2017Da25646 (Lawsuit by Intervention of Independent Party) Costs of goods

shares, a party to the lawsuit of the Commission, which is a party to the lawsuit of 000 trustee.

g) Multilateral sis

Law Firm Barun (LLC)

Attorney Kim Yong-pum et al.

Law Firm Democratic LLC, Counsel for defendant-appellant

Attorney Kim Jong-min et al.

2086044 (Intervention) Judgment

1. The reasoning of the lower judgment and the record reveal the following facts.

A. Conclusion of a contract for the purchase of the electric tea of this case and filing of the lawsuit of this case

1) The Seoul Special Metropolitan City shall jointly implement the extension project of the section extension project of the Incheon Metropolitan City, Seocheon-si and Seoul subway 7, and entrust the Seoul Metropolitan City Urban Railroad Corporation (hereinafter referred to as the “Urban Railroad Corporation”) with the implementation of the part in charge.

2) On June 2010, the Urban Railroad Corporation selected a companyro committee (hereinafter referred to as a "ro committee"), through bidding, etc., entered into the first electric car purchase contract with the Corporation to purchase the total amount of KRW 56 of the 51,734,227,710 from the street around June 201, and completed the payment of the goods by June 8, 201 after being supplied eight percent of the 56 electric car by February 28, 2011. The remaining purchase timing of the electric car is late due to the reasons on the joint project operator in Seoul Special Metropolitan City, and the Urban Railroad Corporation entered into a second electric car purchase contract with the Seoul Metropolitan City on December 29, 201 with the remainder of the 6 electric car purchase volume of the 6 electric car.

3) On June 11, 2012, commission filed an application for the contract amount adjustment due to price fluctuation with an urban railway corporation according to the index adjustment rate with respect to the urban railway corporation, and filed the instant lawsuit seeking payment of additional goods against the urban railway corporation that did not comply with the urban railway corporation.

B. Assignment of claims of this case

1) From February 23, 2006 to March 30, 2012, the Committee borrowed funds equivalent to 12.3 billion won from an independent party intervenor (hereinafter referred to as "participating"). On March 30, 2012, the Committee entered into a contract with an intervenor and an urban railway corporation on the assignment of the assignment of the claim for the goods under the secondary purchase contract with respect to the said corporation on March 30, 2012, prior to filing an application for the contract adjustment due to price fluctuation with respect to the urban railway corporation (hereinafter referred to as "first assignment of claim"); and the metropolitan railway corporation approved the assignment of the claim by the Committee on April 3, 2012.

2) On March 29, 2013, after filing an application for contract amount adjustment, on the part of an intervenor on March 29, 2013, the Commission transferred KRW 1 billion among the goods price claims increased following the contract amount adjustment (hereinafter “second assignment”), and notified the Urban Railroad Corporation by content-certified mail, and the above notification of transfer reached the Urban Railroad Corporation around that time. At the time of the second assignment, the Commission and the intervenor agreed that “at the time of the entry into force of the transfer, the following obligations against the Intervenor shall be discharged (or within the extent of the amount of the transferred claim)” (or the obligation shall be discharged). The commencement of rehabilitation procedures for the Street, the Intervenor’s report on rehabilitation security rights, and the Intervenor’s application for intervention in the independent party of this case, etc.

1) On May 14, 2014, during the first instance trial, rehabilitation procedures for the Commission were commenced on May 14, 2014. The Intervenor reported the total sum of the principal and interest of the loan claims (principal KRW 4,193,658,98,98 (principal KRW 3,488,650,709 among them) as rehabilitation claims within the period for reporting the obligation under the said rehabilitation procedures, and any objection thereto was not raised. The Intervenor filed a subsequent report on the rehabilitation security right by subsequent completion while having been granted the security right for the said loan claims, and at the time the Intervenor stated only the transfer security right based on the first assignment of claims as security right.

2) After the commencement of the wind rehabilitation procedure, the intervenor filed an application for intervention by the independent party to the instant case, claiming that the urban railway corporation is a mortgagee or transferee of the additional goods payment claim against the urban railway corporation, separately from the subsequent report on the completion of the rehabilitation security right.

3) Under the above rehabilitation procedure, the manager of the Commission raised an objection against the rehabilitation security right reported by the Intervenor on the grounds that the Intervenor’s claims for the same loans were reported as the rehabilitation claim, and that the instant additional goods payment claims do not fall under the objects of the first assignment of claims. The Intervenor filed a final judgment on the inspection of the rehabilitation security right against the manager of the Commission.

D. On December 16, 2014, when the first instance court was in progress, the rehabilitation court approved the rehabilitation plan for the Commission, and the rehabilitation procedure for the Commission was terminated on October 23, 2015. The main contents of the above rehabilitation plan are as follows.

1) With respect to the obligations to lend rehabilitation security rights, the full amount of the interest at issue and interest accrued prior to commencement shall be repaid in cash, 90% of which shall be repaid in 2015, and 10% shall be repaid in 2018. The interest accrued after commencement shall be repaid on the date of repayment from 2014 to 2018, applying the annual interest rate of 3%.

2) A security right of a rehabilitation secured creditor shall continue to exist according to the previous order, as a security right secured by a rehabilitation security right, the rights of which are modified according to the present rehabilitation plan. However, a security right which is not recognized as a rehabilitation security right,

3) With respect to the lending obligation of rehabilitation claims, 66% of the interest at issue and interest prior to commencement shall be converted into equity and 34% shall be repaid in cash, 15% each year from 2019 to 2023, and 25% each year from 2024 shall be repaid in installments. The interest shall be exempted in full after commencement. 4) If an undetermined claim is confirmed as a rehabilitation security right or rehabilitation claim by a final inspection judgment or final confirmation lawsuit, the repayment shall be made in accordance with the method of changing the right of the most similar rehabilitation security right or rehabilitation claim in light of the nature and content of the right. If there is a dispute over applying such change of right and repayment method, the rehabilitation court shall be decided upon the request of the administrator. E. In the process of the lower court, the rehabilitation court taken over the proceedings of the window on the ground that the Plaintiff succeeded to the rights and obligations of the Urban Railroad Corporation and the Defendant established by merger between Urban Railroad Corporation and Seoul Urban Railroad Corporation and taken over the proceedings of the Urban Railroad Corporation.

