[2] The meaning of "bilateral contract" under Article 103 (1) of the former Company Reorganization Act

[3] Whether the legal principles under Articles 103 and 104 of the former Company Reorganization Act may apply mutatis mutandis to a case where a sales contract has the right to enter into at the time of commencement of reorganization proceedings, and thereafter a sales contract is established or may be established by the exercise of the other party's right, and both obligations have not yet been fulfilled (affirmative)

[2] In the case of bilateral contract not performed by both parties, the "Bilateral contract" under Article 103 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) which grants the administrator the right to choose to perform or cancel the contract is a contract under which both parties are liable for an equal consideration relationship between each other. Thus, it refers to a contract under which both parties are liable for an obligation in the same consideration relationship, and ultimately, it functions as a security for each other when both parties are legally and economically related to the establishment, performance, existence, and existence of a bilateral obligation. Thus, to apply the above provision, the whole or part of the contractual obligation under

[3] Reorganization claim under Article 102 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) refers to a claim on property arising from a cause of an occurrence of a claim, such as expression of intent, etc. prior to the commencement of reorganization proceedings. Thus, even if the cause of an original claim is based on the cause prior to the commencement of reorganization proceedings, or the cause of a claim arrives after the commencement of reorganization proceedings, it may be a reorganization claim. However, if the cause of a claim falls under a bilateral contract not performed by both parties, it may not be claimed to the administrator before the custodian selects the performance or cancellation. Furthermore, if the custodian selects the performance, it shall not be treated as a public-interest claim, and if the custodian selects the performance, the claim itself becomes extinct and only becomes entitled to claim for damages arising from the exercise of the right, and thus, it may not be concluded in any case or by applying the above legal principles to both parties after the commencement of reorganization proceedings.

1. In preparation for the aggravation of the financial status of a company between the parties to a contract, there are cases where certain facts arising from the process leading to bankruptcy, such as the suspension of payment, the application for commencement of company reorganization procedures, and the commencement of company reorganization procedures, are determined as the cause of termination of the contract concerned, or where a special contract stipulated as the cause of termination of the contract is established as the only cause for the termination of the contract concerned. The Civil Act merely provides for the effect of bankruptcy declared by one party on the contract regarding several types of contracts (see Articles 599, 614, 637, 663, 674, 690, and 717 of the Civil Act), and there is no particular provision regarding the effect of the provisions on the commencement of company reorganization procedures on the grounds that the former Company's right to rescission of the company becomes null and void on the grounds that it is not contrary to the purpose of the Act on the Reorganization of Debtor and Bankruptcy and the Act on the Establishment of Bankruptcy and the Act on March 31, 2005.

In addition, in cases of bilateral contracts not performed by both parties, in light of the purport of Article 103 of the Company Reorganization Act, the effect of the insolvency termination clause should be deemed null and void, or at least until the expiration of the period after the commencement of reorganization proceedings, there is no room to interpret that the application of the bankruptcy termination clause or the exercise of the termination right shall be restricted. However, the Bilateral contract under Article 103 of the Company Reorganization Act is a contract under which both parties are liable for an equal contractual relationship. It refers to a contract under which both parties have an equal contractual relationship and functions as a security in terms of its formation, performance, existence, and economic relationship between the two parties. Thus, it is difficult to readily conclude that the Bilateral contract has a high level of economic relationship between the parties to the contract and the other party to whom the obligation is established and thus, it is difficult to say that the Bilateral contract has a high level of economic relationship between the parties to the contract and the other party to whom the obligation is established and thus, it constitutes a joint venture for the purpose of establishing and operating the company.

Nevertheless, in light of various circumstances, such as the nature, content and degree of implementation of the joint venture agreement in this case, and the contents of the case setting forth the grounds for termination, the court below held that the bankruptcy termination clause in this case, which set forth the grounds for the right to terminate the company reorganization procedure for the career of one party to the joint venture agreement, is null and void on the ground that it violates the purpose and purport of the company reorganization procedure and infringes on the administrator's right to manage and dispose of company property under the Company Reorganization Act, without thoroughly examining how the result of the application of the bankruptcy termination clause has a substantial effect on the reorganization company after the commencement of reorganization procedure.

2. However, the reorganization claim under Article 102 of the Company Reorganization Act refers to a claim for property arising from a cause arising prior to the commencement of reorganization proceedings, such as expression of intent, etc., which means a claim for property arising from a cause arising from a cause arising from a claim prior to the commencement of reorganization proceedings. Thus, as long as the cause arising from a cause arising from the cause prior to the commencement of reorganization proceedings has not been specifically determined or the maturity date arrives after the commencement of reorganization proceedings, it may be a reorganization claim even if the cause of a claim falls under a bilateral contract which is not performed by both parties. However, in cases where the cause of a claim falls under a bilateral contract which is not performed by both parties after the commencement of reorganization proceedings, it is not possible to claim the performance to the administrator before the custodian implements or withdraws the contract, and if the custodian selects the performance as a priority claim, the claim itself is not treated as a claim for damages arising from the exercise of the right to cancel, and in any case, the above claim cannot be a reorganization claim. This legal principle also apply to cases where a sales contract is concluded by the other party's exercise rights or obligations are not fulfilled.

In this case, the Plaintiff reported that the reorganization court has a reorganization claim claiming the delivery of the instant shares under the condition of suspension without exercising the right to terminate the contract and the right to claim the transfer of the instant shares, without exercising the right to terminate the contract under the bankruptcy termination clause under the joint venture agreement of this case. Since the right to claim the delivery of shares under the condition of suspension is a right regarding the future sales contract established when the Plaintiff exercises the right to terminate the contract under the bankruptcy termination clause of this case after the commencement of reorganization proceedings and then exercises the right to claim the appraisal right under the instant joint venture agreement, the right to claim the delivery of shares under the condition of suspension is a right regarding the future sales contract which is established when the Plaintiff exercises the right to claim the appraisal right under

3. As seen earlier, even though the judgment of the court below erred by misapprehending the legal principles on the validity of the insolvency termination clause, the court below’s determination that the right to request the issuance of shares cannot be a reorganization claim, which is a condition precedent for termination of a contract and the occurrence of appraisal rights under the bankruptcy termination clause under the joint venture agreement of this case, is justified. Accordingly, all of the arguments in the grounds of appeal

4. 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 on the bench.

Justices Shin Hyun-chul (Presiding Justice)