[1] The method to determine the validity of a juristic act in violation of a prohibition provision in a case where a certain obligation is imposed on the parties to a juristic act, such as a contract, or where a statute prohibiting a certain act does not clearly stipulate the validity

[2] Whether a debt guarantee or an evasion of law in violation of Articles 10-2(1) and 15 of the former Monopoly Regulation and Fair Trade Act is null and void under private law (negative)

[3] The meaning of "where the other party has a special relationship" under Article 101 (3) of the Debtor Rehabilitation and Bankruptcy Act that expands the period of the act subject to denial in the case of joint and several liability under Article 100 (1) 4 of the same Act, and in the case where the principal debtor has a special relationship with the joint and several liability debtor, but the creditor who is the other party to the joint and several liability debtor is not a specially related person of the joint

[1] Article 105 of the Civil Act / [2] Articles 10-2 (1) (see current Article 10-2), 15, 16 (1) and (2), 17 (2), 19 (4), and 66 (1) 6 and 8 of the former Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 28197, Jul. 17, 2017); Article 21-4 (1) 2 (see current Article 21-4 (1) 2-2), Article 103 of the Civil Act / [3] Article 10 (1) 4, and 101 (3) 4, and 103 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 2008Da75119 Decided December 23, 2010 (Gong2011Sang, 207) Supreme Court Decision 2015Da256794 Decided October 12, 2018 (Gong2018Ha, 2078) / [3] Supreme Court Decision 2008Da48117 Decided February 12, 2009 (Gong2009Sang, 318)

[Defendant-Appellant] Plaintiff (Bae, Kim & Lee LLC, Attorneys Hong-chul et al., Counsel for defendant-appellant)

Han Bank Co., Ltd., Ltd. and four others (Law Firm Democratic, Attorneys Kim Ho-kak et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2044992 decided June 19, 2015

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judicial effect of the instant monetary supplement agreement (Ground of appeal No. 1)

A. We examine the summary and issues of the case.

(1) According to the reasoning of the lower judgment and the record, the following facts are revealed.

(A) The erooping city Co., Ltd. (hereinafter “erooping city”) as an affiliated company of the erooping Holdings Co., Ltd. (hereinafter “SPD”) established a more BPD company (hereinafter “WPD”), which is a special purpose corporation, in raising the complex leisure the construction fund.

(B) On January 26, 2012, WTPP concluded the first loan agreement on the loan of KRW 80 billion in total from Defendant Han Bank Co., Ltd. (hereinafter “WPD”) and Qion Capital Co., Ltd. (hereinafter “WPD”). According to this, the loan should be used for the loan purpose of the borrower (e.g., e., e., a loan of KRW 80 billion in WPD to e.g., a e., a loan of KRW 80 billion in e.g., a e., a loan of KRW 80 billion in e.g., the e., a loan of KRW 80 billion in e.g., a loan., and WPD should (e., a e.g., a e., a e., a loan of the first loan agreement. WPD concluded a loan of the first loan agreement on the same day.

(C) On January 26, 2012, 2012, he/she entered into a funding arrangement with the Defendants, WPD, and the first loan agreement (hereinafter “instant funding arrangement”). The instant funding arrangement stipulates that ① where WPD fails to repay the principal and interest of loans, he/she shall lend the instant funds to WPD in a subordinate loan method; ② where WPD is unable to perform its obligation to compensate for damages, such as the principal and interest of loans, fees, expenses, etc., to the creditors of the first loan agreement.

(D) Defendant Military Mutual Aid Association, filial Capital Co., Ltd., and Han Savings Bank, Inc., took over part of the above loans from Defendant Chion Capital Co., Ltd., and was transferred the rights and obligations under the Financial Supplementary Agreement.

(E) After the occurrence of the grounds for supplementing funds, such as the failure of the TPP to repay the above loans, etc., however, he did not perform the obligation to supplement funds under the instant funding arrangement.

(F) On October 11, 2012, the Seoul Central District Court rendered a decision to commence rehabilitation proceedings for the eroding Holdings. The Defendants reported the damage claim pursuant to the instant funding supplement agreement as rehabilitation claims in the rehabilitation proceedings, and the administrator of eroding Holdings raised an objection thereto.

(G) Subsequent to the foregoing rehabilitation procedure, the erodora trading was divided, thereby resulting in the establishment of Taekel Pream Co., Ltd. (hereinafter “ Taekel Pream”). The rights and obligations related to the avoidance power lawsuit, including the rights and obligations under the instant funding arrangement, carried out at the time, were succeeded to Taekel Pream, and the Plaintiff was appointed as the manager of Taekel Pream.

(2) The Plaintiff asserted that the instant funding supplement agreement constitutes an evasion of the law of debt guarantee prohibited under Articles 15 and 10-2(1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 14813, Apr. 18, 2017; hereinafter “Fair Trade Act”), and Article 21-4(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 28197, Jul. 17, 2017; hereinafter “Enforcement Decree of the Fair Trade Act”). However, the lower court determined that the instant funding supplement agreement was valid only in violation of Article 15 of the Fair Trade Act only.

