E. S. S. L.S. Corporation (Attorney Thai-soo, Counsel for the defendant-appellant)

Korean Bank (Law Firm Chungcheong, Attorney Kim Jong-young, Counsel for the defendant-appellant)

September 3, 2013

1. The plaintiff's claim is dismissed.

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

On January 31, 2012, it is confirmed that there is no principal amounting to KRW 99 million based on a discount contract (B2B, number omitted) against the Defendant and no interest liability on this.

1. Basic facts

A. On September 5, 2011, the Plaintiff entered into a contract with the Musan Construction Co., Ltd. (hereinafter “Musan Construction”), with the purport that the Plaintiff would engage in a model house display (hereinafter “instant construction”) of the Sungdong-dong apartment reconstruction project and receive KRW 99 million from the Musan Construction in return. On November 201, 201, the Plaintiff acquired the bonds of KRW 99 million in accordance with the said contract for Musan Construction (hereinafter “the instant bonds”).

B. On the other hand, the defendant entered into an agreement on May 15, 2007 with the content that set the total amount of credit sales claims (B2B) at KRW 60 billion to the creditor under certain conditions in the event that the person who provided goods or services to the party who is the customer in the brick construction files an application for a loan to the defendant as security against the electronic claim against the brick construction (the defendant is the "BB loan") with the party who provided the goods or services to the defendant (the defendant is the party who provided the credit sales claims by electronic means).

C. On May 31, 2007, the Plaintiff filed an application with the Defendant for the conclusion of the above agreement by submitting documents necessary for the Internet agreement on loan against loan against security of credit sales claims, which covers electronic bonds on the construction of brickd construction. On the same day, the Plaintiff and the Defendant concluded the above loan agreement through the Internet (hereinafter “instant loan agreement”).

D. The loan agreement of this case applies "the basic terms and conditions of the electronic method sales bond settlement system" to the loan agreement of this case. The main contents of the above terms and conditions are as follows.

Article 2 (Definition of Terms) (1) The definitions of terms used in this Clause shall be as follows:

1. The term "electronic sales bond" means the electronic payment means that a purchasing enterprise designates a selling enterprise as a creditor and issues to pay a specified amount at a fixed period of time;

3. The term "purchase enterprise" means an enterprise which purchases goods and services from a selling enterprise and issues electronic credit sales bonds;

4. The term "sale enterprise" means an enterprise provided to a purchasing enterprise with goods, services, etc. and settled with credit sales bonds in an electronic form;

5. The term "loan on security of credit sales claims" (hereinafter referred to as "loan on security of credit sales claims") means a loan a bank handled by a purchasing enterprise as the debtor on the security of the credit sales claims arising from a purchasing enterprise.

6. The term "outstandings with the right to demand reimbursement" means a loan for which the bank can exercise its right to demand reimbursement, in the event that the purchasing enterprise fails to settle the credit sales claims at maturity after the bank executes the external cover with which it has sold the credit sales claims in the electronic form from the selling enterprise and the purchaser fails to pay such credit sales claims at maturity;

7. The term "out of the right to demand reimbursement" means a loan that a bank is unable to exercise its right to demand reimbursement, in the event that the purchasing enterprise fails to settle the credit sales claims with the maturity of payment after the bank executes the external cover with which it has sold the credit sales claims in the electronic form from the selling enterprise and the purchaser fails to pay them at the maturity;

E. In light of the contents of the above terms and conditions, the loan against security of credit sales claims, such as the instant loan, is a case where the purchasing company failed to repay the loan to the lending institution, and the purchasing company has the right to demand reimbursement against the buyer, and there is no right to demand reimbursement against the buyer (in the case of electronic, the lending institution acquires the bond by means of transfer, and in the case of the latter, the bond is purchased).

F. Around December 2, 2011, the Plaintiff received credit sales bonds of the instant case from the construction of a brickd acid, and applied for a loan under the instant loan agreement to the Defendant. On January 31, 2012, the Defendant paid KRW 96,383,146 (interest rate of 8.04% and maturity date of payment May 30, 2012) to the Plaintiff after acquiring the instant bonds from the Plaintiff, and the Defendant paid the instant bonds to the Plaintiff.

G. On May 30, 2012, a brick construction did not repay the above KRW 99 million to the Defendant. The Defendant demanded the Plaintiff to repay the said KRW 99 million around that time.

[Reasons for Recognition] Facts without dispute, Gap 5, 9, 10, 12, Eul 2 and 3 evidence, respectively, 1,2, Eul 4-2, Eul 9-2 and 3, and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The assertion on the nature of the loan agreement of this case

1) The assertion

The Plaintiff did not have entered into an agreement to obtain a loan from the Defendant. However, the Plaintiff did not sell an electronic bill issued from the construction of the brickd Construction to the Defendant and received money from the Defendant as stated in the basic facts. Thus, the Defendant cannot claim for the refund of the amount equivalent to the bill on the ground that construction was unable to pay the said amount. Even if the instant loan agreement was concluded, there is no evidence to prove that the Plaintiff has the right to claim for the reimbursement of the loan, if the construction of the brickd Construction fails to pay the amount on the due date under the said agreement.

