Lest Mutual Savings Bank Co., Ltd. (hereinafter “Nonindicted Bank”) entered into a credit transaction agreement (hereinafter “the first credit transaction agreement of this case”) with the Development of Overseas Information Industry (hereinafter “Development of Overseas Information Industry”), setting the credit limit amount of 3.3 billion won, interest amount of 10.5% per annum, 21% per annum, 21% per annum, and 31% of the expiration date of the credit at May 9, 2006, respectively, and conducted a comprehensive passbook loan (Account number omitted). In this case, the Defendant jointly and severally guaranteed the loan obligations under the above credit transaction agreement against the Nonindicted Bank of Overseas Information Industry Development (hereinafter “instant joint and several surety 1”).

B. On June 30, 2006, the non-party bank agreed to extend the expiration date of the credit transaction agreement of this case from May 9, 2006 to May 9, 2007, and agreed to the joint and several surety delivery including the defendant.

C. On June 29, 2007, the non-party bank entered into a credit transaction agreement between the development of A.I.D. and the development of A.I.D. on May 9, 2008, with interest 10.5% per annum, with interest 21% per annum, and with 3.3 billion won per annum (hereinafter “the credit transaction agreement of this case”) and performed the repayment of loans under the first credit transaction agreement of this case. On June 29, 2007, the Defendant jointly and severally guaranteed the guarantee limit amount as to the obligations owed to the non-party bank pursuant to the second credit transaction agreement of this case (hereinafter “the joint and several surety of this case”).

D. The principal and interest of the loan based on the instant credit transaction agreement against the non-party bank of this case for the development of Amateur Industry is KRW 2,935,366,559 (= principal 1,972,453,426 + interest, etc. + KRW 962,913,133) as of May 29, 201.

E. Meanwhile, on April 16, 2010, Nonparty Bank was declared bankrupt as Jeju District Court No. 2010Hahap1, and the Plaintiff was appointed as the bankruptcy trustee.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 4, 5, 6, 8, 14, 16 (including each number, and the defendant did not affix a seal to Gap evidence No. 2-1, but the defendant's portion of the above document is recognized, and there is no evidence to reverse the whole document's authenticity and there is no other evidence to reverse it) and the purport of whole pleadings.

2. Determination as to the cause of action

According to the above facts, the defendant, who is a joint guarantor for the development of notified industry, is obligated to pay to the plaintiff, a bankruptcy trustee of the non-party bank of this case the interest of KRW 2,935,366,559 and the interest of KRW 1,972,453,426 as to the principal under the credit transaction agreement of this case, to the plaintiff, who is the trustee in bankruptcy of the non-party bank of this case at the rate of 21% per annum, which is the interest rate of delayed damages from May 30, 201 to the date of full payment, and to pay within the limit of KRW 4,30,00,000,

3. Judgment on the defendant's assertion

A. The defendant's assertion

1) The non-existence of a resolution of board of directors

The Defendant entered into a joint and several guarantee agreement of this case without undergoing a resolution of the board of directors according to the direction of the Nonparty bank, and the Nonparty bank, as a person who actually operated the Defendant, knew or could have known such circumstances, and thus, the joint and several guarantee agreement of this case is null and void as it violates Article 393(1) of the Commercial Act.

2) Claim on juristic act against social order

For the benefit of the non-party bank, the non-party bank received a loan under the No. 1 and No. 2 credit transaction agreement, etc. of this case from the related companies for the benefit of the non-party bank, and let the defendant stand a joint and several surety, and used the loan for the non-party bank. Accordingly, this constitutes an act of breach of trust against the defendant, and thus, the joint and several guarantee agreement of this case constitutes a juristic act which violates good morals and other

3) The assertion of conspiracy, false indication or false indication

Since the non-party bank from around 2004 to the non-party 2 who was its own employee entered into a credit transaction agreement of this case under the name of A.T. Industrial Development without any intent to receive reimbursement, and had the defendant enter into a joint and several surety agreement of this case in form. Thus, both the first and second credit transaction agreement of this case and the joint and several surety agreement of this case constitute a false indication or a false indication.

4) The assertion of unauthorized Representation

The co-defendant 2 of the first instance court, who signed the joint and several guarantee agreement on behalf of the defendant, retired from the representative director of the defendant on March 31, 2007, but only completed on November 21, 2007, and thus, the joint and several guarantee agreement of the second instance court on behalf of the defendant was null and void because it did not have the right to represent the defendant.

