[1] The subject to whom rights and obligations as to the Agriculture and Forestry Credit Guarantee Fund belongs (National Agricultural Cooperative Federation)

[2] In a case where the National Agricultural Cooperative Federation, the management institution of the Fund, provides a credit guarantee for a loan to a lending institution, whether the National Agricultural Cooperative Federation may exercise the credit for the loan as a lending institution (negative)

[3] Where a person who has a legitimate interest in repayment has subrogated a part of the secured debt on behalf of the debtor, the right to be acquired by the subrogated person

[4] In a case where several persons paid a part of the claim on behalf of another person at different time, the order of distribution among some subrogation in the distribution procedure due to the exercise of a right to collateral security (=distribution of the claim)

[5] The case holding that since the National Agricultural Cooperative Federation, the managing agency of the Agricultural Cooperative Federation for Farmers and Fishermen, at the same time as the lending institution, has paid part of the loan claims as the management institution of the Fund, it cannot receive dividends in preference to other partial subrogations in the status of the lending institution since the loan claims have expired within the extent of the amount of subrogated

[1] In light of the provisions, legislative purport, and practical practices of the Act on the Credit Guarantee for Farmers and Fishermen, the Agricultural Cooperative Federation cannot be the subject of independent rights and obligations from the National Agricultural Cooperative Federation, the management institution of the said Fund. Thus, the subject of external attribution of rights and obligations arising from the credit guarantee granted by the National Agricultural Cooperative Federation, as the management institution of the said Fund, shall

[2] Article 8 (3) of the Act on the Credit Guarantee for Farmers and Fishermen provides that the National Agricultural Cooperative Federation shall enter into a guarantee agreement with the management institution of the Fund for Farmers and Fishermen, the managing institution of the Fund for the loan of agricultural and fishery funds. Where the National Agricultural Cooperative Federation, the management institution of the Fund, provides the credit guarantee for the loan of agricultural and fishery funds as the lending institution, the National Agricultural Cooperative Federation concurrently holds the status as a lending institution and the status as a credit guarantor. If the National Agricultural Cooperative Federation, the management institution of the Fund, performed its guarantee obligation, the National Agricultural Cooperative Federation, the management institution of the Fund, is no longer able to exercise its credit for the debtor, and the National Agricultural Cooperative Federation,

[3] In case where a person who has a legitimate interest in repayment has subrogated for a part of the secured obligation on behalf of the debtor, the subrogated person shall legally acquire the rights to the claims and security held by the previous creditors within the extent of the value of performance, regardless of whether a supplementary registration of partial transfer of the right to collateral security has been made, within the extent of the value of performance performed, regardless of whether or not the person has made a supplementary registration of partial transfer of the right to collateral security. In case where the previous creditor has already made a demand for distribution

[4] In the case where several persons have paid a part of the claim by subrogation at different times, they shall be deemed to have completed the right to collateral security in proportion to the amount of the performance performed by each of them as a partial subrogation. In the case of paying dividends through the exercise of the right to collateral security, unless there are other special circumstances, the distribution shall be made in proportion

[5] The case holding that since the National Agricultural Cooperative Federation, the managing agency of farmers and fishermen's Credit Guarantee Fund, made a payment on behalf of part of the loan claims held as the managing agency of the Fund, the National Agricultural Cooperative Federation cannot receive dividends in preference to other partial subrogations in the status of the lending agency, as it extinguished the loan claims within the extent of the amount of subrogated payment

[1] Articles 4(1), 5(1), 8(1) and (2), and 12(1) of the Act on the Credit Guarantee for Farmers and Fishermen / [2] Article 8 of the Act on the Credit Guarantee for Farmers and Fishermen, Article 134(1)4 of the Agricultural Cooperatives Act, Article 481 of the Civil Act / [3] Articles 481 and 483(1) of the Civil Act / [4] Articles 278, 482(1), and 483(1) of the Civil Act / [5] Article 8 of the Act on the Credit Guarantee for Farmers and Fishermen, Article 134(1)4 of the Agricultural Cooperatives Act, Articles 278, 482(1), and 483(1) of the Civil Act

[3] Supreme Court Decision 2001Da2426 decided Jun. 25, 2004 (Gong2004Ha, 1216) / [4] Supreme Court Decision 2000Da37319 decided Jan. 19, 2001 (Gong2001Sang, 511)

Korea Technology Credit Guarantee Fund (Law Firm Cheong Pung, Attorneys Oi-ok et al., Counsel for the defendant-appellant)

National Agricultural Cooperative Federation (Attorney Kim Jong-hoon, Counsel for defendant-appellee)

Daejeon High Court Decision 2003Na3452 delivered on December 3, 2003

The part of the judgment of the court below against the plaintiff shall be reversed, and that part of the case shall be remanded to Daejeon High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Unlike the Korea Technology Credit Guarantee Fund, the Korea Technology Credit Guarantee Fund, the Regional Credit Guarantee Fund, the Regional Credit Guarantee Foundation Act, etc., the Act on the Credit Guarantee for Farmers and Fishermen does not provide for the Fund for farmers and fishermen (hereinafter referred to as the “Fund”) as a juristic person. Not only establish the Fund in order to guarantee the credit for farmers and fishermen, etc. (Article 4 (1)), manage the Fund and other business concerning the credit guarantee under the above Act shall be handled by the Defendant (Article 5 (1)), and the Defendant, the management institution, shall enter into a contract with a financial institution to guarantee the obligations of farmers and fishermen, etc. under Article 4 (3) 1 by the Fund (Article 8 (1)), and the management institution, upon receiving an application for credit guarantee from the farmers and fishermen, etc., shall establish a guarantee relationship between the Defendant, the management institution, and the relevant financial institution, as to the portion of which the Defendant notified the financial institution which concluded the contract under paragraph (1) after examining it (Article 8 (2). In light of the purpose of the Act, the Fund’s independent credit guarantee management institution.

Examining the reasoning of the judgment below in light of the records and the above legal principles, the court below is just in holding that the defendant is a management agency of the Fund as the subject to the rights and obligations arising in relation to the credit guarantee of this case, and there is no error in the misapprehension of legal principles as

2. Regarding ground of appeal No. 2

Article 8(3) of the Act on the Credit Guarantee for Farmers and Fishermen provides that the defendant, the management institution of the Fund, shall enter into a guarantee agreement for the credit guarantee for the loans for farmers and fishermen, which the defendant acts as the management institution of the Fund. In the event that the defendant provided credit guarantee for the loans for farmers and fishermen as the management institution of the Fund, the defendant concurrently belongs to the status of the management institution of the Fund and the status of the credit guarantor. If the defendant, the management institution of the Fund, performed its guaranteed obligation, the defendant cannot exercise his claim for the loans to the debtor any longer, and the defendant can exercise his claim for reimbursement as the management institution of the

According to the records, on May 13, 200, the defendant, as the management agency of the Fund, provided a credit guarantee of KRW 800 million to the defendant's Seocho-si Co., Ltd. (hereinafter "non-party company"), which is the lending agency of the Fund, with regard to the loan claims of KRW 39,495,890, and on September 29, 2001, subrogated for the remainder of KRW 854,271,464, excluding the interest accrued during the loan claims of KRW 39,495,890. Accordingly, the defendant's loan claims against the non-party company as the lending agency were extinguished by the above subrogation and all remainder were extinguished by the above subrogation, and the defendant, the management agency of the Fund that performed the guaranteed obligation, acquired the claim for indemnity.

On the other hand, where a person who has a legitimate interest in repayment has subrogated for a part of the secured obligation on behalf of the debtor, the subrogated person shall be legally entitled to the rights to the claim and security held by the previous creditor within the scope of the value repaid regardless of whether or not a supplementary registration of partial transfer of the right to collateral security has been made (see Supreme Court Decision 2001Da2426, Jun. 25, 2004). As to the scope of subrogation, in cases where the previous creditor has already made a demand for distribution or could have received a distribution as a matter of course without a demand for distribution, the subrogated may receive a distribution even if he has not made a separate demand for distribution. Thus, in the auction procedure of this case, the defendant may receive a distribution based on the third-class collateral security (hereinafter referred to as the "mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed claim") against the land, building, machinery and apparatus

However, if several persons have paid a part of the claim by subrogation at different time, they shall be deemed to have paid the right of collateral security in proportion to the amount of payment by subrogation as part of each person who has paid the right of collateral security, and in paying dividends by exercising the right of collateral security, unless there are other special circumstances (see Supreme Court Decision 2000Da37319, Jan. 19, 2001). According to the records, the plaintiff shall pay 167,561,643 out of the right of collateral security of this case to the non-party company of this case as one of the secured claims of this case on September 21, 2000, the plaintiff shall pay 167,561,643 out of the right of collateral security of this case by subrogation to the non-party company of this case on September 5, 201, and the defendant, who is the management agency of the Fund, can not receive dividends in proportion to the amount of payment by subrogation in the status of the lending institution in proportion to the amount of payment by subrogation and the remaining creditor.

Therefore, in paying dividends based on the instant right to collateral security, the Defendant first distributed the remainder as a lending institution, and then distributed dividends in proportion to the amount of each subrogated by the Defendant and the Plaintiff, which is the management institution of the Fund, notwithstanding the fact that, if the Defendant is at the same time as the management institution of the Fund, it shall not extinguish the loan claims by subrogation from the Defendant, which is the management institution of the Fund, the lower court determined that the Defendant may receive dividends in preference to the Plaintiff, who is the management institution of the Fund, even if the loan claims are paid by subrogation from the Defendant who is the management institution of the Fund. Accordingly, the lower court erred by misapprehending the legal doctrine as to the nature of the loan claims that the Defendant may exercise on the basis of the instant right to collateral security and thereby adversely affected

3. Regarding ground of appeal No. 3

The records (in particular, evidence No. 11-4) show that the defendant, as the management agency of the Fund, guaranteed the non-party company's obligation of loans to the defendant on May 13, 200, and was placed at the place where the payment would be made by subrogation, and that on May 18, 2001, the Cheongju District Court 2001Kadan3812 issued a provisional seizure order on May 18, 2001 (hereinafter "provisional seizure of this case") in order to preserve the claim of indemnity which was acquired at the time of payment by the Fund's position as the management agency of the Fund, the defendant made a provisional seizure of this case's land and buildings (hereinafter "provisional seizure of this case"). As seen above, as seen above, on September 29, 2001, as the management agency of the Fund, he paid the above loan of 854,271,464 won among the loan claims of this case and part of the mortgage claim of this case to the non-party company.

Therefore, when distributing the remaining money remaining after the provisional attachment owner of the land, buildings, machinery, or apparatus of this case to the plaintiff and the defendant as the right of provisional attachment in the fifth priority of the proceeds from sale of the land, buildings, machinery, or apparatus of this case (hereinafter "the remaining proceeds from sale"), the remaining proceeds from sale should be distributed in proportion to the remaining amount after the provisional attachment of November 2, 200 (Cheongju District Court 2000Kadan9228), the amount of preserved claims based on the provisional attachment of this case (Cheongju District Court 2000Kadan9228), and the amount of indemnity claims acquired by the defendant by subrogation as the management authority of the Fund, except for the amount paid by the right of collateral security of this case under the third priority of the proceeds from the provisional attachment of this case. However, under the premise that there is no evidence to acknowledge that the defendant's secured claims of this case overlap with the secured claims of this case, the court below erred in the misapprehension of distribution based on the plaintiff's provisional attachment and its grounds for appeal pointing this out the remaining proceeds.

4. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)