2) Determination

In full view of the evidence adopted earlier and evidence Nos. 5, 13, 15 through 19, and 20 through 23 (including serial numbers), and the overall purport of the pleadings as a result of the verification by this court, the defendant is carrying out loan business by strictly separating loans (the defendant is referred to as "B2B loan") for which the defendant has the right to demand reimbursement from the lender if he does not pay the credit acquired as security, and loans without the right to demand reimbursement (the defendant is referred to as "B2B loan"). The plaintiff submitted the minutes of the board of directors necessary for the loan agreement of this case to the defendant. The plaintiff submitted the above minutes of the meeting of this case to the defendant, "B2B loan agreement from the defendant," and the loan item is "B20 through 19," and since it is stated that the loan item was "credit loan loan agreement of this case with the defendant's representative director and issuer of Hyundai Construction Agreement, Korea Stock Company, etc., and that the plaintiff was not aware of the contents of the loan agreement of this case.

B. Determination as to the assertion that the instant loan agreement is null and void in violation of the Act on the Regulation of Terms and Conditions (hereinafter “Standard Contracts Regulation Act”).

1) Determination on the assertion of violation of the duty to specify or explain

The Plaintiff asserts that Article 7 of the Act on the Regulation of Terms and Conditions or the Electronic Financial Transaction Act provides for the right to demand reimbursement and that the content of the Internet screen for the conclusion of the loan agreement of this case shall not be immediately seen, and that the contents of the Internet screen shall be intentionally operated, so it cannot be deemed that the content of the contract is clearly expressed in a manner expected in accordance with the type of contract. Therefore, the Defendant did not fulfill the duty to demand reimbursement. Thus, the Defendant asserted that the provision on the right to demand reimbursement cannot be asserted as the content of the loan agreement

On the Internet screen for the conclusion of the loan agreement of this case, the defendant also is the defendant that the provision on the right to demand reimbursement is not immediately seen, and the party to the agreement seems to operate the screen tower. On the other hand, according to the result of the verification by the court, it can be recognized that the party who wants to enter into an Internet agreement can confirm that the content of the loan agreement of this case was read. Thus, it is reasonable to view that the plaintiff entered into an agreement with the knowledge of the content of the right to demand reimbursement under the loan agreement

In addition, if the terms and conditions are generally and commonly used in the transaction, and the customer could have sufficiently predicted without any separate explanation, or if it is merely an additional or incidental extent to the provisions already determined by the laws and regulations, it cannot be said that the business operator has an obligation to clearly explain and explain such matters (see Supreme Court Decision 2010Da57466, Jun. 28, 2012, etc.). As seen earlier, if the Plaintiff had been fully aware of the right to demand reimbursement even before the conclusion of the loan agreement in this case, even if the loan agreement in this case had been concluded, the Plaintiff could not be deemed as a violation of the duty to explain even if the Defendant did not explicitly explain such matters.

2) Determination on the assertion that the provision of the right to demand reimbursement is subject to limited interpretation

The Plaintiff asserts that the Plaintiff’s right to demand the reimbursement of the loan agreement of this case provides that “if the customer fails to pay all or part of the sales claim at the due date, the Plaintiff shall immediately repay the transaction claim,” and that the scope of “if the transaction partner fails to pay the sales claim at the due date, the transaction partner shall not be limited to the occurrence of legal causes for failure to pay the transaction partner, such as the failure to pay the transaction partner, the decision to commence the rehabilitation procedure, etc., and the transaction partner’s voluntary and intentional payment shall not be included.” The Plaintiff asserts that the Defendant shall not be admitted to the right to demand reimbursement in the event where the construction procedure, which is the transaction partner, is in contravention of the application for commencement

Generally, a financial institution determines whether to grant a loan by evaluating the credit of the applicant and the value of the collateral provided by the applicant. The defendant, first of all, did not provide any security other than the claim of this case from the plaintiff, which is a small and medium enterprise, based on the credit of brick Construction, which is a customer, and then reduced interpretation of the method of exercising the right to demand reimbursement of the loan agreement of this case which appears to allow the plaintiff to pay only if the brick Construction fails to pay the debt of this case, as alleged by the plaintiff. Thus, the plaintiff's above assertion is without merit.

3) Determination as to the assertion that the terms and conditions are invalid remarkably unfair

The plaintiff asserts that the provision on the right to demand the reimbursement of the loan agreement of this case, which allows the defendant to demand the repayment of the loan of this case to the plaintiff in the event that the construction of this case was not able to repay the bonds of this case due to the insolvency of brick construction, is also a certain role in the defendant's negligence, which is the principal bank, and thus, it is reasonable to impose the defendant's disadvantage due to the insolvency of brick construction. Even if the defendant was not responsible for the defendant in the crisis of brick construction, even though the defendant is not responsible for the defendant's fault, which is the financial institution making profits from the risk of the defect of brick construction, which is the customer, even though the defendant, who is a financial institution making profits from the occurrence of credit risk, bears the risk of the defect of the brick construction, and thus,

There is no evidence to acknowledge that the defect of brick construction is due to the fault of the defendant, and there is no evidence to support that the defendant's exercise of his/her right of recourse falls under a provision that goes beyond the risk of the defendant's burden to the customer without reasonable grounds.