(3) The main issue of this part is whether the instant monetary supplement agreement constitutes an evasion of the law of debt guarantee prohibited under Articles 15 and 10-2(1) of the Fair Trade Act, and Article 21-4(1) of the Enforcement Decree of the Fair Trade Act, and is thus null and void under the private law.

B. (1) The main sentence of Article 10-2(1) of the Fair Trade Act provides that “any company belonging to an enterprise group subject to the limitations on debt guarantee shall not provide any debt guarantee to any domestic affiliate company,” and Article 15(1) provides that “any person shall not perform any act of evading the application of the provisions of Article 10-2(1)” and Article 15(2) provides that “any person shall not perform any act of evading the application of the provisions of Article 10-2(1).” Article 21-4(1)2 of the Enforcement Decree of the Fair Trade Act delegates to the Presidential Decree the type of and standards for the evasion of the law.” Article 21-4(1)2 of the Enforcement Decree of the Fair Trade Act provides that any company belonging to an enterprise group subject to the limitations on debt guarantee under Article 10-2(1) of the Fair Trade Act refers to an evasion of the law prohibited under Article 15(1) of the Fair Trade Act, and that any other company bears the same obligation without releasing its existing debt guarantee to the affiliate company [(a]

(2) Even if the instant monetary supplement agreement constitutes an evasion of the law against Article 10-2(1) prohibited under Article 15 of the Fair Trade Act, and constitutes an act prohibited under Article 21-4(1)2(a) of the Enforcement Decree of the Fair Trade Act, the act of violating Articles 10-2(1) and 15 of the Fair Trade Act cannot be deemed as null and void under the private law. The reasons are as follows.

In cases where an Act explicitly provides for the validity of a juristic act in violation of a certain obligation to a party to a juristic act, such as a contract, or an Act prohibiting a certain act, the existence or invalidity of the juristic act ought to be determined pursuant to the relevant provision. If an Act provides that a juristic act in violation of the relevant provision is null and void or the relevant provision provides that a juristic act in violation of the relevant provision is null and void, the juristic act in violation of the relevant provision shall be deemed null and void. On the other hand, in cases where the validity of a juristic act in violation of the prohibition provision is not clearly determined, the legislative background and purport of the provision, the legal interest and protection of the relevant provision, the seriousness of the violation, whether the relevant party intended to violate the legal provision, the impact of the violation on the party to the juristic act or a third party, the social, economic, ethical assessment of the violation, and the attitude of the law on any act similar or closely related thereto, such determination shall be made by comprehensively taking into account various circumstances (see Supreme Court Decisions 2008Da7519, Dec. 23, 2010>

Although the Fair Trade Act stipulates that if Article 10-2(1) and Article 15 are violated, corrective measures may be ordered, penalty surcharges (Article 17(2)), or punishment (Article 66(1)6 and 8) may be imposed, the Fair Trade Act does not directly state the judicial effect of the violation of Articles 10-2(1) and 15.

However, according to the language and text of the Fair Trade Act, the act of violating Article 10-2(1) of the Fair Trade Act has a relatively clear provision on the premise that the act of violating Article 10-2(1) has a judicial effect. In other words, the Fair Trade Act stipulates that when there exists an act of violating Article 10-2(1) of the Fair Trade Act, the Fair Trade Commission may order the cancellation of the debt guarantee as a corrective measure (Article 16(1)5). This is based on the premise that the debt guarantee in violation of Article 10-2(1) of the Fair Trade Act is legally effective, and that the said debt guarantee may be cancelled at the discretion of the Fair Trade Commission. If the Fair Trade Act considers the above debt guarantee as null and void under the private law, there is no reason to establish a provision that the cancellation may be ordered as a corrective measure. Therefore, the debt guarantee in violation of Article 10-2(1) of the Fair Trade Act should be considered as effective under the private law. Likewise, it can be deemed that the evasion of the law is also effective.

This conclusion is also supported by the fact that the Fair Trade Act explicitly provides that an act prohibited by the Fair Trade Act may be invalidated under the private law or may file a lawsuit seeking nullification thereof. Article 19(4) of the Fair Trade Act provides that “any contract, etc. that agrees to engage in an unfair collaborative act shall be null and void among business operators,” and Article 16(2) provides that “if a company is merged or established in violation of the restriction on the combination of enterprises and the restriction on the establishment of holding companies by an enterprise group subject to limitations on debt guarantee, the Fair Trade Commission may file a lawsuit seeking nullification of the merger or establishment

The legislative purpose of Articles 10-2(1) and 15 of the Fair Trade Act is to prevent excessive concentration of economic power, promote fair and free competition, and promote the balanced development of the national economy by preventing any debt guarantee for domestic affiliated companies of a company belonging to a business group larger than a certain size, or from evading such debt guarantee. In order to achieve this, the validity of the said debt guarantee or evasion of the law is not necessarily to be denied.

If a debt guarantee in violation of Article 10-2(1) and Article 15 of the Fair Trade Act or the judicial effect of an evasion of the law is deemed null and void, a company that committed such an act against a domestic affiliate company is exempted from its obligation, such as a surety obligation, without any consideration, even if it gains profit therefrom. On the other hand, a financial institution that is the counterparty to the transaction is deprived of its personal security and is likely to increase the risk of unpaid claims. Furthermore, a financial institution is at risk of not accepting a debt guarantee even in cases where a debt guarantee is granted pursuant

The proviso of Article 10-2(1) of the Fair Trade Act and Article 17-5 of the Enforcement Decree of the Fair Trade Act provide a relatively broad ground for exception in which debt guarantee for affiliate companies is allowed. As such, if the Fair Trade Act prohibits debt guarantee for affiliate companies in principle, but provides wide exceptions, it cannot be deemed that a debt guarantee or an evasion of the law, which violates Articles 10-2(1) and 15 of the Fair Trade Act, has a very anti-social or anti-competence as long as it should be denied its judicial effect.

C. Aside from whether the instant funding supplement agreement constitutes an evasion of the law under the Fair Trade Act, the lower court’s determination that the instant funding supplement agreement is valid under the private law is justifiable in light of the foregoing legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on the validity provision, contrary to what is alleged in

D. In addition, in light of the relevant legal principles and records, no circumstance exists to deem the instant monetary supplement agreement to be null and void as contrary to the principle of good faith or as an anti-social legal act. Therefore, the lower court did not err in its judgment by misapprehending the legal principles on justice and equity, the principle of good faith, and the validity of anti-social legal act, contrary to what is alleged in the grounds of appeal.

2. Whether the case constitutes a free panel (ground of appeal No. 2)

A. Article 100(1)4 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that a debtor’s custodian may deny “a gratuitous act performed by the debtor after payment is suspended, or within six months prior thereto, and any other act for value equivalent thereto.” Article 101(3) of the Debtor Rehabilitation Act provides that “When applying Article 100(1)4, when a person with a special relationship is the other party, the “six months” stipulated under the same subparagraph shall be deemed “one year”. In a case where a joint and several surety is an act subject to denial under Article 100(1)4 of the Debtor Rehabilitation and Bankruptcy Act, the period of denial is extended. In a case where the other party to the said act is a joint and several surety, the obligee who acquired the right to guarantee as the other party to such joint and several surety and exercises the right to guarantee is a specially related party of the debtor. However, even if the principal debtor is a joint and several surety with the debtor, if the obligee is not a specially related party of the debtor, the obligee cannot be applied.

B. The lower court determined that the parties to the duty to supplement funds and the duty to compensate for damages arising from the violation of the duty to compensate for damages under the instant monetary supplement agreement cannot be deemed to fall under the specially related persons of the eroding and the Defendants, and thus, the period of the act subject to denial is not extended.

C. Examining the foregoing legal doctrine in light of the foregoing, the lower court did not err in its judgment by misapprehending the legal doctrine on gratuitous denial, as otherwise alleged in the grounds of appeal.

3. Calculation, etc. of damages (Ground of appeal No. 3)

A. The lower court, based on the following circumstances, determined that the circumstance that the security related to the first loan contract was secured at the time the rehabilitation procedure commenced does not affect the confirmation of the amount of the instant rehabilitation claim.

(1) Even though the e-mail has a duty to supplement the funds pursuant to the instant funding arrangement, the Defendants were not obliged to pay the remaining principal and interest due to the damages incurred by the Defendants, thereby bearing the obligation to pay the Defendants the remaining principal and interest due to the first loan agreement.

(2) Article 126(1) and (2) of the Debtor Rehabilitation Act provides that “When multiple persons are liable to perform all or part of the claims, when rehabilitation procedures commence, the creditors may exercise their rights on the total amount of the claims they hold at the time that the rehabilitation procedures commence, and even when a person liable to perform the whole or part of the claims has extinguished his/her obligations to the creditors after the rehabilitation procedures commence, the creditors may exercise their rights on the total amount of the claims they hold at the time that the rehabilitation procedures commence, except in cases where the total amount of the claims are extinguished, even when the person liable to perform all of

(3) In addition to the instant pledge that was reported by the Defendants as a rehabilitation security right under the instant rehabilitation procedure, there is no evidence to acknowledge that the Defendants either partly repaid the amount of damages arising from the exercise of the remaining security right before the commencement date of the rehabilitation procedure, or that the full amount of damages claim was repaid after the commencement

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the method of calculating the amount of damages and burden of proof, as otherwise alleged in the grounds of appeal.

4. Negligence set-off or limitation of liability for damages (ground of appeal No. 4)

The fact-finding or the ratio of comparative negligence or limitation of liability in damage compensation cases due to nonperformance belongs to the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2014Da201650, May 16, 2014).

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s fact-finding or determination on the grounds for comparative negligence or limitation of liability cannot be considerably unreasonable in light of the principle of equity. In so determining, the lower court did not err by misapprehending the legal doctrine on comparative negligence or limitation of liability

5. Conclusion

The Plaintiff’s appeal is dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)