2. Determination on the grounds of appeal Nos. 1 and 3

The lower court, on the grounds indicated in its reasoning, determined that the first assignment of claims was included in the subject-matter of the right to collateral transfer based on the first assignment of claims based on an intervenor’s loan claim as the secured claim. Moreover, the lower court determined that the second assignment of claims is not the purpose of collateral but the second assignment of claims based on the additional amount of KRW 1 billion in lieu of the repayment of claims.

In light of the relevant legal principles and records, the court below did not err by misapprehending the legal principles as to the interpretation of the object of the security of the first assignment of claims and the legal nature of the second assignment of claims, due to violation of the rules of evidence, and the transfer

3. Judgment on the second ground for appeal

A. According to Article 58(1)2 of the Debtor Rehabilitation and Bankruptcy Act, when a decision is rendered to commence rehabilitation procedures, compulsory execution, etc. based on rehabilitation claims or rehabilitation security rights shall not be performed. Article 141(1) of the Debtor Rehabilitation Act also provides that transfer security rights shall be included in rehabilitation security rights. Therefore, the compulsory execution, etc. based on rehabilitation security rights under Article 58(2)2 of the Debtor Rehabilitation Act, which is prohibited at the time the decision to commence rehabilitation procedures is rendered, includes the act of exercising the right to transfer security rights (see Supreme Court Decision 2009Da90146, May 26, 201).

An act of exercising the right to collateral security means that an obligee is ultimately entitled to receive reimbursement by exercising the right to collect against a third party obligor. In particular, if the subject matter of the right to collateral security is a monetary claim, there is no need for separate procedures, such as realizing monetary claims to obtain satisfaction of the secured claim. If a mortgagee files a lawsuit against a third party obligor seeking performance of an obligation and a judgment is rendered in favor of the third party, there is no way to prevent the third party obligor from performing the obligation at will to the mortgagee. Therefore, where rehabilitation procedures commence for the debtor who is the transferor of the claim after the transfer of the claim for collateral security, the act of filing a lawsuit seeking payment of the claim against the third party obligor constitutes an act of executing the right to collateral security prohibited by the decision on commencement of rehabilitation procedures. Such interpretation accords with the contents of the Debtor Rehabilitation Act, which provides that the right to collateral security is included in the rehabilitation security right after the commencement of rehabilitation procedures for efficient rehabilitation of the debtor.

B. On the grounds stated in its reasoning, the lower court determined that, in the event rehabilitation procedures commence against a debtor, who is a mortgagee of security interest, the mortgagee’s right to claim performance against a third debtor cannot be readily concluded as an act of exercising a security right prohibited by the commencement of rehabilitation procedures, and barring any special circumstance, barring any special circumstance, the third debtor’s right to claim performance is against a mortgagee, who is a rehabilitation secured creditor, rather than a debtor’s custodian, and accordingly, the claimant for

C. However, in light of the aforementioned legal principles and records, it is difficult to accept such judgment of the court below for the following reasons.

An intervenor filed a rehabilitation security right in the rehabilitation procedure of the Commission by asserting that a right to collateral security was granted for the instant additional goods payment claim as a creditor of loan by the Commission, and filed an application for intervention by the independent party in the instant case seeking payment of the additional goods payment claim against the Defendant, the garnishee, based on the transfer security right. However, the Intervenor’s above application was filed after the commencement of the rehabilitation procedure of the Commission. Thus, even if the Intervenor is a rehabilitation secured creditor of the Commission, the Intervenor’s application for intervention by the independent party was made after the commencement of the rehabilitation procedure of the Commission. Thus, the Intervenor’s application for intervention by the independent party was prohibited by the commencement of the rehabilitation procedure of the Commission as an execution of the right to collateral security included in “a compulsory execution, etc. based on the rehabilitation security right” under Article 58(1)2 of the Debtor Rehabilitation Act, which is included in “a compulsory execution, etc. based on the rehabilitation security right as provided for in Article 58(1)2

D. Nevertheless, the lower court accepted the Intervenor’s claim by deeming that the Intervenor’s application for participation in the instant independent party seeking payment of additional goods based on the transfer security right against the Defendant does not constitute an enforcement of the transfer security right prohibited by the decision on commencing rehabilitation procedures. In so determining, the lower court erred by misapprehending the legal doctrine as to the scope of enforcement of the transfer security right prohibited by the decision on commencing rehabilitation procedures under the Debtor Rehabilitation Act. The allegation contained in

However, inasmuch as there is an objection by a custodian, etc. against a rehabilitation security right reported in the rehabilitation procedure, the existence and content of the rehabilitation security right is determined in the claim inspection procedure, so that whether the intervenor is a rehabilitation secured creditor of the Commission or not is a rehabilitation secured creditor of the intervenor is determined in the claim confirmation procedure under progress between the intervenor and the plaintiff who succeeded to the Commission, and as a result, whether the intervenor’s security right is extinguished or still exists under Article 251 of the Debtor Rehabilitation Act according to the rehabilitation plan of the Commission. As long as the rehabilitation plan of the Commission has already been authorized and the rehabilitation procedure has been terminated, the court below should also examine these issues.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo