Han Bank Co., Ltd. and one other (Law Firm Sejong, Attorneys Lee Young-gu et al., Counsel for the plaintiff-appellant)

Korea Credit Guarantee Fund (Law Firm, Attorneys Lee Sung-won et al., Counsel for the defendant-appellant)

1. All of the instant applications are dismissed.

2. The costs of the lawsuit shall be borne by the applicant.

1. The respondent shall notify the applicant that the applicant promotion company will provide a credit guarantee for the obligations listed in the separate sheet that the applicant promotion company will pay to the applicant bank and issue a guarantee for the obligations listed in the separate sheet.

2. In the event that the respondent does not perform its obligations under Paragraph 1, the respondent shall pay to the applicant the amount calculated at the rate of KRW 10,000,000 per day from the day following the service of the original copy of the decision of this case.

1. Facts of vindication;

In full view of the purport of the records and the whole examination, the following facts are substantiated.

A. On February 24, 2011, the applicant promotion enterprise corporation (hereinafter “promotion enterprise”) commenced the joint management procedures for creditor banks according to the resolution of the autonomous council of creditor banks (hereinafter “creditor banks”) convened pursuant to the Operating Convention by the creditor banks’ council. The applicant bank (hereinafter “Korea Bank”) is the principal creditor bank of the creditor banks’ council, and the respondent is the member of the creditor banks’ council.

B. On April 29, 201, where the proceedings for joint administration with respect to the applicant promotion company were in progress, the Council of Creditor Banks was held on April 29, 201. The Council of Creditor Banks was presented to the second creditor banks the seven plans for business normalization including the agenda items for providing new funds to the applicant promotion company (the agenda item No. 4). Although the respondent expressed his/her opposition to the foregoing agenda item, the said agenda item was resolved with the consent of other creditor banks (hereinafter “the resolution for new funds of this case”). The main contents of the resolution for the new funds of this case are as follows.

(2) The creditor banks council shall provide 100% guarantee to the principal creditor bank or financial institutions wishing to provide new funds as security, i.e., 00 percent of the amount of new funds to be borne by the creditor banks (unit: 1.0 billion won): 1,000 won per annum of 1205.4% per annum of 406.3% per annum of 1205.4% per annum of the new bank (1.48% per annum of 1205.8% per annum of 79.8% per annum of 24.19.8% per annum of 25% per annum of the amount of new funds to be borne by the creditor banks (unit: 1.00 billion won): 1,005.3% of the amount of loans to be borne by the creditor banks (the amount of loans to be borne by the principal creditor bank or the financial institutions wishing to provide new funds as security).

C. On May 19, 201, the creditor bank council concluded a special agreement to implement the management normalization plan (hereinafter “instant management normalization agreement”) with the applicant promotion company, the applicant’s major shareholder company, the applicant’s major shareholder company, etc.

D. On the other hand, as the Corporate Restructuring Promotion Act (amended by Act No. 10866, Jul. 21, 201; hereinafter “former Promotion Act”) was enacted and implemented on May 19, 2011, a creditor financial institution’s joint management proceeding under the former Promotion Act (hereinafter “instant joint management proceeding”) has commenced on January 17, 201 with respect to the applicant promotion company. The first creditor financial institution’s creditor financial council under the procedures for the workout of this case (including the resolution for the instant joint management proceeding) continues to apply to the workout proceeding, and the first creditor financial institution under the former creditor bank’s joint management proceeding (including the resolution for the instant new financial support) is also applicable to the creditor financial institution newly participating under the Promotion Act.

E. However, with respect to KRW 10 billion as 10 billion as Respondent's share in the resolution on new funds of this case, the applicant promotion enterprise applied for a loan against the applicant bank, and the applicant bank approved the loan on the condition of the respondent's credit guarantee, but the respondent refused to issue a credit guarantee certificate for the above loan.

2. Summary of the claimant's assertion

In the joint management proceeding of creditor banks, the applicant promoting company of this case made a resolution to provide the new fund of this case, and the respondent did not request the above resolution to purchase the bonds, and the creditor financial institutions have consented to the above resolution. In the workout proceeding of this case under the Promotion Act, creditor financial institutions have made a resolution that the above new fund of this case will continue to apply. The respondent is obligated to notify the credit guarantee intent and issue a credit guarantee statement for the obligations listed in the attached Table according to the above resolution

Therefore, applicants seek provisional disposition such as the purport of the application against the respondent.

3. Relevant statutes;

(1) Where it is deemed necessary for the business normalization of an enterprise with insolvency signs under the main sentence of Article 10 (Adjustment of Claims, etc.) (1) of the Promotion Act included in the main sentence, the creditor financial institutions may adjust claims to the relevant enterprise or extend new credit (excluding an alteration of the terms and conditions of existing credit extension; hereinafter the same shall apply). In such cases, the readjustment of claims shall be conducted fairly and equally in consideration of the order of rights.

4. Determination

A. Determination on the preserved right

(1) Although the respondent expressed an objection to the resolution of the instant new fund support, the fact that the respondent did not exercise the right to claim a claim under Article 20 of the Promotion Act [Article 21 of the Operating Convention of the Creditor Bank Council (hereinafter “Operation Convention”)] does not conflict between the parties, and the respondent is deemed to have consented to the resolution of the instant new fund support pursuant to the above provision, and the validity of the resolution shall be bound.

(2) However, with respect to whether a creditor financial institution can file a claim against the creditor financial institution for the performance of its obligations determined by the resolution, the Promotion Act does not provide any basis for such claim, but only provides for the creditor financial institution's liability for damages (Article 21). As in this case, the respondent's actual enforcement of credit guarantee contracts against the respondent has a limitation on freedom of contract guaranteed by the Constitution. Therefore, there should be clear statutory provisions on the procedures for such restriction. Thus, it is difficult to view that the creditor financial institution under Article 18 (2) of the Promotion Act has the right to seek a lawsuit against the creditor financial institution (applicant promotion company) or the principal creditor bank (applicant bank) solely based on the provision that "the creditor financial institution must faithfully perform the matters resolved by the resolution of the Council." In addition, it is difficult to view that the respondent is entitled to have the right to seek a direct performance of the obligation against the creditor financial institution (in particular, in the case of the applicant promotion company, the respondent is not a party participating in the above resolution.

(3) Therefore, apart from the fact that the respondent is able to enforce liability against the respondent for damages suffered by the applicant bank or creditor financial institutions due to the failure of the respondent to implement the above resolution, it is difficult to deem the applicant as able to seek implementation of a credit guarantee contract directly against the respondent only with the materials submitted up to now. Thus, the applicant's application of this case is insufficient to vindicate the right to be preserved.

B. Determination on the necessity of preservation

(1) In the case of a so-called satisfactory provisional disposition which forms a relation of rights substantially identical to the content to be sought through the judgment on the merits, the judgment on the merits results in the same result as obtaining a final satisfaction before the judgment on the merits is rendered. However, considering that the respondent has brought an opportunity to see through the lawsuit on the merits before he/she has brought an opportunity to see such result, a higher level of proof is required as to the right to be preserved and the necessity of the preservation than the ordinary preservative measure. Such legal principle can be equally applied not only to a satisfactory provisional disposition but also to a corresponding provisional disposition.

(2) In light of the above legal principles, it is reasonable to deem that the instant application constitutes a satisfactory provisional disposition or a similar provisional disposition in terms of compelling the respondent to enter into a credit guarantee contract prior to the judgment on the merits of the instant application, for which the applicant, “the notification of a credit guarantee doctor, the issuance of a credit guarantee certificate, and the indirect compulsory performance.”

However, in the event that the respondent's failure to implement the matters stipulated in the resolution for new funds of this case causes damage to the respondent due to the failure of the respondent to perform the matters stipulated in the resolution for new funds of this case, it seems that the respondent can seek compensation for the damage by means of the lawsuit against the respondent pursuant to Article 21 of the Promotion Act. Considering the above circumstances and all the circumstances indicated in the record, the data submitted by the applicants are likely to cause damage to the respondent due to the delay in realizing the right or make it difficult to achieve the purpose of the lawsuit if it is based on the judgment on the merits. In other words, it is difficult to view that the necessity for preservation has been sufficiently explained to the extent required

4. Conclusion

Thus, the applicant's application of this case is dismissed as there is no reason to justify the lack of vindication of the right to be preserved and the necessity of preservation.

Judges Kim Jae-ho (Presiding Judge)