Athi loan Co., Ltd. (Law Firm LLC, Attorneys Kim Sung-sik et al., Counsel for the defendant-appellant)

Defendant (Law Firm ELDB Partners, Attorneys Yang Woo-soo et al., Counsel for the defendant-appellant)

May 20, 2016

Seoul Central District Court Decision 2015Gahap513164 Decided July 9, 2015

1. Revocation of the first instance judgment.

A. With respect to a claim for denial filed by Seoul Central District Court 2014 Ma17, the said court’s revocation of the denial decision made on January 14, 2015.

B. The defendant's claim for denial against the plaintiff is dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff (formerly changed: a social loan company) is a company with the purpose of monetary loan business, general loan support financial business, etc., and the debtor Dong Yang-man International Inc. (hereinafter “Dong Yang-man International”) is a company engaged in business such as management consulting, financial management, and credit management consulting, etc. around September 2013, the Plaintiff and Dong Yang-man International was affiliated with the business group “Dongyang-dong Group” composed of 59 affiliated companies domestically and overseas, such as the Dongyang Amyang, Dongyang Cement Co., Ltd. (hereinafter “Dong Yang-dong”) (hereinafter “Dongyang”) and Dong Yang-dong Securities Co., Ltd. (hereinafter “Dong Yang-dong”) and the Dong Yang Securities Co., Ltd.

B. On September 24, 2013, the Plaintiff lent 4,873,781,644 won (4.9 billion won - 26,218,356 won) (hereinafter “the instant loan”) at an annual interest rate of 9.3% per 21 days after receiving one promissory note (the maturity date: October 15, 2013; face value: 4.9 billion won) from the East Asian International (hereinafter “instant loan”).

C. On September 27, 2013, Dongyang International paid to the Plaintiff the remainder of KRW 4,877,527,123 ( KRW 4.9 billion - 22,472,877) (hereinafter “instant repayment”) obtained by deducting interest of the remaining period until the due date for the instant loan was due (hereinafter “instant repayment”).

D. On September 30, 2013, the East Asian International filed an application for commencing rehabilitation procedures with the Seoul Central District Court 2013 Ma188, and the above court decided on October 17, 2013 to commence rehabilitation procedures for the East Asian International (hereinafter “instant rehabilitation procedures”), the Defendant and the Nonparty were appointed as the co-manager of the East Asian International, and only the Defendant left as the administrator.

E. The Defendant filed a claim for denial on the ground that the instant repayment act constituted an act of denial under Article 100(1)1 and 3 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “debtor Rehabilitation Act”) on October 15, 2013, which is the date of repayment of loan in excess of debt by the same person, on the ground that the instant repayment act constitutes an act of denial under Article 100(1)1 and 3 of the same Act. The said court accepted the Defendant’s claim on January 14, 2015, and decided on “the Plaintiff” on the ground that the instant repayment act constitutes an act of denial, on the ground that it constitutes an act of denial (hereinafter “instant rejection decision”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 43 evidence, Eul 1 to 5 evidence (including provisional number), the purport of the whole pleadings

2. Determination

A. The parties' assertion

1) Plaintiff

The repayment of this case by the Dongyang International is made by means of money borrowed from the Dongyang Cement for the purpose of repaying the loan of this case against the plaintiff, and it is substantially limited to replacing the creditor of the Dongyang International from the plaintiff to the Dongyang Cement, and there is no decrease in the responsibility property of the Dongyang International. Accordingly, the repayment of this case is not subject to avoidance, since there is no hazard that is the general requirement of the avoidance power, it is not subject to the general requirement of the avoidance power. In addition, the repayment of this case was made in order to prevent the bankruptcy of the Dongyang Marine International and the Dongyang Marine Leisure, which is in fact in the holding company of the Dongyang Group at the same group, and to prevent the dissolution of the entire Dongyang Group.

2) Defendant

The repayment of this case to the Plaintiff in excess of debt constitutes an act of causing harm to other sacrifice creditors, and thus, is subject to the exercise of the right to set aside under Article 100(1)1 of the Debtor Rehabilitation Act, and is an act that does not belong to the debtor’s obligation due, and is committed within 60 days prior to the date on which the commencement of rehabilitation procedures for the same person in the same person in the same person is decided, and thus, is subject to the exercise of the right to set aside under Article 100(1)3 of the Debtor Rehabilitation Act.

B. Determination

1) Relevant legal principles (whether performance is harmful)

In cases where a debtor borrows funds from a third party in order to raise funds to extinguish the debt, such as repayment, the third party and the debtor agreed to use the borrowed funds to extinguish the specific debt, and repayment, etc. for the specific debt has been made in accordance with such agreement. In light of all the circumstances such as the time, circumstances, methods, etc. of the loan and repayment, it can be deemed that the repayment, etc. of the specific debt was actually made through the loan in question. In light of the terms and conditions of the loan such as interest, repayment period, whether to provide collateral or not, and the relationship between the third party and the debtor, etc., if special circumstances exist where the debtor's assets are not reduced after the extinction of the debt such as repayment, etc., compared with the loan transfer, the act of extinguishment of the debt such as repayment, etc., in question, are deemed as a whole and thus, there are special circumstances under which the debtor's assets are not extinguished due to the damage to the rehabilitation creditor, etc

2) Determination

A) According to each of the statements in Gap 1, 2, 18, 20, 22, 26, 27, 28, 30, 42, 43, and Eul 1 through 5 (including each number; hereinafter the same shall apply), the affiliates of the Gyeyang Group have continuously deteriorated its financial status since the financial crisis in 2008, and there was no particular good financial situation for the East Yang Leisure and the East Mayang Mayang Mayang Mayang Ma. (2) Although its operating income was recorded in 4.6 billion won as of December 31, 2012, the amount of interest costs was 48.6 billion won and interest costs were 48.6 billion won, and the amount of excess 3.5 billion won was 1.5 billion won and 1.3 billion won and 2.5 billion won and 3.5 billion won were 19.5 billion won and 3.5 billion won were 1.5 billion won and 3.5 billion won and 20.5 billion won were Ma 13.3.5 billion.5 billion.2.

B) However, in light of the following circumstances acknowledged by adding the overall purport of the pleadings to each of the statements in Gap evidence Nos. 7, 10, 13, 14, 18 through 23, 25, 27 through 33, 41 through 44, 40-3, 7, and 8, the facts acknowledged earlier alone do not constitute the act of performing the instant repayment for the benefit of a specific creditor, which constitutes an act of damaging the rehabilitation creditors, etc. of the same person, and there is no other evidence to acknowledge the harmfulness of the instant repayment.

Therefore, without examining whether the act of performance in this case is bona fide or reasonable, it cannot be deemed that the act of performance in this case is subject to avoidance under Article 100(1)1 and 3 of the Debtor Rehabilitation Act.

(1) Since July 2012, as the affiliate’s financial shortage continues, the same group provided mutual financial support within the group through acceptance and discount of the CP (company bills) among affiliates under the direction of the CP headquarters that has managed the entire funds of the same group from July 2012. On September 2013, 2013, the ratio dependent on the CP and the company bonds out of the total financing performance was increased to 93.4%, and among them, the CP acceptance among affiliates reaches 76.1% (46.3 billion won).

(2) The Strategic Planning Headquarters, through a financial conference with the financial staff of the two groups, identified the current status of funds such as the financing plan and the details of the funds between each affiliate and the financing plan of the financial staff of the two groups. Based on this, it prepared a “statement on the financial status of the major affiliate companies” and adjusted funds from time to time among each affiliate company. Each affiliate of the two groups at the time did not have to provide necessary funds without mutual financing, and there was a high risk that one company’s default will lead to the chain of other affiliate companies. Therefore, it implemented mutual financing instructions of the Strategic Planning Headquarters as it is.

(3) 2013. 9. 27. 동양인터내셔널은 43억 9,100만 원 상당의 신탁CP 만기가 돌아오는 등 추가 자금이 필요한 상황이었고, 동양레저 역시 14,130,000,000원 상당의 신탁CP 만기가 돌아오는 등 추가 자금이 필요한 상황이었다. 이에 전략기획본부는, ① 동양인터내셔널은 동양시멘트로부터 유연탄 선급금으로 68억 원을 지급받고, ㈜동양 등으로부터도 자금을 지원받은 뒤, 동양레저에 49억 원, 동양네트웍스에 10억 원, 만기가 돌아온 43억 9,100만 원 상당의 신탁CP를 지급하고, ② 원고는 동양시멘트로부터 49억 원, 동양네트웍스로부터 15억 원을 지급받아 동양레저에 64억 원을 지급함으로써 동양인터내셔널과 동양레저를 지원할 계획을 마련하였다.

However, as the fund-raising of the East Cement was delayed more than expected and the financial support was not provided on September 27, 2013. At the time, the CP purchase method used mainly at the time was impossible to directly provide the Plaintiff 4.9 billion won. In order to provide the Plaintiff with the funds without the CP issuance, the strategic planning headquarters revised the plan to pay the Plaintiff the amount of the flexible coal advance that the East Cement was to be paid to the Plaintiff in the East T-Sing International instead of immediately paying 4.9 billion won to the Plaintiff (hereinafter “the instant advance”). In order to provide the funds without the CP issuance, it revised the plan to pay the Plaintiff the amount equivalent to 12.161,00,000 won by paying the instant loan to the Plaintiff as part of the instant advance.

(4) On September 27, 2013, Dongyang cement deposited KRW 12,161,00,000 for the instant advance in the East Asian International at around 18:00 on September 27, 2013, pursuant to the Strategic Planning Headquarters’s funding plan, and the East Asian International paid KRW 4,87,527,123 of the instant loan out of 20:10 on the same day to the Plaintiff, and the Plaintiff paid KRW 6,092,862,330 for the East Asian Leisure on the same day.

(5) From the Seoul Central District Court 2013 Ma188, the said Cement was reported on September 27, 2013 to pay the instant advance payment of 12,161,00,000 won to the Winter International, and was reflected in the accounts settlement of accounts in 2013. However, it was reasonable to view the advance payment of 201 billion won as an advance payment of 200 billion won for the purpose of the instant advance payment of 12,161,000 won for the purpose of the instant advance payment of 201 billion won for the purpose of the settlement of accounts. However, the said advance payment of 1.3 billion won for the purpose of the instant advance payment of 201 billion won for the purpose of the settlement of 201 billion won for the purpose of the instant advance payment of 201 billion won for the purpose of the settlement of 201 billion won for the purpose of the settlement of 201 billion won for the instant advance payment of 201 billion won for the instant advance payment of funds.

(6) Examining the financial situation of the Eastern Group, the establishment and revision of the funding plan centered on the Strategic Planning Headquarters, and the execution process thereof, the Plaintiff paid the instant advance for the fund support of the Eastern Marine International and the Winter Leisure. In order to support the East Marine Leisure, the Plaintiff clearly recognizes the fact that part of the instant advance payment should be paid to the Plaintiff by the method of repaying the instant loan, and conducted the fund execution in accordance with the direction of the Strategic Planning Headquarters.

(7) The instant loan was made against October 15, 2013 at an interest rate of 9.3% per annum, and the instant advance payment was made due and interest rates were not fixed, and thus, the assets of the same person with mutual interest after the expiration of the obligation, such as repayment, was not reduced when compared with the loan transfer.

3. Conclusion

Therefore, the plaintiff's claim in this case is reasonable, and the above court revoked the rejection decision as of January 14, 2015, and dismissed the defendant's rejection claim. The judgment of the court of first instance is unfair in conclusion, and it is so revoked and it is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Justice)