Whether the Credit Guarantee Fund may claim the exemption of an insolvent financial institution on the ground of a mistake in issuing a credit guarantee certificate of an insolvent financial institution under the Credit Guarantee Fund Act, in case where a financial institution which has been engaged in the business of issuing a credit guarantee certificate as an institution entrusted with business of the Credit Guarantee Fund has engaged in a loan and has issued a credit guarantee certificate for it. A financial institution which has been transferred to a new financial institution under a contract decision made by the Financial Supervisory Commission under Article 14(2) of the former Act on the Structural Improvement of the Financial Industry requests the performance of a guarantee obligation for the loan in question to the new financial institution

The Credit Guarantee Fund may claim the exemption from its guarantee obligation against a financial institution as a creditor (a financial institution) on the ground of an error in issuing a credit guarantee certificate of a financial institution, which is an entrusted institution for business affairs, in accordance with the Credit Guarantee Fund's entrustment agreement entered into with the financial institution. If the occurrence of such exemption has been made prior to the Financial Supervisory Commission's decision to transfer a contract under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998), the Credit Guarantee Fund may claim the exemption from its guarantee obligation against a new financial institution which has taken over the contractual status as a lending institution under the above contract to transfer a contract. It does not change on the ground that the exemption is for the reason of a breach of

Article 14 of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998); Article 428 of the Civil Act

Korea Housing and Commercial Bank

Korea Credit Guarantee Fund (Law Firm Busan, Attorneys Go Jin-ho, Counsel for defendant-appellant)

Busan District Court Decision 2000Na15132 delivered on April 6, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The judgment of the court below

A. On July 18, 1997, the court of first instance cited by the court below, based on the non-satisfy evidence, and the Dongnam Bank Co., Ltd. (hereinafter "Dongnam Bank") loaned 50 million won to a creative company under the defendant's credit guarantee (hereinafter "non-party company") under the defendant's credit guarantee, and the plaintiff who acquired the status of the contractor from the Dongnam Bank on March 24, 1999 that the non-party company did not repay the loan within the due date requested the defendant to pay the principal and interest of 54,783,697 won, and the defendant requested the defendant on December 16, 199 to pay the principal and interest of 5,50 million won among the loans and interest of 15,50 million won from August 20, 199 to December 16, 199; 30,199 won; 19.

B. Furthermore, the first instance court, as cited by the court below, concluded a credit guarantee consignment agreement with the defendant with regard to the plaintiff's claim in this case seeking the payment of the remainder of the guaranteed debt, and as stated in its reasoning, Dongnam Bank shall perform the credit guarantee business entrusted by the defendant with due care as a good manager; it shall perform its business in accordance with the Enforcement Decree of the Credit Guarantee Fund Act, the business manual, regulations, automatic credit guarantee handling guidelines, and other business process guidelines notified by the defendant; and if it has performed its business in violation of such provisions, it agreed that the defendant may be exempted from the whole or part of the guaranteed liability; the Dongnam Bank, as a business entrusted institution of the defendant, must establish two directors of the non-party company as joint and several sureties, who are oligopolistic shareholders of the non-party company, as it did not put up two directors of the non-party company as joint and several sureties, pursuant to the general principle of operation of the defendant's guarantee consignment agreement in violation of the defendant's guarantee entrustment agreement, the defendant's guaranteed debt was exempted from 1/25 million won of the guaranteed principal, and the defendant's defense.

C. In addition, the first instance court, as cited by the court below, rejected the plaintiff's assertion that the Gangnam Bank omitted a person who is obliged to establish as a joint guarantor in concluding a credit guarantee contract with the non-party company, but fulfilled its duty of care as a good manager in confirming whether it is an oligopolistic shareholder, it is difficult to deem that the Nam Bank did not have fulfilled its duty of care as a good manager by asking the representative director of the non-party company without any separate confirmation procedure through a certified family register copy or a certified copy of family register, etc., and determined that it was not an oligopolistic shareholder. The court below rejected the plaintiff's assertion that the plaintiff cannot claim exemption from the credit guarantee entrustment contract under the credit guarantee contract in this case against the plaintiff because the plaintiff succeeded only to the status of creditor under the credit guarantee contract in this case, and the status of the party to the credit guarantee entrustment contract was not succeeded. Thus, the defendant's assertion that the defendant cannot claim exemption from the credit guarantee contract in this case against the plaintiff was done before the decision of exemption from the credit guarantee contract in this case was made. It rejected the plaintiff's argument.

2. Judgment on the grounds of appeal

A. On the first ground for appeal

According to the records, on June 29, 198, the scope of a contract that is to be transferred from a Dong bank to the plaintiff by a decision of the Financial Supervisory Commission under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of Sep. 14, 1998; hereinafter the same shall apply) may be known to the extent of a contract that is to be transferred from the Dong bank to the plaintiff by a decision of the Financial Supervisory Commission under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of Sep. 14, 1998) as of the base date of contract transfer (hereinafter referred to as "property, liabilities, etc."), the contractual status related to incidental business (including assets, liabilities, etc. related to the business of the Dong bank), etc. Therefore, it cannot be deemed as a transfer to the plaintiff by the above decision of the contract transfer

On the other hand, the defendant may claim the exemption from liability for the credit guarantee of the Dongnam bank as a creditor (a financial institution) on the ground of the error in issuing a credit guarantee certificate of the Dongnam bank, a business entrusted by the credit guarantee fund, pursuant to the above contract entrustment agreement entered into with the Dong Nam bank. If the occurrence of the exemption is done prior to the above contract transfer, the defendant may claim the exemption from liability for the plaintiff who acquired the status of the Dongnam bank as a lending institution's contractual status under the above contract transfer agreement. The exemption from liability is for the reason of the violation of the above contract transfer obligation, and it does not change on the ground that the plaintiff did not acquire the status under the

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to a person who can claim the scope of a contract transferred by an order to transfer a contract or a reason for exemption from the Korea Credit Guarantee Fund's entrustment contract.

B. On the second ground for appeal

Examining the relevant evidence in light of the records, the judgment of the court below that the Gangnam Bank cannot be deemed to have fulfilled its duty of care as a good manager when it issues the letter of credit guarantee in this case and confirms whether the non-party company, which requested the credit guarantee, is an oligopolistic shareholder to be established as a joint guarantor, is just and acceptable. There is no error in the misapprehension of legal principles as to the facts contrary to the rules of evidence or the duty of care as a good manager, as

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)