B. Judgment on the non-existence of a resolution of board of directors

1) Whether joint and several surety 1 and 2 of the instant case are subject to a resolution of the board of directors

A) Article 393(1) of the Commercial Act provides, “The disposal and transfer of important assets, borrowing of large-scale assets, the appointment or dismissal of a manager, and the establishment, relocation or closure of a branch, etc. of a company shall be subject to a resolution by the board of directors.” Thus, even where a company bears large-scale guaranteed liabilities due to joint and several surety acts in the name of the company, it shall be deemed large-scale assets as borrowing and subject to

B) Whether a large-scale loan constitutes “large-scale loan” ought to be determined depending on whether it is reasonable to entrust a representative director’s decision in light of various circumstances, such as the value of the relevant borrowed property, the size of the company, the current status of the company’s business or property, management status, the purpose and place of use of the relevant property, the company’s ordinary business relations, and the previous handling in the relevant company (see Supreme Court Decision 2012Da45443, Aug. 17, 2012,

Along with the following circumstances, the defendant's capital was 1.75 billion won, including the non-party bank around early 2004, and the defendant bears an obligation to pay 5.5 billion won to the financial institution, including the non-party bank. Since the defendant, around January 31, 2007, due to the increase in the amount of debt such as loans and joint and several surety loans held against the non-party bank as of January 31, 2007, approximately KRW 51.98 billion, and KRW 1.4 billion, the defendant's joint and several surety agreement should be additionally imposed on the non-party bank as security around January 31, 2007, considering that the defendant's appraisal of real estate such as the non-party bank's ○○○○ 37 billion, which was established as security around January 31, 2007, the defendant's loan and the non-party joint and several surety agreement should be made at KRW 1.55 billion,500,000,000.

C) The Plaintiff asserted to the effect that the credit transaction agreement of this case was concluded as a substitute exchange for the extension of the loan period of the first credit transaction agreement of this case. Thus, the second credit transaction agreement of this case is merely an extension of the guarantee period of the first credit transaction agreement of this case, and it is not necessary to go through the resolution of the Defendant's board of directors since it is not a new obligation. However, as examined below, it is reasonable to view the first joint and several guarantee agreement of this case as null and void because the Defendant did not go through a legitimate resolution of the board of directors at the time of the first joint and several guarantee agreement of this case. Thus, the Defendant is at risk of incurring new obligation due to the second joint and several guarantee

2) Whether the Defendant had passed a resolution of the board of directors at the time of the joint and several guarantee agreement in the instant case

In light of the joint and several surety 1, No. 9, 13, and 18 through 20 (including number 1) of the Defendant’s 1, 3, 4, 18, and 20 minutes of the board of directors meeting, the Defendant’s joint and several surety 2 was removed from each of the following circumstances. Nonparty 4, who was the Defendant’s director of the 10th trial and the 2nd trial meeting minutes of the 2nd trial meeting, and the Defendant’s joint and several surety 8th trial meeting minutes of the 1st trial meeting. Nonparty 2, who was the Defendant’s joint and several surety 10th trial meeting minutes of the 1st trial and the 1st trial meeting minutes of the 2nd trial meeting, were removed from the Defendant’s 10th trial meeting minutes of the 2nd trial, and it is difficult to view that the Defendant’s joint and several surety 2nd trial meeting minutes of the 2nd trial and the 38th trial meeting minutes of the 2nd trial.

3) Whether the non-party bank was aware or was aware of the defendant's failure in the resolution of the board of directors

In the event that the representative director of a corporation fails to undergo a resolution of the board of directors with respect to external transactions, and the other party to the transactions knew or could have known that there was no resolution of the board of directors, the transaction does not have effect on the other party to the transaction (see Supreme Court Decision 2012Da45443, Aug. 17, 2012, etc.).

In full view of the following circumstances as to this case, Gap evidence Nos. 18 through 22 of Eul, Eul evidence Nos. 2, 4, 6, 7, 9, 10, 14, 16, 17, 19, and 21 (including each number), and the testimony of non-party 3 of the witness at the trial, and some testimony of non-party 9 of the witness at the trial, which can be known to the whole purport of the arguments, the representative director of the non-party bank was established through the non-party 2 who was the head of the branch office of the non-party bank, assisting the non-party 1, and had the defendant obtain a loan from the non-party bank, and jointly and severally guaranteed it. Such decision was made by the non-party 1 and other persons related to the non-party 2 of the bank at the meeting of the board of directors under the control of the non-party bank committee, and the non-party 2 could easily be seen as having been aware of the same part of the resolution.

