The Bank of Korea, Inc.

C. The Specialized Co., Ltd. (Law Firm Squanon, Attorneys Lee Jae-Gyeong et al., Counsel for the plaintiff-appellant)

Sick-in (Attorney Choi Jong-soo et al., Counsel for the defendant-appellant)

Hyundai Construction Co., Ltd. (Law Firm White, Attorney Lee Gyeong-soo, Counsel for defendant-appellant)

April 7, 2004

Seoul Central District Court Decision 2001Da3106 Delivered on October 22, 2002

1. The part of the first instance judgment against Defendant Hyundai Construction Co., Ltd is revoked.

2. The successor's primary claim against the defendant Hyundai Construction Co., Ltd. falling under the above revocation part is dismissed.

3. The successor intervenor's appeal against the defendant Hyundai Construction Co., Ltd. and the appeal against the defendant Syman employed by the defendant are dismissed.

4. At the preliminary claim of the succeeding intervenor added at the trial of the trial against the defendant Hyundai Construction Co., Ltd., the defendant Hyundai Construction Co., Ltd., upon the arrival of January 1, 2005, the defendant Hyundai Construction Co., Ltd. will pay to the succeeding intervenor the amount of KRW 1.90 million per annum from January 13, 2001 to the date of full payment.

5. The succeeding intervenor's remaining conjunctive claims against Defendant Hyundai Construction Co., Ltd. are dismissed.

6. Of the costs of lawsuit, the costs of appeal incurred between the succeeding intervenor and the defendant No. 50 are assessed against the defendant No. 50, and the total costs of the lawsuit incurred between the succeeding intervenor and the defendant Hyundai Construction Co., Ltd. are assessed against the succeeding intervenor and the remaining costs of the lawsuit are assessed against the succeeding intervenor, respectively.

7. Paragraph 4 can be provisionally executed.

8. Of the judgment of the court of first instance, the part ordering the payment of money to the Defendant Military Service was modified by the reduction of the claim in the trial as follows.

The defendant Analianian shall pay to the succeeding intervenor 2 billion won and 6% per annum from January 13, 2001 to May 31, 2003, and 20% per annum from the next day to the full payment.

1. Purport of claim

A. The primary purport of the claim

The defendants pay 2 billion won and 6% per annum from the day after the copy of the complaint of this case was served to May 31, 2003, and 20% per annum from the next day to the day of full payment (the part of the succeeding intervenor's claim for damages for delay in the trial) jointly and severally with the co-defendant of the first instance trial, Co-defendant, Ltd. (hereinafter referred to as "Cheongyang-ri Co., Ltd.") (the succeeding intervenor reduced the part of claim for damages for delay in the trial).

B. Preliminary claim against Defendant Hyundai Construction Co., Ltd. (hereinafter “Defendant Hyundai Construction”).

On January 1, 2005, the defendant Hyundai Construction shall pay to the succeeding intervenor the amount of KRW 2 billion and the amount equivalent to 6% per annum from the day following the delivery of the complaint of this case to the day of full payment (the succeeding intervenor added a preliminary claim at the trial).

2. Purport of the succeeding intervenor’s appeal

The part of the judgment of the court of first instance against the succeeding intervenor shall be revoked, and the defendant Hyundai Construction shall pay 8.1 million won to the succeeding intervenor jointly and severally with the Cheongyang-ri Co., Ltd. and the defendant Annick Labor and 8.1 million won per annum from the next day of service of the copy of the complaint of this case to May 31, 2003 and 20% per annum from the next day to the date of full payment.

3. Purport of the defendants' appeal

A. The purport of the appeal by the defendant Annick Labor Union

Among the judgment of the court of first instance, the part of the judgment against the defendant's injury against the defendant's injury shall be revoked, and the successor's claim against

B. Purport of appeal by Defendant Hyundai Construction

The part against Defendant Hyundai Construction among the judgment of the first instance is revoked, and the successor's claim corresponding to that part is dismissed.

1. Facts of recognition;

The following facts are either disputed between the parties, or acknowledged by Gap evidence Nos. 1, 2, 3, 4, 8, and 9-1, 2, and 3 of Gap evidence Nos. 1, 2, and 3.

