[1] The concept of the transfer of contracts under the former Mutual Savings and Finance Company Act and whether the transfer of contracts only refers to the transfer of all rights and obligations (negative)

[2] The scope of assets of an insolvent financial institution that is transferred to an underwriting financial institution by contract transfer under the former Mutual Savings and Finance Act

[3] The case holding that the obligation other than the account books shall not be included in the contract transfer agreement and the approval of the contract transfer under the former Mutual Savings and Finance Company Act

[1] As the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998 and amended by Act No. 6203 of Jan. 28, 200) and the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5257 of Jan. 13, 1997; Act No. 5549 of Sep. 14, 1998; Act No. 6178 of Jan. 21, 200; Act No. 6178 of Jan. 21, 200), it is reasonable to view that the concept of the transfer of contracts and the transfer of contracts under the former Mutual Savings and Finance Company Act are not limited to the transfer of contracts and all rights and obligations under the Act on the Structural Improvement of the Financial Industry, but it is also reasonable to view that only the transfer of contracts and obligations under Article 10(1)8 of the former Act, including the transfer of contracts, are subject to the transfer of contracts.

[2] In the case of partial transfer of the contract under the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998, which was amended by Act No. 6203 of Jan. 28, 200), as well as in the case of partial transfer of the contract due to financial transactions such as deposit and loan, etc., all active and small assets of an insolvent financial institution such as transfer of business is not naturally transferred to an acquiring financial institution, such as transfer of business or merger, and the scope of acquisition is determined by the contents of the contract transfer agreement and authorization or decision of contract transfer. Meanwhile, if Article 21 subparagraph 3 of the former Mutual Savings and Finance Company Act defines all transfer of the contract as one of the grounds for dissolution of the mutual Savings and Finance Company, it is understood that if all of the "contract due to financial transactions such as deposit and loan, etc." of the insolvent Mutual Savings and Finance Company is transferred to the mutual Savings and Finance Company, it is understood that the entire transfer of the contract becomes null and void.

[3] The case holding that any obligation other than the account books shall not be included in the contents of the agreement and approval on the transfer of contracts under the former Mutual Savings and Finance Company Act

[1] Article 21 subparagraph 3, Article 24-8, Article 24-9, Article 24-11, and Article 24-12 of the former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998), Article 10 (1) 8, and Article 14-2 (1) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 6178 of Jan. 21, 200), Article 21 subparagraph 3, Article 24-8, Article 24-9, Article 24-11, and Article 24-12 of the former Mutual Savings and Finance Company Act (amended by Act No. 6203 of Jan. 13, 1998), Article 20-18 of the former Mutual Savings and Finance Company Act (amended by Act No. 6201 of Jan. 28, 200), Article 20-18 of the former Act

Korea Deposit Insurance Corporation (Law Firm Han field, Attorneys Park Jong-ju et al., Counsel for the bankruptcy) in bankruptcy of the bankrupt mutual savings and finance company, which is a litigation taking over the lawsuit of the Chungcheong Savings and Finance Company

Other Party

Daejeon High Court Order 2001Kaman31 dated December 3, 2001

The order of the court below is reversed, and the case is remanded to Daejeon High Court.

I examine the first ground for special appeal.

1. According to the order of the court below, the court below rejected the application based on the following determination as to the assertion that the special appellant (applicant) agreed to transfer only the contractual relationship on the account book at the time of agreement on the transfer of the contract of this case to the Seocho Seosan mutual savings and finance company (hereinafter referred to as the "Seosan mutual savings and finance company"), and the obligation other than the account book (hereinafter referred to as the "liability other than the account book"), such as the loan obligation of this case to the other party of the Seosan mutual savings and finance company (hereinafter referred to as the "Seosan mutual savings and finance company"), is still a debtor on the loan of this case since it is not included in the subject of the transfer, and since the special appellant did not have succeeded to it, the transfer of the execution clause of this case

In light of the fact that, while preparing a written agreement on the transfer of contracts of this case, it is not clear that the obligation of this case is included in the scope of the transfer subject to the transfer subject to the transfer subject, it is not enough to say that the obligation of this case was actively excluded from the transfer subject to the transfer subject to the transfer subject to the transfer subject to the transfer subject matter, but that, with respect to the assets outside the country, the agreement is made between the Seosansan Treasury and the Chungcheong Seosan Treasury to change its name to the Chungcheong Seosan Treasury, and that the transfer of all the contracts under Article 21 subparagraph 3 of the Mutual Saving and Finance Company Act is one of the grounds for dissolution of the mutual saving and Finance Company, and that, after the ruling on the approval of the transfer of contracts of this case, the Seosan Treasury has completed the registration of dissolution on September 21, 1998 on the ground that the transfer of all the contracts under this Act was made on September 21, 198, it is not sufficient to say that the contract of this case was made within the scope of the transfer subject matter, as well as well as there are no special circumstances.