① In the prosecutorial investigation of the relevant criminal case against himself, etc. (the Jeju District Court Decision 2010Gohap67, 84 (Merger), Jeju High Court Decision 201No69, 85 (Merger), hereinafter “related criminal case”), Nonparty 1, the representative director of the bank, recommended Nonparty 1 to operate the Defendant and the Multi-Family Construction Corporation Co., Ltd. (the Non-Party 2, Nov. 9, 2004, changed the name of Non-Party 2 to Non-Party 31, 207) in light of the fact that Non-Party 2, from Jun. 1, 2004 to Sept. 2009, the Non-Party 2 stated that he participated in the management of the Defendant and Young-gu Integrated Construction, which was requested by Non-Party 1 and Non-Party 2, and the Non-Party 2, from Jul. 2004 to Jul. 31, 2007 (the representative director).

② A. The development of A.I.D. was established on April 8, 2005 immediately before the credit transaction agreement of this case. At that time, Nonparty 10, the representative director of A.I.D. at the time, Nonparty 2 was the friendship of Nonparty 11, Nonparty 2, Nonparty 2, in the prosecutor’s investigation of the relevant criminal case, Nonparty 2 entered Nonparty 3 as the representative director of A.I.D. on November 2004 (the witness of this case, who was in charge of the Defendant’s accounting, was entered as the representative director of the company), New A.I.D. (the principal debtor of credit transaction agreement of this case, which was tried in parallel with this case) stated that A.I.D. was P.D. established to obtain a loan from the bank of this case, in light of the fact that there was no business performance or construction result or construction result and new construction, etc. established for A.I.D. from the bank to obtain a loan from Nonparty 2.

③ 소외 2가 관련 형사 사건의 검찰 조사에서, 피고와 영륭종합건설을 실질적으로 운영한 사실을 인정하면서도, 소외 은행으로부터, 2004. 11.경 주식회사 천림건설, 새움건설 주식회사 명의로, 2006. 12. 14.경 새움건설 주식회사 명의로, 2006. 9. 4.경 주식회사 신제주건설 명의로 각 대출을 받을 당시 위 각 대출금에 대한 상환방법과 상환계획이 없었고, 소외 은행의 대표이사 소외 1이 자신에게 위 각 대출금의 상환을 약속하였기 때문에 소외 은행이 위 각 대출금을 상환할 것으로 예상하였다고 진술하였다{나아가 소외 2는 자신과 소외 1, 13에 대한 제주지방검찰청 2012년 형제15644호 특정경제범죄 가중처벌 등에 관한 법률 위반(배임) 등 사건에서, 피고의 관리인으로서 소외 은행의 지시에 따라 자금 집행 업무에만 관여하였을 뿐, 이 사건 제1 연대보증약정 등 근보증 계약서 작성에 관한 의사 결정 및 계약서 작성 과정에 직접 관여하지 않았다고 주장하기도 하였다}. 또한 소외 2는 수사기관에 소외 은행과 피고 또는 영륭종합건설 사이의 자금 집행 등에 관하여, ‘㉠ 영륭종합건설에서 차명대출자를 확보하여 서류 준비하여 소외 은행에 서류 접수 → ㉡ 소외 은행이 관리하고 있는 차명대출자 명의 계좌로 대출금 입금(소외 은행이 통장, 도장 보관) → ㉢ 소외 은행이 영륭종합건설에 자금요청서 접수 요구 → ㉣ 영륭종합건설이 자금요청서에 명세서를 첨부하여 제출 → ㉤ 소외 은행이 자금요청서 기재 금액을 인출하여 영륭종합건설에 지급 → ㉥ 영륭종합건설이 자금 집행’의 순서로 업무가 이루어졌다는 취지의 ‘자금흐름도’를 제출하였다. 이에 따르면 소외 은행이 차명대출자 명의의 계좌를 관리하면서 자신의 필요에 따라 영륭종합건설에 자금요청서를 접수하도록 요구하고, 차명대출자 명의의 계좌에 입금된 대출금을 영륭종합건설로 송금하여 집행하였다는 것이다.

④ Nonparty 3 testified that Nonparty 2 made a decision on the loan under the name of Nonparty 2 and the Defendant’s joint and several surety therefor by agreement with the management committee of Nonparty 3. Nonparty 2 instructed Nonparty 3 to prepare relevant documents, and the risk management team employees of Nonparty 2 asked Nonparty 3 to prepare relevant documents under the same instruction from the management committee of Nonparty bank. After the execution of the above funds, Nonparty 3 testified that Nonparty 3 submitted documents concerning the use of the relevant funds to the employees of Nonparty bank. Nonparty 9 was the witness of Nonparty 9 and at the time of Nonparty 1,00,000 won or more to the Defendant’s joint and several surety. However, Nonparty 3 testified that Nonparty 2 made a decision on the loan under the name of Nonparty 2’s management committee, but did not make a decision on the joint and several surety. In full view of these facts and these circumstances, the Defendant’s decision-making body on the joint and several surety appears to be the subject of the joint and several surety by Nonparty bank.

⑤ Nonparty 3: (a) instructed the employees of Nonparty 2 or Nonparty 2 to prepare the minutes of the board of directors in the same manner as indicated in paragraph (2) above; (b) the employees of Nonparty 2’s risk management team changed the text of the minutes of the board of directors by changing the text of the minutes of the board of directors; and (c) testified that the employees of Nonparty 2 or Nonparty 3 testified that there was no demand from the employees of the Nonparty bank for the original minutes of the board

4) Therefore, the Defendant’s assertion that the joint and several guarantee agreement of the instant No. 1 and No. 2 is null and void is with merit, since the non-existence of the board of directors’ resolution

The plaintiff asserts that even if the minutes of the board of directors were forged, the plaintiff could not oppose the plaintiff as a bona fide third party as a trustee in bankruptcy.

If a bankrupt is declared bankrupt through a false declaration of intent made by the bankrupt in collusion with the other party, the most recent claim belongs to the bankrupt foundation, and the bankrupt and the bankruptcy trustee, who are in an independent position and perform duties for the joint interest of all bankruptcy creditors according to the declaration of bankruptcy, is a third party under Article 108(2) of the Civil Act, which has a substantial new legal interest based on the legal relationship formed externally by such false declaration (see, e.g., Supreme Court Decisions 2002Da48214, Jun. 24, 2003; 2002Da35812, Jun. 27, 2003).

However, as in the instant case, as well as the absence of a resolution of the board of directors of a stock company, and as long as the non-party bank, who is the bankrupt, actively participated in the act of breach of trust, it is difficult to view that the trustee in bankruptcy should be protected as a bona fide third party prior to the defendant, who is the victim of the act of breach of trust, as shown below.

C. Determination on the assertion of legal acts against social order

If a director, etc. of a company extended a company fund to another person or provided a payment guarantee under the name of another person for such lending or payment guarantee because the other person has already lost his/her ability to repay his/her debt, and such lending or payment guarantee has been extended in full without taking reasonable measures to recover debt, such lending or payment guarantee is an act of making another person gain profit and causing damage to the company, and such other person is not an affiliated company of the financing company (see Supreme Court Decision 2013Do5214, Sept. 26, 2013, etc.).

On the other hand, where the other party to a transaction actively participates in the act of breach of trust, such as inducing or inducing the other party to the transaction, or participating in the whole process of the act of breach of trust, the contract entered into with the executor may be invalidated as it constitutes an anti-social juristic act (see Supreme Court Decision 2006Da47677, Mar. 26, 2009, etc.

With respect to this case, A.I.D., the principal debtor, and A.I.D. was made by Non-Party Bank and Non-Party 2 for the loan from the Non-Party Bank and did not have any business performance or business performance and did not have any property to be offered as security. The non-Party 1 was only liable for the loan under the credit transaction agreement of this case. Non-Party 1, the representative director of the Non-Party Bank, who actually operated the defendant through Non-Party 2, and made the defendant enter into the 1 and 2 joint and several surety agreement of this case for the development of A.I.D., taking into account the above facts, taking into account the degree of involvement at the time of the 1 and 2 joint and several surety agreement of this case, the non-party 1 and 2 obtained profits from others and suffered damage to the defendant, and the non-party 1 actively participated in the act of breach of trust by the representative director of the non-party bank, which constitutes a juristic act contrary to social order of Article 103 of the Civil Act.

Ultimately, without examining the remaining arguments of the defendant, the plaintiff's claim of this case against the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant shall be dismissed as it is without merit, and since the part against the defendant among the judgment of the court of first instance against the defendant is unfair with its conclusion different, it shall be revoked and the plaintiff's claim against the defendant shall be dismissed as per Disposition.

Judges Choi Yong-ho (Presiding Judge)