[파산채권확정][미간행]
Whether the waiver of extinctive prescription interest on part of the subordinate bankruptcy claims of the bankruptcy creditors in the bankruptcy proceedings is permitted by the court (negative)
Article 187 subparag. 12 (see current Article 492 subparag. 12 of the Debtor Rehabilitation and Bankruptcy Act) and Article 188(1) (see current Article 492 subparag. 12 of the Debtor Rehabilitation and Bankruptcy Act) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005)
Supreme Court Decision 2012Da44785 Decided January 23, 2014 (Gong2014Sang, 468)
NongHyup Bank Co., Ltd., a divided National Agricultural Cooperative Federation's lawsuit taking over the lawsuit (Attorney Kim Jong-han
Defendant in bankruptcy trustee of the bankrupt Dong Dong-ho P Pool Securities Corporation
Seoul High Court Decision 2012Na28709 decided September 28, 2012
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. As to the ground of appeal on implied agreement
The lower court determined that on November 25, 1997, the Plaintiff agreed to convert 20 billion won at the rate of 16.7% per annum to the National Agricultural Cooperative Federation (hereinafter “Agricultural Cooperative Federation”)’s short-term loans worth KRW 20 billion at the rate of 16.7% per annum; on December 8, 1997, the Plaintiff agreed to convert the said 20 billion interest rate into the deposit interest rate of KRW 5 billion from December 8, 1997 to February 10, 2009; on the sole basis of the fact that the NACF’s agreement was reached between the Plaintiff and the NAF’s NAF’s 17% annual interest rate of 200 billion and the NAF’s annual interest rate of 200 billion from February 8, 2007 to February 10, 2009, the Plaintiff reported to the NAF’s bankruptcy claim and the NAF’s interest rate of 200 billion to 200 billion interest rate per annum.
In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to implied agreement.
2. As to the ground of appeal on the waiver of extinctive prescription benefit
The lower court determined that the Defendant waived the benefits of prescription even with knowledge of the completion of the statute of limitations on certain subordinate bankruptcy claims, since the Defendant informed bankruptcy creditors of reporting interest claims as subordinate bankruptcy claims, and did not raise any objection as to the completion of the statute of limitations even in investigating claims.
In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and further, the waiver of extinctive prescription benefits against part of the plaintiff's subordinate bankruptcy claims in the bankruptcy procedure by the defendant does not constitute "a waiver of right" under Article 187 subparagraph 12 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act (Act No. 7428 of March 31, 2005) and it cannot be deemed as a court's permission. Thus, the court below did not err in the misapprehension of legal principles as to the waiver of extinctive prescription benefits, contrary to
3. Conclusion
Therefore, the appeal is dismissed, 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 Park Poe-dae (Presiding Justice)