4) Determination as to the assertion that the clause is a clause that loses fairness

The Plaintiff asserts that the provision on the right to demand reimbursement of this case is presumed to lose fairness by “a clause which is unreasonably unfavorable to a customer” under Article 6(2) of the Act on the Regulation of Terms and Conditions and “a clause which is difficult for a customer to anticipate in light of all relevant matters, such as the type of transaction of the contract.” However, in light of the fact that the Plaintiff had traded the same contents prior to the instant loan agreement with the Defendant, the said assertion is without merit.

C. Determination on the assertion of violation of the good faith principle

On November 30, 201, the Plaintiff transferred the construction cost of KRW 99 million from the Seongbuk-si Apartment Housing Reconstruction Association, the original owner of the instant construction project, to the Defendant, but it was ordered for the Plaintiff to transfer the payment to the wall construction account opened by the Defendant and to issue electronic bonds with respect to the instant claim. As such, the Defendant’s claim for the repayment of the instant loan, which secured the claim that the Plaintiff received, was contrary to the good faith principle. According to each of the records of evidence No. 17-1 and No. 17-2, the Plaintiff transferred the payment of KRW 99 million to one bank of the Plaintiff on November 30, 201, and the said union did not directly intervene in the instant agreement even if the Defendant did not directly exercise its right to demand reimbursement based on such circumstances.

(d) Claim on the validity of authorization of a rehabilitation plan for brick construction;

1) The assertion

In the rehabilitation procedure that is in progress with respect to the building of brick mountain, the building of brick mountain was denied the claim of this case against the plaintiff and the time for the defendant. The rehabilitation plan stipulates that 75% of the above claim amount shall be converted into equity and the remainder shall be repaid in installments for ten years, and the rehabilitation plan was approved on November 1, 2012. Accordingly, the rehabilitation plan was approved on November 12, 2012. Accordingly, it is unreasonable for the defendant who has exercised the right to dispose of the claim of this case to claim the repayment of the loan of this case against the plaintiff by exercising the right to demand the reimbursement of the loan of this case in the rehabilitation procedure for the building of brick mountain.

2) Determination

According to the statement of evidence No. 25 and the fact-finding with respect to the administrator of the building company of the rehabilitation company of this court, it is reasonable to view that the construction of the building company of this case denied the claim of this case against the plaintiff and accepted the defendant, and that the rehabilitation plan of this case converted 75% of the above claim amount into equity and decided to make installment payments for 10 years, and that the above rehabilitation plan of this case was authorized on November 1, 2012. Meanwhile, as long as the loan agreement of this case recognizes the defendant's right to demand reimbursement, the defendant acquired the claim of this case by means of transfer, and that the defendant took part in the rehabilitation procedure of the building company of this case as the mortgagee of the mortgage of this case and converted 75% of the claim amount to all creditors according to the rehabilitation plan applied to the whole creditor is to preserve the value of the security, and therefore it is reasonable to evaluate that the defendant acquired the shares of the building of the building of the building as a substitute for the claim of this case as a security. Therefore, the plaintiff's assertion

E. Determination as to the allegation of offset

1) Determination as to the assertion regarding the claim for damages based on the violation of Article 148 of the Civil Act

The plaintiff's exercise of the right to demand reimbursement of this case is a condition for the non-payment of the claim of this case in the Musan Construction. Since the part of the above condition was negligent due to the defendant's failure to properly supervise the loan against security of illegal and mal credit credit for the Musan Construction during the period of the non-payment of the above condition, the plaintiff's interest was infringed upon due to the non-performance of the above condition, the defendant is liable to compensate the plaintiff's damage, and the plaintiff has no evidence to acknowledge it.

2) Determination as to the Defendant’s claim for damages arising from the Defendant’s occupational negligence

The plaintiff argues that the plaintiff did not pay the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the loan amount of the plaintiff is identical to the amount of the defendant's right of reimbursement, since the plaintiff has the damage amount against the defendant and the amount is equal to the amount of the defendant's right of reimbursement.

On May 15, 2007, the Plaintiff concluded a mutual support agreement with the cooperation company and set the limit of 60 billion won for the execution of loan against security of credit sales claims in an electronic method. However, the Defendant’s assertion is without merit, unless it is proven that construction of walls was defective at the time of the conclusion of the above agreement, or that the Defendant could have anticipated that the borrower would be liable for the repayment due to the failure to repay his/her obligation to the transaction company that received loan against credit sales claims under the above agreement. Thus, the Defendant cannot be said to bear the obligation to compensate the damages incurred by the Plaintiff solely on the ground that the Plaintiff set the limit of loan against loan against loan against credit sales claims at 60 billion won with the brick Construction.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges in the District of Justice