209Na80158 Guarantee Obligations

Korean Bank, Inc.

Credit Guarantee Fund

Seoul Western District Court Decision 2007Kadan84201 Decided June 17, 2009

November 24, 2010

2010, 12.24

1. The part against the plaintiff falling under the following order of payment among the judgment of the court of first instance shall be revoked:

2. The defendant shall pay to the plaintiff 515,251,00 won with 6.5% interest per annum from October 10, 2005 to December 1, 2005; 7.85% interest per annum from the next day to December 24, 2010; and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. 9/10 of the total costs of the lawsuit shall be borne by the defendant, and the remainder shall be borne by the plaintiff.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 515,251,00 won with 6.5% per annum from October 1, 2005 to December 1, 2005; 7.85% per annum from the next day to the service date of a copy of the complaint of this case; and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. On December 2, 2003, the Defendant concluded a credit guarantee agreement with the Plaintiff with the following content (hereinafter “the instant guarantee”).

- Pecuniary Co., Ltd. (hereinafter referred to as Nonparty Co., Ltd.)

- Guarantee principal: 1.350 million won in original loan and estimated amount of loan: 1.5 billion won in ordinary time loan - term of guarantee: 1.5 billion won in December 1, 2004 - Guarantee rate: 90%

- A special agreement: A factory with 124,124-5 located at the ec.g., the ec., the ec., the ec., the ec., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e. the e.

B. On December 9, 2003, the Plaintiff entered into a credit transaction agreement with the non-party company as of December 1, 2004, under the instant guarantee, as of December 1, 2004, with a loan for corporate facilities in the subject of credit, a loan of 1.5 billion won, and a credit transaction agreement with the non-party company as of December 9, 2003, with a loan of 75 billion won around April 14, 2004, and 30 million won around August 23, 2004 (at the request of the non-party company, a loan of 1.5 billion won was paid to the non-party company, as of August 23, 2004; hereinafter the Plaintiff and the Defendant modified the said special agreement as follows (hereinafter the amendment to the instant special agreement).

"The land (as shown in attached Table 5; hereinafter the same shall apply), buildings (as shown in attached Table 2; hereinafter the same shall apply), and machinery and appliances of this case shall be terminated at least 67,500,000,000 won, together with the land, building, and joint security at least 1,95,00,000,000 won, as well as the land, building, and building of the joint security under the Factory Mortgage Act, at least 1,95,000,000 won."

D. On November 25, 2004, the Plaintiff paid KRW 750 million from the non-party company, and on the same day, terminated KRW 675 million out of the Defendant’s guaranteed amount.

E. Around that time, the Plaintiff requested the Plaintiff to appraise the land, building, and the machinery and instruments installed therein. The appraisal proposal submitted to the Plaintiff a written appraisal of KRW 84,456,00 on November 30, 204, the land of the bamboo processing plant, KRW 387,268,00, and KRW 202,50,00 (the machinery, instruments, and appraised value verified as being installed in the bamboo processing plant in the above appraisal are the same as the written appraisal after the registration of the collateral security) (On the other hand, the Plaintiff requested the appraisal of the land, building, etc. of the mother processing plant in September 23, 2003, the appraiser submitted a written appraisal of KRW 94,576,00, KRW 136,980,00 as of September 23, 200, the appraisal report assessed as KRW 136,980,000 on these real property as of KRW 15,500,00).

F. On 204, 12, and 2, the Plaintiff respectively filed for the registration of the establishment of a mortgage on the land and building of the door-keeping factory with the maximum amount of KRW 975 million, the debtor company, the non-party company, the plaintiff of the right to collateral security (hereinafter referred to as the "registration of the establishment of a mortgage"), the land and building of the bambooa factory, the building, and the machinery and apparatus of this case, on 3th priority factory mortgage registration based on the Factory Mortgage Act (hereinafter referred to as the "registration of bambooa").

G. On December 8, 2004, the defendant changed the term of guarantee of this case to December 1, 2005, and accordingly, the plaintiff changed the term of guarantee of this case to December 1, 2005.

H. The non-party company did not pay interest on the instant loan after October 10, 2005. On November 1, 2005, the non-party company was subject to a disposition of suspension of transaction by a clearing house. On November 2, 2005, the Plaintiff notified the Defendant of the occurrence of a credit guarantee accident, and requested the Defendant to perform the obligation based on the instant guarantee on December 6, 2005, but the Defendant rejected it.

I. On February 2, 2006, the Plaintiff filed an application for a voluntary auction on the basis of the registration of Madry and the registration of Badry (Cheongju District Court C, D). At the above auction procedure, the appraiser requested an appraisal of the land, building, machinery, etc. of Badry factory was excluded from the subject of an appraisal on the ground that the land of 117,30,000,000, building was assessed as 390,590,600, but the machinery, equipment installed in the above factory cannot be recognized as identical to the machinery, apparatus, etc. listed in the list of factory mortgage.

(j) The Plaintiff received dividends of KRW 177,498,768 in the auction procedure based on the registration of the mother organization. The Plaintiff did not receive dividends in the auction procedure based on the registration of the deceased.

(k) The terms and conditions applicable to the instant guarantee include the following purport:

"① 피고는 보증부대출 채권액 중 미회수액에 보증비율을 곱한 금액으로 보증금액을 초과하지 아니하는 원금 등과 이에 대하여 보증채무이행일까지 보증부대출의 이행기가 도래되지 아니하였을 경우 적용될 이자율에 의한 미수이자액 등을 보증채무로 이행한 다(약관 제12조 등 참조). ② 원고가 이 사건 보증의 특약사항 동을 위반하여 담보를 취득할 수 있었음에도 귀책사유로 담보를 취득하지 아니하였거나 하자 있는 담보를 취득한 때에는 보증책임 분담액 전액이 면책되고, 담보물이 원고의 귀책사유에 의하여 멸실, 훼손되어 피고의 권리행사에 장에가 초래된 때는 기금이 손해를 입은 금액 및 그 종속채무가 면책된다(약관 제18조, 제19조, 면책기준 ㅋ 1-2항 등 참조 ; 이하 위 면책에 관한 약정을 이 사건 면책약정이라고 한다)."다. 원고의 기계기구에 내한 담보안정 비율은 40%이고, 이 사건 대출금에 대해 2005. 10. 10.부터 2005, 12. 1.까지 적용될 이자율은 연 6.5%, 그 다음 날부터 적용될 이자율은 연 7.85%이다.

[Ground of recognition] In the absence of dispute, Gap evidence 1, 2, Eul evidence 3-1 through 4, Gap evidence 4, 5-1 through 4, Gap evidence 6-18, Gap evidence 23, Gap evidence 24-1 through 6, Gap evidence 25, Eul evidence 26-1, Eul evidence 26-2, Eul evidence 1-2, Eul evidence 2 through 5, 10, Eul evidence 6 through 9, 15, 18, and part of evidence 19, Gap evidence, Gap evidence 23, Gap evidence 24-1 through 6, Gap evidence 25, Eul evidence 26-1, Eul evidence 1-2, Eul evidence 11, evidence 6 through 9, evidence 19, and the purport of the whole pleadings.

2. As to the cause of claim

According to the above facts, the defendant is obligated to pay to the plaintiff 5,251,108 won (=572,501,2320,000 won of the remaining principal of the loan of this case (i.e., KRW 1.55 million of the loan of this case - dividends of KRW 177,498,768 of the loan of this case - The principal was appropriated according to the plaintiff's calculation method that is not unfavorable to the defendant; i.e., the principal) and its interest or delay damages within the scope of KRW 675,00,00 of the guaranteed principal remaining after termination under the guarantee of this case, unless there are special circumstances.

3. As to the assertion of immunity, etc.

A. The parties' assertion

(1) The defendant's assertion

The Plaintiff was able to acquire a security in violation of the instant special agreement, but failed to acquire a security, acquired a defective security, or destroyed or damaged the security acquired by the Plaintiff due to its causes attributable to the Plaintiff, thereby making it impossible to exercise the Defendant’s right. Therefore, the Defendant’s obligation based on the instant guarantee should be fully or partially exempted in accordance with the terms and conditions of loan guarantee and exemption.

(2) The plaintiff's assertion

(A) The Plaintiff had due care as a good manager to observe the financial institution by acquiring the instant machines and instruments as collateral and consulting with the Defendant, etc., and there was no negligence.

(B) Even if the Plaintiff was negligent on the part of the Plaintiff, the Plaintiff shall be held liable for the total amount of the guaranteed principal remaining after the termination under the instant special agreement to the extent of the guaranteed principal remaining after the termination.

(C) Even if not, the Defendant’s exemption scope is ① pursuant to the instant special agreement.

The collateral value of KRW 9578,00,00,00,000,00,000, which was to be acquired, (i) around 231,556,00,00,000,000,000,000,000 of the value of the machinery and apparatus, among the collateral value of which was 674,224,000,000,000, in consideration of the rate of guarantee to the remaining principal; (ii) 115,191,688, which is calculated by multiplying the remaining principal by 515,251,00,00,00,000,000,000,000,000,000, or 2315,25,250,000,000,000,000,000,000,000,000,00,000,00.

B. Determination

(1) Interpretation, etc. of the instant special agreement and exemption agreement

(A) In full view of all circumstances, such as the content of the instant guarantee, the content of the instant loan, and the content of the instant special agreement, it is reasonable to interpret the instant special agreement as follows. The instant special agreement as a type of a so-called special agreement. The purport of the special agreement is to: (a) the Plaintiff, under the Defendant’s credit guarantee, bears a duty to secure physical security by setting up a certain order of collateral security under the Factory Mortgage Act, if the Plaintiff either fails to secure a security or acquires defective security due to the Plaintiff’s fault on the part of the non-party company under the Defendant’s credit guarantee; and (b) the Defendant’s liability to guarantee the non-party company is not limited to the acquisition of a mortgage right based on the Fair Security Act within the secured value acquired by the obligor; (c) the Defendant’s termination of the instant guarantee; and (d) even if the Defendant performed the guaranteed obligation to guarantee the non-party company, so that it does not result in the non-party company’s loss due to the lack of physical security by subrogation of the Plaintiff; and (d) the Defendant’s liability to guarantee.

On the other hand, the special agreement of this case imposes the obligation on the defendant to terminate the guarantee in accordance with the value of the facility in question on the part of the principal debtor of the loan by acquiring the collateral, at least because the repayment of the part equivalent to the value of the collateral is certain, among the principal obligation originally borne by the principal debtor of the loan by acquiring the collateral, the defendant's final guarantee is limited to the remainder except for the part, and the obligation to terminate the guarantee above a certain amount shall be terminated at least 675 million won under the special agreement above. The defendant imposes the obligation to acquire the effective security against the collateral in question, and if the plaintiff performs the obligation to acquire the collateral, the obligation to terminate the guarantee against the defendant according to the value of the collateral in question shall be imposed on the defendant in order to prevent the situation where the plaintiff acquires an effective security as to the collateral in question and unfairly terminates the guarantee only only part of the secured value through an evaluation of the arbitrary value of the collateral. Thus, if the defendant fails to obtain the security due to any cause attributable to the plaintiff, it can be argued that the above part of the secured value of the loan in question can be claimed.

As above, when recognizing exemption equivalent to the value of collateral, the value of collateral should be assessed at the time of the acquisition of such collateral.

In addition, the above legal principle also applies to the case where, after the plaintiff acquired a security, the guarantee of a certain amount was terminated under the special agreement of this case after the plaintiff acquired it, it is found that the plaintiff acquired a defective security due to the plaintiff's causes attributable to the plaintiff, and whether the defendant's negligence is not subject to consideration in calculating the scope of exemption and the scope of exemption (in addition, not only in the case of this case, there is no evidence to acknowledge the defendant'

(B) Although the Defendant asserts that, inasmuch as the Plaintiff has failed to acquire a security or acquired a defective security due to a cause attributable to the Plaintiff even though it was able to obtain a security in violation of the instant special agreement, the Defendant shall be exempted from the entire obligation in accordance with the instant special agreement, including “the termination of a certain amount after the acquisition of the security,” it is reasonable to interpret the instant special agreement and the exemption agreement as mentioned in the said paragraph, and it is difficult to interpret that the entire guarantee is naturally exempted from the liability on the grounds that the Plaintiff did not acquire a security due to a

(2) The defendant's exemption, scope, etc.

(A) Whether the Plaintiff’s negligence, etc. is exempt from the highest liability

앞서의 인정사실 및 갑 17, 18호증, 을 2, 3, 7호증의 각 기재, 을 8, 9, 11, 15, 19호증의 각 일부 기재, 증인 A의 일부 증언, 변론 전체의 취지에 의하면, ① 소외 회사는 호죽리 공장 토지, 건물을 소유하던 중 추가로 모정리 공장 토지, 건물을 매수한 후 위 모정리 공장에 소외 주식회사 원플러스로부터 1,673,780,455원 상당의 이 사건 기계기구를 구입하여(다만 부가가치세 포함하여 16억 5,000만 원에 구입하기로 하였다) 콘션 트형 누전차단기 생산라인을 설치한다며 그 시설자금 명목으로 원고에게 15억 원의 대출신청을 한 사실, ② 원고는 애초 위 기계기구 전체를 모정리 공장에 설치한 후 위 기계기구와 모정리 공장의 토지, 건물을 공정저당법에 기하여 공장저당권을 설정하기로 하였고 이를 전제로 이 사건 보증 약정에 이른 사실, ③ 그런데 소외 회사는 기계기구를 모정리 공장과 호죽리 공장에 분산하여 설치하는 등 이 사건 기계기구 중 상당 부분을 호죽리 공장에 설치하지 아니하고서 마치 호죽리 공장에 전부 설치할 것처럼 통지한 사실, ④ 원고는 위 분산설치 등에 관하여 제대로 확인하지 아니한 채 피고에게 이 사건 특약과 같은 내용으로 보증 약정을 변경하여 줄 것을 요청한 사실(처음에는 호죽리 공장의 토지, 건물, 기계기구에 대해서만 담보를 취득하는 것으로 변경신청하였다가 피고와의 협의를 거쳐 모정리 공장의 토지, 건물까지를 담보로 취득하기로한 것으로 보인다), 1 원고는 호죽리 등기를 취득하기 직전에 이 사건 기계기구를 2 억 250만 원으로 평가한 감정평가를 받았음에도(구체적 내역은 별지 1 '근저당등기 전감정내용'란 기재와 같다) 이에 관하여 그 원인을 찾아보거나 피고에게 알리는 등의 조치를 취하지 아니한 채 그 평가액을 16억 73,780,455원으로 기재하여(구체적 내역은 멸지 1 '호죽리 등기시 첨부된 공장저당목록 내용'란 기재와 같다) 근저당권을 설정하였으며 그 과정에서 평가액의 차이에 대해 그 원인을 찾아보거나 피고에게 알리는 등의 조치를 취하지 아니한 사실(원고는 호죽리 공장에 설치된 기계기구만을 대상으로 한 것이어서 그 평가액이 낮다고 하나, 그렇다면 원고는 피고에게 이러한 사실을 알리고 모정리 공장에 설치된 기계기구에 대하여도 근저당권을 설정하는 등 필요한 조치를 취하여야 했을 것으로 보인다), (6 원고는 호죽리 등기에 첨부된 기계기구목록에 기계기구의 규격, 제작자, 수량 등을 특정하여 기재하지 아니 하고 개략적으로 기재함으로써 위 등기에 기한 임의경매절차에서 감정평가를 의뢰받은 감정인은 근저당권등기에 첨부된 기계기구목록 기재 기계기구와 호죽리 공장에 설치되어 있는 기계기구의 동일성을 확인할 수 없다는 이유로 평가에서 제외하였으며 결국 이에 대한 담보권이 전혀 실행되지 못한 사실, ⑦ 원고는 이 사건 대출이 최종 이루어진 2004. 8. 23.로부터 수 일이 훨씬 지난 2004. 12. 2.에야 모정리 등기, 호죽리 등기를 경료함으로써 담보를 취득한 사실, ⑧ 원고는 이 사건 특약에 기한 담보를 제공받은 후 보증을 해지하여야 함에도 2004. 11. 25. 소외 회사로부터 대출금 중 7억 5000만 원을 변제받고 담보를 제공받기 전에 보증을 해지한 사실 등이 각 인정되고, 갑 19호증의 1 내지 40, 갑 11, 20, 21호증, 갑 22호증의 1 내지 3의 각 기재 또는 영상, 제1심 증인 A의 일부 증언만으로는 이와 달리 인정하기 어렵다.