A. Recognizing that the General Terms and Conditions for Credit Transactions apply to the Cheongyang-ri Bank Holdings, on October 26, 1996, the Plaintiff borrowed a loan from the Plaintiff to pay in installments the amount of KRW 2 billion per annum and the repayment method for five years with a three-year grace period (hereinafter “instant loan agreement”). The Defendants approved that the above terms and conditions apply on the same day, and provided a joint collateral guarantee within the limit of KRW 2.6 billion with respect to the obligations continuously incurred under the instant loan agreement (hereinafter “instant collateral guarantee agreement”).

B. Articles 3(2) and 7(2) of the General Terms and Conditions for Credit Transactions provide that where a debtor delays in discharging his/her obligations to a bank, the debtor shall pay damages for delay in accordance with the interest rate set by the plaintiff to the plaintiff, and where the debtor delays in paying interest for a certain number of times or a certain period, the debtor shall lose the benefit

C. Since September 1, 1999, the Cheongyang Free Trade Association delayed the payment of interest on the instant loan from September 1, 199, and eventually, on December 1, 1999, lost the benefit of the due date for the instant loan obligations. The overdue interest rate determined by the Plaintiff is 19% per annum from January 29, 199.

D. On October 19, 2001, the Plaintiff transferred the principal and interest of this case to the succeeding intervenor, and notified the Defendants of the transfer on October 26, 2001.

2. A claim against the defendant's Ansan;

A. Determination on the cause of the claim

According to the facts of recognition under Paragraph (1) above, as a joint and several surety for the debt of the loan of this case, Defendant Synsan is liable to pay damages for delay at each rate of 20% per annum under the Commercial Act from January 13, 2001 to May 31, 2003 as the next day of service of a copy of the complaint of this case, and from the next day to the full payment date as stipulated under the Special Act on the Promotion, etc. of Legal Proceedings, as sought by the succeeding intervenor jointly and severally with Cheongyang-rico and the Defendant Hyundai Construction.

B. The assertion and determination of the defendant Symians

(1) Defendant Sick-in's assertion

Defendant Shovahian entered into the instant contract with the Plaintiff to secure the instant loan obligation against the Plaintiff at the time of the instant loan. Since then, the representative director of Shovahian was replaced from Defendant Shovahian to Shovahian, the Plaintiff and Defendant Shovahian entered into an agreement on the instant contract, and even if the instant contract was not agreed on, the Defendant Shovahian may terminate the instant contract on the grounds of change of circumstances. Thus, Defendant Shovah’s disease may terminate the instant contract on the grounds of change of circumstances. Accordingly, Defendant Shovah’s disease, who was dismissed from the office of the representative director, notified the Plaintiff of the change of the Plaintiff’s guarantee to Ehhee.

(2) Determination

(A) Whether the instant contract is terminated by agreement

According to the statements in Eul, Eul's evidence Nos. 1 and 2, the defendant Syllian was appointed as the representative director on Aug. 5, 199 as the representative director on the same day. Accordingly, the defendant Syllian changed to the plaintiff on Sep. 3, 1999, and requested the plaintiff to take follow-up measures. After which the plaintiff did not take any measures, the Syllia requested the plaintiff on Oct. 7, 1999 to change the joint and several surety for the debt of this case from the defendant Syllian to Eyptian and again requested again. However, according to Gap's evidence No. 7 and the testimony of Han-hee's witness, the plaintiff's request for replacement of the loan of this case to the plaintiff on Oct. 7, 199, the plaintiff cannot be seen as being a joint and several surety, and the plaintiff's request for cancellation of the loan of this case cannot be seen as being a joint and several surety, which is a joint and several surety of the plaintiff's loan of this case.

(B) Whether the Defendant’s right to terminate the contract is recognized

1) If a person who has become a guarantor for a company's obligations arising from continuous transactions between a company and a third party has been forced to retire from the position of a director, then the contract of guarantee may be terminated on the ground of the fact that the situation at the time of the formation of the contract of guarantee takes place (see Supreme Court Decision 98Da11826, Jun. 26, 1998). However, in cases where a director of the company entered into a contract of guarantee for a company's obligations of which the amount of debt and the due date are specified, the contract of guarantee may not be terminated unilaterally by a director who is a guarantor on the ground of changes in circumstances such as continuous guarantee or comprehensive collateral guarantee (see Supreme Court Decision 9Da25938, Dec. 28, 199).

