In a case where the reorganization company provided security to a creditor without receiving any monetary payment from the principal debtor after the joint guarantee, whether it constitutes a gratuitous act under Article 78 (1) 4 of the Company Reorganization Act even if the joint and several liability obligations of the reorganization company were deferred at the time (affirmative)

The "free act" under Article 78 (1) 4 of the Company Reorganization Act refers to an act of reducing active property without receiving any consideration or increasing a debt, i.e., small property. The reorganization company's act of transferring golf membership owned by it to the creditor within six months before the date of the bankruptcy without receiving any monetary payment from the principal debtor as a joint and several surety of the principal debtor pursuant to a bill transaction agreement, and each real estate owned by it constitutes a free act under Article 78 (1) 4 of the Company Reorganization Act. The reorganization company's act of establishing each collateral security in the future of the creditors in each real estate owned by it constitutes a free act under Article 78 (1) 4 of the Company Reorganization Act. The reorganization company's act of bearing joint and several liability for the principal debtor at the time of the above security, or

Article 78 (1) 4 of the Company Reorganization Act

Plaintiff (Attorney Lee Jae-chul et al., Counsel for the plaintiff-appellant)

The administrator of an enlightenment Co., Ltd. (Attorney Cho Jong-hoon, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na15854 delivered on November 14, 2000

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. The lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

A. Under joint and several sureties such as an enlightenment Co., Ltd. (hereinafter referred to as "recursor company, whether later or later before the commencement of company reorganization procedures"), the Plaintiff concluded a bill trading agreement with the Korean Institute of Enlightenment Co., Ltd. (hereinafter referred to as "non-party company"), with ① trading limit on April 15, 1995, KRW 1.7 billion, five years, ② trading limit on April 19, 1996, ② trading limit on April 19, 1996, KRW 50 million (total amount of KRW 2.2 billion), promissory notes trading agreement with the trading period as of April 15, 200, ③ trading limit on August 30, 1997, with the trading period as of April 15, 200.

B. Under each of the above agreements, the Plaintiff and the Nonparty Company traded the discount of the bill at a discount of the Nonparty’s issuance of the bill, the maturity of which is three months after the maturity, and extended the maturity by re-afusing the newly issued bill on the maturity date of each discount.

C. However, when the financial standing of the non-party company becomes worse and it is no longer possible to issue bills, the reorganization company issued bills with a face value of KRW 2.7 billion to the non-party company eight times from December 12, 1997 to January 13, 1998, and re-issued bills with a face value of KRW 2.7 billion on the maturity date, and the non-party company extended the maturity date of the existing obligations to the plaintiff by means of endorsement and transfer to the plaintiff. The reorganization company finally issued bills with a face value of KRW 2.7 billion on January 13, 1998 and endorsement and transfer them to the plaintiff, but the above bills were refused to pay the above maturity date.

D. Around November 1997, the reorganization company requested the Plaintiff to extend the maturity of the discounted bill back to the maturity of the Plaintiff when the financial situation of the non-party company aggravated, and transferred 20 golf course membership owned by the reorganization company on November 28, 1997, and 5 golf course membership on December 11, 1997, respectively, to the Plaintiff in order to guarantee the guaranteed obligation under each of the above bill transaction agreements.

E. On January 22, 1998, the reorganization company filed an application for commencement of the company with the Seoul District Court on February 12, 1998. On December 5, 1998, the order of commencement of the company reorganization procedure was issued from the above court to 98m973, and the company reorganization procedure was in progress. On January 4, 1999, the plaintiff filed a report with the above court on January 4, 1999, on the ground that the above court failed to receive a loan under each of the instant bills transaction agreements from the non-party company, and on the ground that the loans under each of the instant bills transaction agreements were not repaid by the non-party company, 3,106,479,452 won (2.7 billion won of the bill loans as of January 13, 1998 + 406,479,452 won interest from July 1, 198 to December 4, 199.

2. The plaintiff sought the confirmation of the above security against the defendant, and the defendant asserted the avoidance power under Article 78 (1) 4 of the Company Reorganization Act, the court below determined as follows based on the above factual basis.

A. As to the act of establishing a security interest of the reorganization company, the court below determined that the reorganization company's act of establishing a security interest is an act of gratuitous offer under Article 78 (1) 4 of the Company Reorganization Act, since it was done without any consideration or duty, and it was done on November 28, 1997 and December 11, 1997, which was a joint and several surety of the non-party company under the bill transaction agreement of this case, and transferred 25 golf membership in its possession to the plaintiff on June 28, 1997 and 197, which was owned by the non-party company.

B. Next, the court below held that the reorganization company's joint and several surety loan obligations against the plaintiff of the non-party company under each of the bill transaction agreements of this case on April 15, 1995; ② April 19, 196; and ③ August 30, 1997; and ③ the above non-party company's loan obligations against the plaintiff of the non-party company before the bill transaction agreement was KRW 1.1 billion; and ③ the above non-party company's loan obligations against the plaintiff of the non-party company were additionally KRW 1.6 billion upon the conclusion of the above bill transaction agreement, since the bill transaction agreement of this case was additionally executed with KRW 2.7 billion in total, the court below held that the debtor's claim that the joint and several surety obligation due to the above bill transaction agreement of August 30, 1997, which was concluded on June 30, 1997, and the principal obligation due to the bill transaction agreement of this case was limited to the defendant's exercise of the right of avoidance under Article 78 (1)4.

C. On the other hand, the court below rejected the plaintiff's assertion that the liquidation company is an affiliated company of the reorganization company, and the liquidation company is the actual debtor of the bill loan of this case, and thus the liquidation company does not constitute a gratuitous act, even though the liquidation company provided joint and several surety and surety for its affiliated company, it cannot be concluded that the financial profit of the main debtor is the economic profit of the liquidation company, the liquidation company is an affiliated company, and there is no evidence to support that the liquidation company obtained a direct and realistic economic profit in return for the act of joint and several surety and surety.

D. In addition, the court below concluded that the reorganization company issued a bill at a total of eight times from December 12, 1997 to January 13, 198 with a face value of 2.7 billion won to the non-party company, and re-issued a bill at the same face value again, and the non-party company extended the due date for the payment of the existing bill to the plaintiff by endorsement and transferring it to the plaintiff. This is a new loan, which is a free act done within six months from the above default date. The court below concluded that the loan of this case was done in the form of a new loan without the actual acceptance of the bill and the bill is settled normally. The fact that the bill is made in the form of the so-called substitute exchange, which receives the bill equivalent to the bill, is nothing more than an extension of the due date for the existing debt, but it still does not constitute an extension of the existing debt, which is a joint and several surety loan of this case, and therefore, it cannot be viewed as an extension of the existing loan of the face value of this case.

E. Ultimately, the court below accepted only the portion of reorganization claim determination as to KRW 1,265,602,739, which was the sum of KRW 1.1 billion guaranteed by the reorganization company prior to six (6) months prior to the date of bankruptcy of the reorganization company, and damages for delay at the rate of KRW 165,602,739, which was the annual delay rate of 35% from July 1, 1998 sought by the plaintiff from July 4, 1998 to December 4 of the same year prior to the date of commencement of the company reorganization procedure of this case (=1.1 billion x 35% x 157/365).

3. The plaintiff's ground of appeal No. 1

The "free act" under Article 78 (1) 4 of the Company Reorganization Act refers to the act that a company reduces its positive property without receiving any consideration or increases its obligations. In light of the above facts duly established by the court below, the reorganization company's act of establishing a collective security right in the real estate in this case on January 14, 198 constitutes an act of free payment under Article 78 (1) 4 of the Company Reorganization Act. In light of the above facts duly established by the court below, it cannot be viewed that the reorganization company did not receive any monetary payment from the non-party company as a joint and several surety under the bill transaction agreement in this case and transferred 25 golf membership as of November 28, 1997 and December 11, 197, which were owned by the non-party company, and it did not constitute an act of free payment under Article 78 (1) 4 of the Company Reorganization Act. The liquidation company did not err in the misapprehension of legal principles as to the act of free payment as otherwise alleged in the ground for appeal.

4. The plaintiff's ground of appeal No. 2

Upon examining the reasoning of the judgment below in light of the records, the court below did not accept the plaintiff's assertion that the actual debtor of the bill loan obligation of this case is the reorganization company, and judged that the above act of offering collateral of the reorganization company constitutes a gratuitous act under Article 78 (1) 4 of the Company Reorganization Act, and the decision of the court below is just in holding that the act of offering joint guarantee against the bill transaction agreement of August 30, 1997 among the joint and several debt act of the reorganization company constitutes a gratuitous act under Article 78 (1) 4 of the Company Reorganization Act, and there is no violation of the duty of explanation,

5. Judgment on the Defendant’s grounds of appeal

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the reorganization company, which is a joint and several surety of the payment obligation of the bill of this case, issued the bill of this case 2.7 billion won at face value, does not constitute a gratuitous act, and there is no violation of the rules of evidence or misapprehension of the legal principle as otherwise alleged in the ground of appeal.

6. Conclusion

Therefore, all appeals by the Plaintiff and the Defendant are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)