Ansan Trade Co., Ltd and 57 others (Attorney Park Chang-hoon, Counsel for the plaintiff-appellant)

New Bank Co., Ltd. and 7 others (Law Firm Chungcheong, et al., Counsel for the plaintiff-appellant)

May 12, 2011

1. The plaintiffs' claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each defendant entered in the attached claim amount calculation slip in the defendant column shall pay each plaintiff listed in the plaintiff's column of the attached claim amount in 20% interest per annum to the day of full payment from the day following the day of this decision to the day of this decision.

1. Basic facts

A. The defendants' loans to the plaintiffs in Japan

The Plaintiffs received from the Defendants, a financial institution, the term “loan” in the attached amount calculation sheet, “date of loan”, and “the first loan interest rate” in the attached amount calculation sheet from 2005 to 2007, in which the interest rate on the loan was low compared to the interest rate in Korean won, from 2005 to 2007. The term “the first loan interest rate” was extended from the Defendants, who were financial institutions, to Japan during a commercial period of one year from the date of closing argument in the instant case. The highest loan interest rate applied to the Plaintiffs during the loan period is as indicated in the “the highest loan interest rate during the period of loan” in the attached amount calculation sheet (hereinafter collectively referred to as “the Plaintiffs’ respective UN loan received from the Defendants”).

B. The method of financing the Defendants’ funds

The Defendants, on their own credit, raised the UN funds at an interest rate of 1) LIBOR plus 2) spred (Spred) in LIBR, and offered loans to the Plaintiffs and the domestic constructors, which was determined in accordance with the Defendant’s credit rating (3) in the international financial market.

C. Method of determining the interest rate on the loans of the United Nations

1) The elements to determine the interest rate on the loans of the United Nations are as follows.

The interest rate for the portion determined by various laws and regulations, such as the credit rating of individual loan holders and the education tax for the portion determined by the business environment of the bank, and the amount of the loan funds of the Credit Guarantee Fund, which is determined in the main sentence, shall be the interest rate for domestic banks in addition to LIBOR when raising the funds for the international financial market, which is determined in accordance with the credit rating in the international financial market of the domestic bank (LIBR) international financial market.

2) In other words, the interest rate on the loans of the United Nations was determined by comprehensively operating the costs incurred by the Defendants in raising the United Nations in the international financial market, the costs to be paid or accumulated by the Defendants in accordance with various laws and regulations when implementing the loans, the risk of loans that vary according to the credit rating of individual borrowers, the profits accrued by the Defendants from the loans, the costs incurred by the Defendants in maintaining the business (additional interest rate).

3) At the time of the loan of the United Nations, the Plaintiffs and the Defendants agreed on the loan interest rate to normally be “LIBOR + the additional interest rate applied by the Plaintiff.” Since the “LIBOR interest rate” was announced in the UK, the Defendants, a financial institution, were unable to participate in the determination of LIBOR interest rate, and the “additional interest rate applied by the Plaintiff” was the interest rate that reflects the “sot, taxes, and additional interest rate” among the elements of the loan interest rate as seen above, which was determined in accordance with the credit rating of the Defendants in the international financial market and determined in accordance with the laws and regulations, so there was no room for the Defendants to exercise their influence in determining the amount. However, “additional interest” was differently applied according to the credit rating of the lender and the business environment of the Defendants, so the Defendants could exercise their substantial influence on the determination of the “additional interest rate” and the different “additional interest rate” was applied according to the Plaintiff, respectively.

D. Increase in the interest rate on loans of the United Nations

1) Due to the global financial crisis that occurred in the second half of 2008, the Defendants increased the expenses incurred in raising the UN funds in the international financial market. In other words, in around 2007, the interest rate on the issuance of foreign currency bonds issued by domestic financial institutions was 2%. However, in the last half of 2008, the interest rate on the issuance of foreign currency bonds issued by domestic financial institutions was 4%, and in the first half of 2009, up to 8%, respectively.

2) From January 2006 to December 201, 2010, the rate of exchange was as follows. The rate of exchange formed 800 won per 100 UN around January 2006, which fell below 790 won per 100 UN around November 2006. Around June 2007, the rate of exchange changed below 10 UN 750 won per 100 UN 100 UN 80 won per 100 UN 100 UN 200 on August 2007. Around March 2008, 100 UN 1,000 UN 1,000 won per 100 UN 1,000,000 won per 100 UN 1,000,000 won per 10,000 won per 10,000 UN 10,000 won per 10,000 won per 209.