2) On October 26, 1996, Cheongyang-ri borrowed KRW 2 billion from the Plaintiff on the loan, repayment method, and repayment period specified by the Plaintiff on the loan, as well as Defendant Bohuri-ri’s joint and several guarantee obligations of the above loan to the Plaintiff of Cheongyang-ri-U.S... As seen earlier, the collateral obligations under the instant collateral guarantee contract entered into between the Plaintiff and Defendant Bohuri-ri-ri-U.S. are not the indefinite obligation arising out of the so-called continuous transactional relationship, which increases or changes within the limit of the agreed amount, but the debt amount and the repayment period are specified.

3) Ultimately, even if the defendant Annived Co., Ltd. concluded a collateral guarantee contract with the plaintiff due to the status of the representative director of Annived Co., Ltd., the defendant Annived Co., Ltd. cannot terminate the instant collateral guarantee contract solely on the ground that he resigned from the office of representative director as long as a collateral guarantee contract was concluded with respect to the confirmed debt whose principal obligation and due date are specified. Therefore, the

3. Claim against Defendant Hyundai Construction

A. Judgment on the main claim

(1) The successor intervenor and defendant Hyundai Construction Claim

The succeeding intervenor sought performance against the defendant Hyundai Construction on the premise that the repayment period of the guaranteed obligation of the defendant Hyundai Construction has arrived around, and the defendant Hyundai Construction sought performance of the guaranteed obligation of the defendant Hyundai Construction: ① At the time of entering into the instant collateral security contract with the defendant Hyundai Construction, the plaintiff agreed to exempt the succeeding intervenor from the obligation of the guaranteed obligation of the defendant Hyundai Construction upon the establishment of the right to collateral security in the name of the plaintiff with respect to the building; and subsequently, the defendant Hyundai Construction did not have the obligation to pay the guaranteed obligation of the loans of this case; ② even if the defendant Hyundai Construction is liable to pay the guaranteed obligation to the defendant Hyundai Construction, the creditor Council composed of the financial institutions, including the plaintiff, was postponed until December 31, 2004, and thus, the succeeding intervenor's claim cannot be accepted.

(2) As to the assertion on extinguishment of the guaranteed obligation

(A) Facts of recognition

The following facts are either in dispute between the succeeding intervenor and the defendant Hyundai Construction, or in relation to Gap evidence 1, Eul evidence 2-2, Eul evidence 1, 2, Eul evidence 3-1, 2, 3, Eul evidence 4, Eul evidence 5-1 through 7, Eul evidence 6-1 and 2, and Eul evidence 6-1 and 2, and the testimony of the first instance court witness.

1) On October 14, 1996, a resolution was made on October 14, 1996, on the condition that, in order to redevelopment a part of a conventional market in the vicinity of the Cheongyang-ri-ri-ri-ri-ri-ri-ri-si, to build a new construction of a main complex building and to obtain the construction fund, the board of directors was held to obtain a loan from the Plaintiff, but the security and guarantee conditions related to the loan are “to guarantee from Defendant Hyundai Construction at the time of debt collection, and to convert the preservation registration into a collateral to the property right of the Cheongyang-ri-ri-ri-ri-ri-si at the time of registration for preservation.”

2) On October 26, 1996, Defendant Hyundai Construction held a board of directors to build a major complex building, and jointly and severally guaranteed the obligation to pay loans to the Plaintiff of Cheongyang-rico. However, the guarantee period is “from the date of the record of loans to the date of the establishment of a new mortgage after the completion of a new building.” On the same day, the board of directors resolution stating the above resolution was issued to the Plaintiff along with the collateral guarantee contract.

3) After completion of the main complex building with 21 stories above ground and 7 stories above the ground on the ground surface of 7,866.8 square meters in Dongdaemun-gu Seoul, Dongdaemun-gu, Seoul, (hereinafter “instant building”), the Plaintiff, based on the resolution of the board of directors on October 14, 1996 of the Cheongyang-si, and the resolution of the board of directors on October 26, 1996 of the Hyundai Construction and the resolution of the board of directors on December 10, 1997, Cheongyang-rico promised promised between the Plaintiff to convert the security of the instant loan obligations into the building at the time of preservation registration after completion of the instant building, and the conditions for the guarantee of the Defendant Hyundai Construction stipulated that the establishment of the instant building under the name of the Plaintiff 1, 197, 197, 2, 3, 198, 3, 198, 3, 3, 198.

4) On December 26, 1997, Cheongyang-ri had completed the registration of initial ownership in its name with respect to the instant building. On January 15, 1998, the registration of initial ownership was completed with respect to each of the instant stores by the Plaintiff on January 15, 1998.

5) However, on February 19, 198, after the establishment of the above right to collateral security, the Plaintiff requested the Korea Appraisal Board to appraise each of the instant stores on 1998.2.1 billion won, and the appraisal price was assessed as 1.41 billion won, and it was determined that the value of collateral falls short of the value of collateral. On February 23, 1998, the Plaintiff demanded the Korea Appraisal Board to provide an additional security of 1.19 million won (2.6 billion won - 1.41 billion won) to the Cheongyang-ri Free Trade Association.

6) Meanwhile, Article 6 of the instant contract between the Plaintiff and the Defendant Hyundai Construction provides, “In the event that it is determined that the act of return does not adversely affect the realization of the right of reimbursement due to the subrogation of the guarantor, such as obtaining the consent of the guarantor, or substitution of security above an equivalent value, or substitution of security in proportion to the amount of replacement of a guarantor with or above equal value, or cancellation of security or termination of guarantee, etc., the act of return may be changed or terminated.”

(B) Determination

The Plaintiff and Defendant Hyundai Construction, upon entering into the instant guarantee agreement, agreed to extinguish the guaranteed debt of the Defendant Hyundai Construction when collateral security was established under the Plaintiff’s name with respect to the instant building, was examined as to whether the Defendant Hyundai Construction agreed to extinguish the guaranteed debt of the instant case, and the Defendant Hyundai Construction delivered the Plaintiff a resolution of the board of directors of the Defendant Hyundai Construction on October 26, 1996, along with the instant collateral guarantee agreement (Evidence A-2). However, it cannot be deemed that the Plaintiff received the said resolution of the board of directors, and that the Plaintiff consented to the contents set forth in the resolution of the board of directors, on the ground that the Plaintiff did not receive the said resolution of the board of directors, and there is insufficient evidence to acknowledge it solely on the evidence Nos. 7-1, 2, and 8, the evidence No. 9-1 through 8, and the testimony of the first instance court testimony, and there is no other evidence to acknowledge it.

On the other hand, it is reasonable to view that there was an implied agreement between the Plaintiff and the Defendant Hyundai Construction, on December 10, 1997, on the grounds of the resolution of the board of directors of the Cheongmullco and the Defendant Hyundai Construction, by demanding the Cheongmullco to the Defendant Hyundai Construction on December 18, 1997, the establishment of the right to collateral security in the name of the Plaintiff with respect to each of the instant stores.

However, the terms and conditions of the above (A)-6) require a substitution of security above an equivalent value to change or terminate another guarantee or security (the same shall apply in terms of protecting the right to indemnity of Defendant Supin Union, which is another joint and several surety for the instant loan obligation). ② If the Plaintiff acquires a physical collateral, regardless of the value of the collateral, if it is interpreted to the effect that the instant collateral security contract is terminated as a matter of course, regardless of the value of the collateral, even if the Plaintiff acquires a right to collateral without value of the collateral, it is reasonable to view that the Plaintiff would be exempted from the guaranteed obligation of Defendant Hyundai Construction within the scope of the value of the collateral.

Thus, Defendant Hyundai Construction is jointly and severally liable to pay to the succeeding intervenor 1.99 million won (the maximum guarantee amount of KRW 2.6 billion - the security value of KRW 1.41 million) and damages for delay (the Defendant Hyundai Construction is not liable to guarantee since the guarantee period of the instant contract has already expired due to the establishment of the instant right to collateral security). However, as seen earlier, the Plaintiff and Defendant Hyundai Construction agreed, as seen earlier, to the effect that the Plaintiff’s acquisition of collateral security by impliedly, may exempt the Defendant Hyundai Construction from the guarantee obligation within the scope of the secured value, and that the guarantee period cannot be deemed to have expired, on the grounds that the part exceeding the secured value is not deemed to have expired).

(3) As to the assertion of deferment of payment period

(A) Facts of recognition

The following facts may be acknowledged either in dispute between the succeeding intervenor and the defendant Hyundai Construction, or in Eul's evidence 10, and Eul's evidence 11-1 and 11-2, based on the whole purport of the pleadings.

1) On November 3, 200, at the Credit Risk Assessment Council, Defendant Hyundai Construction was established by the Credit Risk Assessment Council consisting of 35 financial institutions, including the Plaintiff, as well as 35 financial institutions.

2) On November 28, 2001, the Creditor Council passed a resolution on November 28, 2001 on the postponement of the repayment period and the change in the interest rate as follows, and the Plaintiff approved the resolution.

(1) A claim filed by a financial institution for the performance of a guaranteed obligation prior to the construction of Hyundai Construction shall be withheld until December 31, 2004 (paragraph 1-4 (d)), and (2) the applicable interest rate on domestic won loans held by a creditor financial institution shall be the general Prime - Rate (limited to the general Prime - rate (current 9%) in a financial institution without a rate), but where the initial agreed interest rate is below the above interest rate set forth in the initial agreement, the initial agreement shall apply, and where the rate exceeds 10% a year, 10% a year shall apply, and 7.5% a year shall apply after January 1, 202, and the period of application shall be determined by the Council from the date of resolution of the Council until December 31, 2004 (subparagraph 1-5).

(B) According to the facts of recognition under Paragraph (a) above, since according to the resolution of the creditor financial council of creditor financial institutions, the maturity period for the guarantee obligation against the plaintiff of defendant Hyundai Construction has been postponed until December 31, 2004, the succeeding intervenor's primary claim premised on the arrival of the maturity period for the guarantee obligation of defendant Hyundai Construction is without merit.

B. Determination on the conjunctive claim

According to the facts acknowledged in paragraphs (1) and 3-A (a) above, in this case where the defendant Hyundai Construction is disputing the existence and scope of the guaranteed obligation, the succeeding intervenor needs to claim in advance the performance of the guaranteed obligation against the defendant Hyundai Construction with the lawsuit for performance in the future. Thus, upon the arrival of January 1, 2005, the defendant Hyundai Construction has a duty to pay damages for delay at the rate of 6% per annum under the Commercial Act from January 13, 2001 to the succeeding intervenor jointly and severally with the defendant Annivecoia, the defendant Annivecoia, and the defendant Anniveco, and the succeeding intervenor, as requested by the succeeding intervenor from January 13, 2001 to the full payment date.

4. Conclusion

Therefore, the succeeding intervenor's claim against the defendant Sick-in, which is added at the trial of the court below, shall be accepted within the scope of the above recognition, and the main claim and the remainder of the conjunctive claim against the defendant Sick-in shall be dismissed for the reasons that there are no reasons. Since the part of the first judgment's claim against the defendant Sick-in, the appeal against the defendant Sick-in is dismissed, and the main claim against the defendant Sick-in-in-the-fact is justified for the conclusion, the successor's appeal against the defendant Hyundai-in-the-fact is dismissed, and the successor's appeal against this is dismissed, and the successor's main claim against the defendant Hyundai-in-the-fact shall be dismissed, and the part of the main claim against the defendant Hyundai-in-the-fact shall be dismissed, and the successor's main claim against the defendant Hyundai-in-the-fact shall be dismissed, and the part of the first judgment ordering the payment of the amount for the defendant Sick-in-the-fact's main claim shall be dismissed as ordered by the reduction of the claim at the trial.

Judges Lee Jong-tae (Presiding Judge)