According to the above facts, the plaintiff is found to have been negligent in failing to properly specify the machinery and apparatus in order to prevent any problem in the future when acquiring a security after confirming the machinery and apparatus immediately after the execution of the loan in this case and confirming the value of the security through an appraisal and assessment. Therefore, the defendant's liability based on the guarantee in this case is wholly or partially exempted in accordance with the exemption point in this case (as seen earlier, the plaintiff terminated the guarantee in this case according to the special agreement in this case, 675 million won, but the defendant can assert additional exemption by proving that the value of the security that the plaintiff could have acquired the security in this case exceeds the above amount).

(B) Specific exemption scope, etc.

The Plaintiff’s acquisition of the instant special agreement as collateral is based on the following facts: (a) EXE of the instant machines and instruments under the process mortgage list attached to the registration of mother reorganization, the registration of satis, and the registration of satis; and (b) EXE of the instant machines and instruments under the process mortgage list attached to the registration of satis; (c) however, due to the Plaintiff’s cause attributable to the Plaintiff, the Plaintiff failed to obtain adequate collateral for the instant machines and instruments; and (d) the fact that the Plaintiff’s collateral recognition ratio for the machines and instruments

According to the facts found above, the security value at the time when the plaintiff could obtain the security of the instant machines and apparatus properly shall be KRW 669,512,182, taking into account the estimated amount of 1,673,780,455 won at the time when the machines and apparatus of this case could have been installed (= KRW 1,673,780,455 won x 0.4). However, the amount falls short of KRW 675 million, which was determined to terminate part of the instant special agreement, and the defendant ultimately is exempted from KRW 675 million. Accordingly, the defendant is liable for the remainder of the loan within the scope of KRW 675,500,000,000,000 for the remainder of KRW 572,501,231, which is calculated in consideration of the guaranteed ratio of KRW 90%.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff interest or delay damages calculated by the rate of interest rate of the loan of this case from October 1, 2005 to December 1, 2005, the interest rate of 6.5% on the loan of this case from October 1, 2005, and the existence and scope of the obligation to pay 7.85% per annum of interest rate of the loan of this case and 20% per annum of interest or delay damages from the next day to the day of full payment, until December 24, 2010, which are the date of the decision of the court of first instance, from the next day to the day of full payment. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remainder of the claim shall be dismissed as it has no reason.

However, since part of the decision of the court of first instance against the plaintiff is unfair, the part of the decision of the court of first instance which partially accepted the plaintiff's appeal and revoked it, and ordered the defendant to pay the above amount recognized in the court of first instance, and since the remaining part of the decision of the court of first instance is legitimate, the plaintiff'

The presiding judge, judge and assistant judge

Judges Kim Jae-han

Judges Sock-in