2. However, the lower court’s determination is difficult to accept.

A. The former Mutual Savings and Finance Company Act (amended by Act No. 5501 of Jan. 13, 1998 and amended by Act No. 6203 of Jan. 28, 200) and the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5257 of Jan. 13, 1997; Act No. 5549 of Sep. 14, 1998; Act No. 6178 of Jan. 21, 2000; hereinafter referred to as the "amended Act of Jan. 13, 1997" and the "Act on the Structural Improvement of the Financial Industry" of Sep. 14, 1998 are different from the provisions on the transfer of contracts.

However, in light of the fact that Article 10 (1) 8 of the Act on the Structural Improvement of the Financial Industry of September 14, 1998 provides that "transfer of contracts related to financial transactions, such as deposit, loan, etc. (hereinafter "transfer of contracts"), the concept of transfer of contracts under the former Mutual Savings and Finance Act shall be deemed as same, and the distinction between transfer of all or part of the contract and transfer of contracts shall be based on whether all or part of the contract is transferred, and as seen in Article 14-2 (1) of the Act on the Structural Improvement of the Financial Industry of September 14, 1998, it shall be assumed that the transfer of contracts under the former Mutual Savings and Finance Act was made not only the transfer of contracts and rights and obligations, but also the transfer of contracts and obligations under the former Mutual Savings and Finance Act, even if there is a decision of transfer of contracts as seen in Article 14-2 (1) of the amended Act on September 14, 1998."

Furthermore, it is understood that the transfer of all of the "contract due to financial transactions, such as deposit and loan," as well as the transfer of all of the "contract due to financial transactions," is not naturally transferred to the acquiring financial institution, such as transfer of business or merger, and the scope of acquisition is determined by the contents of the contract transfer agreement, authorization or decision on contract transfer. Meanwhile, it is understood that Article 21 subparagraph 3 of the former Mutual Savings and Finance Act defines the transfer of all of the contract as one of the grounds for dissolution of the mutual savings and finance company if all of the "contract due to financial transactions, such as deposit and loan," of the insolvent mutual savings and finance company transfers all of the "contract due to financial transactions, such as deposit and loan," to the acquiring mutual savings and finance company to the acquiring mutual savings and finance company, the transfer of all

B. On August 26, 1998 with respect to this case, Article 12 of the Statement of Agreement on Contracts concluded on August 26, 1998 (hereinafter referred to as the "Written Agreement") provides that "Seosan Treasury shall decide to transfer the entire contract in accordance with the provisions of Article 23-10 of the Mutual Saving and Finance Company Act." Accordingly, after obtaining the approval of the transfer of the contract on September 4 of the same year, the registration of dissolution was completed as of September 21 of the same year as of September 21 of the same year. However, Article 3 lists the scope of the transfer of the contract and provides that it shall be transferred or acquired as shown in the attached Table 38, and in particular, Article 9 provides that it shall not be deemed that it has any obligation to repay debts other than the transfer of the contract by Seo Seosan Treasury under Article 3, and it shall not be deemed that it is subject to the change in the name of the chief director of the Mutual Saving and Finance Company's terms and conditions of transfer of the contract."

In addition, when transferring contracts through the agreement of this case, it constitutes a fraudulent act to exclude the loan obligations of this case from those subject to the transfer of contracts. The claim for the grant of the succeeding execution clause of this case cannot be the basis for the assertion.

Nevertheless, the court below determined that the loan obligations in this case are subject to the transfer of contracts only for the reasons stated in its holding. The court below erred in the misapprehension of the legal principles on the transfer of contracts through consultation under the former Mutual Saving and Finance Act, and in the interpretation of the contract transfer agreement and the contents of authorization, which affected the judgment.

The grounds for the special appeal that points out this out are with merit.

3. Therefore, without examining the remaining grounds for appeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)