2020Na10815 Demurrer against distribution

Korea Technology Finance Corporation

Law Firm Seowon, Attorney Seo-won

Attorney Shin Shin-soo et al.

A Limited Liability Company

Law Firm Doz.

Attorney Exclusive-use

Attorney Kim Jong-sik, Counsel for the plaintiff

Daejeon District Court Decision 2018Gahap101577 Decided January 10, 2020

May 21, 2020

June 18, 200

1. The defendant's appeal is dismissed.

2. The defendant bears the costs of appeal.

1. Purport of claim

Of the distribution schedule prepared by the above court on May 16, 2018, the third-order dividend amount of KRW 1,357,292,985 against the defendant shall be corrected to KRW 1,070,989,932, the fourth-order dividend amount of KRW 202,035,144 to KRW 177,331,728, and the amount of dividends against the plaintiff to KRW 31,00,469, respectively.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Quotation of the first instance judgment

The reasoning of this Court concerning this case is that the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for the following modifications or supplement of judgment (other grounds asserted by the defendant in the appeal of this Court do not differ significantly from the argument of the court of first instance, and even if all evidence presented in the court of first instance are examined, the judgment of the court of first instance is legitimate).

2. Parts in height:

In the first instance judgment, the term "D" (hereinafter referred to as "D") of the first instance judgment Nos. 16 and 17 shall be deemed "D (hereinafter referred to as "D") and the Small and Medium Business Corporation." On the second instance judgment, the term "D substitute branch head" of the first instance judgment No. 19 shall be deemed "D and Small and Medium Business Corporation." On the third instance judgment, the term "D" of the first instance judgment No. 3 shall be deemed "D and Small and Medium Business Corporation."

The first list of the third part of the judgment of the court of first instance is as follows.

A person shall be appointed.

The first-B(b) of the judgment of the court of first instance (from Nos. 5 to 15 of the judgment of the court of first instance) shall be chips as follows:

B. D, such as D's establishment of a mortgage, (1) establishment of a mortgage on December 9, 2013, D' 464,400,00 won of the maximum debt amount as to each of the real estate of this case 1 through (3), (2) establishment of a mortgage on June 30, 2014, the establishment of a mortgage on 1,656,000 won of the maximum debt amount as to each of the real estate of this case 1 through (5) (the establishment of a mortgage on 1 through (3) of this case was completed on December 9, 2013, the establishment of a mortgage on 1 to 30,000 won was registered in order of 1 to 30,000, the separate list of No. 40 to 40,606, the separate list of No. 1 to 30,014, and the separate list of No. 1 to 40,60,016, of each of the real estate mortgages of this case (the separate No. 2, No. 30, 4,406.

1) On October 28, 2016, the Plaintiff rendered to D total amount of KRW 898,423,385 with respect to loans of KRW 1,23,385 (i.e., KRW 412,126,561 + KRW 349,702,831 + KRW 349,702,831 + KRW 136,593,993 for loans of KRW 4), and on April 12, 2017, the Plaintiff subrogated to the Small and Medium Business Corporation for KRW 546,097,000 for loans of KRW 3 (hereinafter “the subrogated payment”). If the first instance judgment of KRW 5,20, the “the same date” in Chapter 20 is deemed “the same date”.

In the first instance judgment, Nos. 6, 20 and 21 of the first instance judgment, “each of the instant loans of KRW 1,761,482,768” shall be deemed “principal 1,761,482,788 won,” and “the instant loans of KRW 1,2, and 4.”

3. Supplementary parts

A. The defendant asserts that the guarantee agreement of each of the instant guarantees is aimed at securing the security interest of the instant building and the instant machinery, and that the repayment of loans 2 and 4 may be limited to the dividends on the instant building and machinery, since the purpose of securing the security interest of the instant building and the instant machinery is not to secure the right to collateral security established on each of the instant real estate listed in paragraphs 1 through 3 of the instant building (hereinafter referred to as “the instant land”). The defendant argues that the repayment of loans 2 and 4 may be limited to the instant building and the dividends on the instant machinery. In full view of the evidence as seen above and the following circumstances recognized by the underlying facts, repayment of loans 2 and 4 shall be covered by the dividends on the instant land. Accordingly,

1) According to the terms and conditions of each guarantee and the wording of the guarantee agreement for loans 2 and 4, the subject matter of the instant 2 and 3 collateral security includes the instant land in addition to the instant building and the instant machinery, and the subject matter of the instant 2, 4 collateral security obligations fall under the instant 2 and 3 collateral security obligations. It is difficult to interpret the same differently from such wording solely on the sole basis of the Defendant’s assertion.

2) D was predicted that the Plaintiff may be transferred part of the instant real estate or the instant machinery, including the instant land, in accordance with the legal doctrine of the mortgagee’s subrogation, if the Plaintiff performed the guaranteed obligation prior to the enforcement of the right to collateral security. D actually transferred part of the instant land to the Plaintiff, including the instant land. D cannot be viewed as having expressed an intention that the repayment of the loans Nos. 2 and 4 may be appropriated only for the dividends on the instant building and machinery.

3) There is an express or implied special agreement that the security right to the instant land should be terminated. There is no evidence to acknowledge that there is no such special agreement.

4) As above, it cannot be said that both the explicit language or the parties’ internal deliberation intent was limited to the payment of 2/4 loans to the instant building and the instant machinery dividends.

B. The defendant asserts that the principal of the second loan, 38,211,900 won, 15,000,000 won, and interest after purchase, which the plaintiff subrogated, shall be paid in preference to the defendant. However, since the above amount has already been repaid by the plaintiff, the defendant may not be paid in preference to others. Rather, according to Article 2 of the Agreement on the Transfer of Mortgage, the above part shall be distributed in proportion to the ratio of responsibility of the plaintiff for the second and fourth loans and D pursuant to the share of responsibility.

4. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed and it is so decided as per Disposition.

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik