[2] Where a share sales contract becomes invalidated by exercising the right of rescission under Article 103 (1) of the Company Reorganization Act, the liability of joint and several sureties of the reorganization company

[2] Where a share sales contract becomes invalidated by the exercise of the right to cancel under Article 103(1) of the Company Reorganization Act, the exercise of the right to cancel shall be deemed to be due to impossibility of performance due to the reason attributable to the company's liability, and the scope of compensation for damages arising therefrom shall be deemed to include not only trust interest but also damages arising from loss of performance interest. Even if joint and several surety is not the meaning of performance guarantee for the contract, if the contract becomes effective due to the reason attributable to the buyer and the buyer is liable for damages to the seller, it shall be deemed that the joint and several surety is also jointly and severally

2. All of the plaintiffs' primary claims are dismissed.

3.On the basis of the preliminary claim added at the trial, the defendant will pay to the plaintiff Song Hun-Hun an amount equivalent to 1,242, 56,00 won, 9,271,454,000 won, 764,656,000 won to the plaintiff Song Sung-sung, and 764,656,000 won to the plaintiff Song-sung, and 5% per annum from February 26, 200 to February 6, 201, and 25% per annum from the next day to the date of full payment.

4. Each of the plaintiffs' remaining conjunctive claims is dismissed.

5. 3/10 of the total litigation costs is assessed against the plaintiffs, and the remainder is assessed against the defendants.

6. Paragraph 3 can be provisionally executed.

(a)The primary purport of the claim is that the defendant shall pay to the plaintiff Song-man's 12,690,000,000 won, 12,610,000,000 won to the plaintiff Song-sung, 12,040,000 won to the plaintiff Song-sung and 1,040,000 won per annum from May 1, 1998 to the delivery date of the copy of the complaint of this case, 18 percent per annum from the next day to the full payment date, and 25 percent per annum per annum.

(b) Preliminary claims: the Defendant shall pay to the Plaintiff Song-do-ro, the amount of KRW 12,492,704,410, the amount of KRW 12,492,410, the amount of KRW 1,030,326,137, and the amount of KRW 25 percent per annum from February 26, 2000 to the full payment date (the Plaintiff added the preliminary claims at the trial).

2. Purport of appeal

The judgment of the court below is revoked and the plaintiffs' claims are dismissed.

The following facts are either disputed between the parties, or there is no conflict between Gap evidence 1-1-6-2, Gap evidence 18-1, 2-2, Eul evidence 2-2, Eul evidence 37-1, and Eul evidence 37-2, each of the following facts can be acknowledged in full view of the whole purport of the pleadings as a result of the examination of the recording tape by the court below, and there is no counter-proof.

A. On March 8, 1995, the plaintiffs, Kim Jong-young, and Yoon-ju entered into a contract with the non-party ASEAN Construction Co., Ltd. (hereinafter referred to as the "ASEAN Construction") to sell the full amount of the registered general shares of the non-party 240,000 shares (the non-party 26,00 shares, the non-party 186,00 shares, the non-party 16,00 shares, the non-party 16,00 shares, the non-party 16,00 shares, the non-party 16,00 shares, the non-party 16,00 shares, the non-party 16,00 shares, the non-party 17,730 shares, the non-party 3,270 shares, the non-party 1,50,000 shares, the non-party ASEAN Construction Co., Ltd. (hereinafter referred to as the "the non-party ASEAN Construction Co., Ltd.").

B.After September 6, 1995, the plaintiffs, the Kim Jong-Un, and ASEAN Construction revised the above sales contract to sell the above 122,00 shares of 12,00 shares with the above 140,000 shares of 50.8% of 12,00 shares of the registered ordinary shares (the plaintiff 13,00 shares of 13,000 shares of the plaintiff, the plaintiff Songsung 89,000 shares of the plaintiff Kim Jong-Un, the non-party Kim Jong-Un, the 8,730 shares of 8,730 shares of the plaintiff Kim Jong-Un, and the non-party 3,270 shares of 19,192,186,00 shares of the above 19,192,186,000 shares to ASEAN. Accordingly, the ASEAN Construction acquired the management rights of 122,180 shares of the above 12,00 shares.

C.On the other hand, the plaintiffs and ASEAN Construction agreed to sell and purchase the remaining shares 118,000 shares (only 13,00 shares for the plaintiff, Song-do, 97,000 shares for the plaintiff, Songsung, 8,000 shares for the plaintiff, and hereinafter referred to as "the shares of this case") in addition to the above revised sales contract on September 6, 1995, under mutual assistance of KRW 130,000 per share during April 198 (hereinafter referred to as "the agreement of this case"), and the defendant company provided joint and several sureties's obligation to pay the purchase price of ASEAN.

(d)As the plaintiffs urged ASEAN to implement the present arrangement from April 1998, it was due to the end of April 1998, around June 5 of the same year, around the end of the same year, around the end of November of the same year, and the end of November of the same year.

2. Determination as to the plaintiffs' claims

A. Judgment on the main claim

According to the above facts, it is reasonable to view the instant agreement between the plaintiffs and ASEAN Construction as a term sales contract, and since April 1998, which was the due date, has already arrived, the defendant company, a joint guarantor of ASEAN Construction, has the obligation to pay the purchase price of the shares to the plaintiffs, unless there are special circumstances.

The Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) asserted that, on April 23, 1999, Anam Construction was ordered to commence a company reorganization procedure by the Seoul District Court and the Intervenor was appointed as the administrator, and all of the instant agreements were not completed, the Intervenor’s Intervenor’s rescission of the instant agreement under Article 103(1) of the Company Reorganization Act.

According to the fact-finding inquiry by the Seoul District Court on January 10, 200, the above evidence and evidence No. 40, Eul evidence No. 41-1 through 3, and the fact-finding inquiry by the Seoul District Court on January 10, 200. The supplementary intervenor was appointed as the administrator of the reorganization company upon the decision of the Seoul District Court on April 23, 199 as the supplementary intervenor's commencement of corporate reorganization procedure from Seoul District Court on April 23, 199. The facts that the supplementary intervenor was appointed as the administrator of the reorganization company at the time of the above commencement of corporate reorganization procedure for ASEAN and the plaintiffs did not complete the implementation of the agreement of this case, both of which are bilateral contract. The Seoul District Court decided that the administrator should obtain the permission of the Seoul District Court on February 21, 2000, the intervenor's declaration of intention to cancel the contract under Article 103 of the Company Reorganization Act between the plaintiffs and the above 201.

After the defendant and the intervenor promised to perform the share purchase and sale agreement of this case over several occasions, claiming that the above agreement itself is not permissible because the exercise of the right to cancel was in violation of the principle of trust and good faith or because it constitutes abuse of the right. Thus, it is for the reorganization company to grant the right to cancel and terminate the bilateral contract whose performance has not been completed at the time of commencement of reorganization proceedings to the administrator of the reorganization company under Article 103 (1) of the Company Reorganization Act to facilitate the reorganization of the reorganization company's business and restructuring (see Supreme Court Decision 98Da3603, Jun. 26, 1998). Thus, even if there were such reasons as alleged by the plaintiffs in domestic affairs, the exercise of the right to cancel does not constitute a violation of the principle of trust and good faith or an abuse of the right. Thus, the above plaintiffs' assertion is without merit.

B. Determination on the conjunctive claim

The plaintiffs asserted that the plaintiff should compensate the plaintiffs for the damages suffered by the plaintiff, even if the above intervenor's cancellation of the share sales contract of this case was lawful, since it was due to the plaintiff's impossibility of performance due to the reasons attributable to the plaintiff, who is the buyer.

First, the defendant and the intervenor alleged that it is difficult to allow the plaintiff's above assertion because it is the actual attack method of time. However, in light of the above litigation process of this case, the plaintiff's assertion of cancellation of the share sales contract of this case was accepted by the court of reorganization and it seems that the alteration of the claim between the parties was somewhat delayed in the process of mediation and attempt between the parties, etc., the plaintiff's assertion of the above conjunctive claim of this case cannot be seen as the actual attack method (see Supreme Court Decision 91Da490 delivered on February 25, 1992). In this case, the above argument of the plaintiffs cannot be seen as delaying the conclusion of litigation because it is a case where the continuation of the date is required and the deliberation of the method of attack and defense is completed within the scope of the continuation date, or its contents is included within the scope of the litigation materials which have already been examined (see Supreme Court Decision 9Da53742 delivered on April 7, 200).