A person shall be appointed.

3) The interest rate on LIBR (three months) from July 1, 2005 to 0.050% on July 1, 2005, to 0.06625% on January 2, 2006, to 0.350% on July 3, 2006, to 0.350% on January 2, 2007, to 0.56750% on January 2, 2007, to 0.7600% on July 2, 2007, to 8950% on January 20, 2008, and to 0.930% on July 1, 2008, to 10.05% on May 30, 2005, to 2005.

4) As such, the interest rate on the cost of financing the UN and the interest rate on the UN was increased in around 2008 and around 2009 compared to around 2006, the increase in the amount of the principal in Korean currency converted into the amount of the loan the Plaintiffs received as a result of the increase in the rate of exchange in the amount of the loan. Accordingly, the combined causes such as a decrease in the ability to repay the loan principal and interest of the Plaintiffs due to the decline in the ratio of the collateral provided by the Plaintiffs, and the interest rate on the loan of the UN was raised from the latter half of 2008 to the first half of 2009 as stated in the “the highest interest rate during the loan period” in the attached amount calculation table (hereinafter “the interest rate of the loan of this case”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 4, Eul evidence Nos. 1 through 3, 5, 6, 8, 9, Eul evidence Nos. 1 through 1, 13, 15 through 27, Eul evidence Nos. 1 through 4, 7, 12, Eul evidence Nos. 1, 5, 6, 9 through 17 (including each number), appraiser No. 4 and non-party No. 5's result of each appraisal, the purport of the whole pleadings,

2. The plaintiffs' assertion

(a) Occurrence of liability for damages;

(i) deprivation of fixed interest or floating interest options;

According to Article 3(2) of the General Terms and Conditions for Credit Transactions (hereinafter “Terms and Conditions”), a person who obtains a loan from a financial institution may choose whether the loan interest rate will be a fixed interest rate without any change in the interest rate during the loan period, or as a floating interest rate with which there may be any change in the interest rate during the loan period. However, the Defendants deprived the Plaintiffs of the right to choose a fixed interest rate by explaining to the Plaintiffs as if they were unable to choose a fixed interest rate in the execution of the loan of this case and only loan was made according to the floating interest rate. Accordingly, the Defendants are liable to compensate for mental damages suffered by the Plaintiffs.

2) Violation of duty to explain transaction terms

Article 4(3) of the Terms and Conditions of this case provides that the bank shall explain the items, such as the agreed interest rate and incidental expenses, in a separate document, so that the debtor can know in advance before entering into a loan agreement. According to the above provisions, the defendants are obliged to specify the loan interest rate in the execution of the loan of this case, specify the loan interest rate, specify the loan interest rate, and explain to the plaintiff about how the loan interest rate changes in the future exchange rate. Accordingly, the defendants are liable to compensate for mental damages suffered by the plaintiffs.

3) Violation of duty of disclosure of exchange risk

The Defendants did not properly explain the risks arising from exchange rate fluctuations to the Plaintiffs at the time of the loan of the United Nations. This constitutes tort since they failed to fulfill their duty to explain and protect the Plaintiffs, who are the loan obligor. Therefore, the Defendants are liable to compensate for mental damages suffered by the Plaintiffs.

4) Damages

The mental damage suffered by the plaintiffs due to the above tort of the defendants shall be calculated as KRW 10,00,000 per 50,000,000,000,000, and the specific amount is as stated in the form of consolation money in the calculation table of claim amount.

B. Return of unjust enrichment

Although Article 3(4) of the Terms and Conditions of this case provides that it shall be conducted within a reasonable scope in accordance with sound financial practices that raise and increase the interest rate, such as interest, etc., the Defendants committed an increase in the interest rate of this case beyond the reasonable scope compared to the initial interest rate at the time of the loan of this case. The Defendants are obligated to set or change the terms and conditions of the transaction by unfairly using their transaction position and disadvantage in the course of its implementation. Accordingly, the Defendants are obliged to return the interest rate of the loans received from the Plaintiffs in accordance with the interest rate that exceeds the reasonable scope, and the specific amount is the same as the entry in the column of unjust enrichment in the statement of claim amount calculation.

3. Determination

A. Determination on the claim for damages

1) Whether the choice of fixed interest rate was infringed

The plaintiffs' assertion in this part is premised on the premise that the defendants operated all the loans to which the fixed interest rate and floating rate apply, or that the defendants are obliged to operate the loan method to which the fixed interest rate apply. In light of the whole purport of the arguments in Gap evidence 1, Gap evidence 3, Gap evidence 5-1, and Gap evidence 6-1, Article 3 (2) of the terms and conditions of this case provides that the bank can choose to change the interest rate at any time until the loan obligor completes the obligation to pay the loan (fixed interest rate) or until the loan obligor completes the obligation to pay the loan, the bank can choose to change the interest rate at any time until the loan obligor completes the obligation to pay the loan, and the purport of Article 3 (2) of the terms and conditions of this case is stated in the credit transaction agreement made between the plaintiffs and the defendants as of May 9, 2006 that the fixed interest rate or floating interest rate can be selected from each loan transaction agreement made between the defendant Han Bank Co., Ltd. (hereinafter "the defendant Han Bank") by the expiration date of the loan agreement.

However, in the international financial market, the Defendants raised funds by adding the framework to the “LIBR interest rate” as seen earlier, and comprehensively taking account of the overall purport of the arguments in B/L No. 6-1, 2, 13, and 14, the above “interest rate adding the framework to the LIBR interest rate” is not fixed, but there is a possibility of fluctuation. Thus, if the Defendants implemented a loan by the fixed rate method in the international financial market of this case, the Defendants are bound to incur losses due to the difference in the financing interest rate and loan interest rate. Accordingly, the Defendants were not obliged to operate the fixed rate in the form of the loan agreement of this case, and the Defendants did not have the duty to choose the fixed rate in the form of the loan agreement of this case between the Defendants and the fixed rate in the form of the loan agreement of this case and the fixed rate in the form of the loan agreement of this case. Accordingly, the Defendants did not necessarily have the duty to use the fixed rate in the form of the loan agreement of this case and the fixed rate in the form of the loan agreement of this case No. 2.

2) Whether the terms of transaction duty and duty to explain are violated

On the other hand, it seems that the Defendants did not properly explain the terms and conditions of transaction to the Plaintiffs at the time of the loan of the United Nations, and that they did not properly notify the exchange risk, and there is no evidence to acknowledge it differently, without reliance on the entries in No. 13-1 to No. 38 of the evidence No. 13, the witness’s testimony, the witness Nonparty 3’s testimony, and the result of the personal examination against Nonparty 2 by the representative director of the Ansan Trade Co., Ltd.

B. Determination on the claim for restitution of unjust enrichment

The plaintiffs' assertion in this part is that since the increase of loan interest in this case is in violation of the Fair Trade Act, the amount equivalent to the loan interest acquired by the defendants through the increased loan interest rate constitutes unjust enrichment and thus, it should be returned to the plaintiffs. It is premised on the fact that the amount equivalent to the loan interest acquired by the defendants in violation of the Fair Trade

First, we examine whether the loan interest rate of this case constitutes an act of disadvantageous offer (the act of setting or altering the terms of transaction by unfairly taking advantage of one's trade position) under the Fair Trade Act, and there is no basis to regard the loan interest rate of this case as an act of disadvantageous offer.

Even if the loan interest rate increase in this case violates the Fair Trade Act, it cannot be readily concluded that the loan interest rate in this case is null and void as it has no legal effect. Therefore, the amount equivalent to the loan interest that the Defendants acquired according to the loan interest in this case cannot be deemed to have no legal grounds. Therefore, the plaintiffs' assertion on this part is unreasonable, and therefore, it is without merit, as it is without merit.

If the loan interest rate of this case is null and void due to the lack of legal effect, it is problematic whether the loan interest rate of this case exceeded the reasonable scope. Article 3(4) of the terms and conditions of this case provides that "in the event that the bank selects the loan interest rate of this case 2, the loan interest rate of this case shall be increased within a reasonable scope in accordance with sound financial practices which make it possible to increase the loan interest rate of this case." In the case where the purpose of the terms and conditions of this case is to extend the loan interest rate of this case, the prior question is whether the loan interest rate of this case is applied to the case where the parties to this case agree on the loan interest rate of this case 10 years (the plaintiffs and the defendants agreed on the loan interest rate of this case as "the loan interest rate of this case 10 years + the additional rate applied to the loan interest rate of this case." Thus, the defendants' opinion that the loan interest rate of this case should not be applied to the loan interest rate of this case between the parties to this case without the agreement of the parties to the above loan interest rate of this case."

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed in entirety as it is without merit. It is so decided as per Disposition.

[Attachment Form No. 1]

Judges Lee Jae-sik (Presiding Judge)

1) The term “LIBR” means the interest rate applied to the transaction of superior short-term funds in London, which is an international financial market. The interest rate between London banks (LIBR) is used as the standard interest rate in the international financial market. The interest rate is the interest rate used as the standard interest rate in the international financial market, and the financial institutions are used as the basis for the payment of foreign currency funds. The interest rate vary depending on the credit rating of the foreign currency lending institution. In particular, the interest rate vary depending on the credit rating of the foreign currency lending institution. In particular, the London financial market plays a big role in the international financial market, which is a major basis for determining the interest rate in the world. In general, it is difficult to grasp the long-term interest rate. The change in the interest rate is considerably affected by the supply and demand of US dollars. Here, the term “$” is mainly refer to the bank other than the United States, the European Bank, the local customer bank, the local customer bank, and the local transaction between the foreign bank and the foreign bank.

주2) 채권이나 대출금리를 정할 때 신용도에 따라 기준금리에 덧붙이는 가산금리를 의미한다. 예를 들어 외국에서 달러를 빌려올 때 리보가 연 5%이고, 실제 지불하는 금리가 8%라면 그 차이에 해당하는 3%를 가산금리(스프레드)라고 부른다. 가산금리(스프레드)는 융자를 원하는 기관의 신용도에 따라 정해지는 벌칙성 금리에 해당하기 때문에 돈을 빌리는 기관의 신용도가 높을수록 가산금리(스프레드)가 적게 붙고, 신용도가 나쁠수록 가산금리(스프레드)가 높다(출처 네이버 백과사전).

3) As an index reflecting the Defendants’ credit worthiness in the international financial market, the CDA is established. There exists a risk of reducing the value of credit assets, such as default, bankruptcy, and default even on loans and bonds investment. The CD or credit swap refers to derivatives that compensate other investors for such losses. Once the above credit risk is realized, the CDA pays certain fees of the nature of the insurance proceeds in the process to ensure the repayment of the principal. The CD is a swap product that functions to separate the credit risk from its original assets. The CD is generally paid quarterly, and the CD is expressed in the unit of bp (b) premium increase. The 1bp is as follows:0.1% of the premium increase and insurance premium increase and the amount of the credit risk in the country’s insurance premium increase.

(4) Although the structure of the loan interest rate of each Defendant differs from 10%, the basic structure of the loan interest rate of 30% is “LIBR + additional interest rate of 10% applied by the Plaintiff [see, e.g., the appraisal report prepared by Nonparty 4 on 60-61 and the report prepared by Nonparty 5 on 46-49 pages (the report on the Defendant New Bank)]. For example, in the case of the Plaintiff Asan Trade Corporation, the above Plaintiff was loaned 153,000,000 from the Defendant New Bank Co., Ltd. to 153-6% of the loan interest rate of 10-6% of the loan interest rate of 30-6% of the loan interest rate of 10-6% of the loan interest rate of 00-6% of the loan interest rate of 10-6% of the loan interest rate of 10-6% of the loan interest rate of 10-6% of the loan interest rate of Japan from the date of January 5, 20006.

5) On September 15, 2008, the global financial crisis that began in the Human Investment Bank of the United States of America on September 15, 2008 refers to the global financial crisis that began in the Real Estate Bankruptcy. The Human Estate Bankruptcy is a bankruptcy of a maximum scale of the U.S. history, and the asset size was USD 639 billion at the time of filing an application for the protection of bankruptcy. The Human Estate Bankruptcy is a symbolic event where the U.S. financial crisis, which only has concerns over, was the post-brupted of the Human Estate Base (Non-FF). The Human Estate incident occurred with the wind of excessively investing in the financial product, the value of which is decline due to the decline in the prices of bad assets and real estate. The impact of the Human Environment was rapidly spreading all over the world (pre-fluort0).

(6) Article 23 (Prohibition of Unfair Trade Practices) (1) of the Fair Trade Act (hereinafter referred to as "unfair trade practices"), which is an act falling under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or which is prohibited from having affiliated companies or other business entities engage in such practices; 1. An act of unfairly refusing a trade or discriminating against a competitor; 2. An act of unfairly inducing or inducing a competitor to deal with his/her customers; 3. An act of unfairly inducing or inducing a competitor to deal with his/her customers; 4. An act of unfairly inducing or inducing a competitor to deal with his/her customers; 5. An act of unfairly restricting his/her business activities; 7. An act of unfairly interfering with another person with special interest or other company; 7. An act of assisting a person with special interest or other company under obligation to unfairly restrict his/her business activities;