Then, we examine the above argument by the plaintiffs, as seen above, the facts that the above contract was invalidated due to the plaintiff's exercise of the right to rescission under the Company Reorganization Act regarding the contract for the purchase of shares of this case, and the exercise of the right to rescission should be deemed to be due to the impossibility of performance due to the reasons attributable to the reorganization company's liability, and the scope of compensation for damages arising from the loss of the execution profit as well as the trust profit (Seoul High Court Decision 90Na980 delivered on July 18, 1990). Further, even though the meaning of the performance guarantee for the contract for the purchase of shares of this case is not the meaning of the performance guarantee for the contract for the purchase of shares, the above agreement is invalidated due to the reasons attributable to the buyer, and if the purchaser is liable for damages to the plaintiffs who are the seller, it shall be deemed that the defendant has the obligation to compensate the plaintiffs for damages arising from the cancellation of the contract for the shares of this case.

On the other hand, the defendant asserts that the exercise of the right of rescission under Article 103 (1) of the Company Reorganization Act differs from the cancellation of the contract due to the non-performance of obligation under the Civil Act, and the other party at the time of exercising the right of rescission under Article 104 (1) of the Company Reorganization Act, the claim for damages shall be acquired pursuant to Article 104 (1) of the same Act, and the claim shall be exercised by the reorganization creditor in reorganization proceedings. Therefore, the cancellation of the contract due to the exercise of the right of rescission cannot be caused by the impossibility of performance by the reorganization company. Therefore, the joint guarantor of the reorganization company shall not be held liable for guarantee. Thus, it is pointed out above that the exercise of the right of rescission under Article 103 (1) of the Company Reorganization Act shall be caused by the impossibility of performance due to the reason that actually belongs to the responsibility of the reorganization company. This is merely because Article 104 (1) of the above Act does not constitute the method of exercising the right of rescission by the reorganization creditor, and the above argument

In addition, even if the defendant company bears a guarantee liability for the above reorganization company's liability under Article 104 (1) of the Company Reorganization Act, the defendant is expected to make a decision in accordance with the reorganization plan established by the above reorganization company under the premise that the specific contents and the method of exercising the liability for damages under the above Act should be reported as reorganization claim from the reorganization procedure of the reorganization company to the reorganization claim. The guarantee liability also depends on the purpose and form of the principal obligation determined according to the reorganization plan through the above procedure. In this case, the plaintiffs asserted that in this case, the defendant extinguished the liability of the reorganization company which is the principal obligor due to the failure to report their rights within the period of report of reorganization claim, and the defendant's guarantee liability was also extinguished. However, even if the repayment of the obligation of the reorganization company is prescribed by the reorganization procedure, it is a separate legal relationship between the reorganization plan and the creditor of the joint guarantor of the reorganization company, and even if the reorganization creditor did not report his claim under the

Furthermore, as to the number of damages suffered by the plaintiffs, the share value of the ASEAN environment, which was the object of the purchase and sale contract between the plaintiffs and ASEAN, can be deemed as KRW 130,00 per share as determined by the above parties around April 1998 as at the time the purchase and sale contract of this case was concluded. The facts as at the time of the cancellation of the purchase and sale contract of this case do not conflict between the parties, and thus, the amount of damages suffered by the plaintiffs shall be the amount calculated by subtracting the above 34,418 won from the amount obtained by multiplying the purchase and sale amount of shares by 130,000 won by the above 34,418 won per share (the first purchase and sale agreement of the plaintiffs). However, according to the premise that the agreement on delay payment by the plaintiffs had been concluded at the rate of 14% per annum, it is difficult to acknowledge that the above agreement existed until the above plaintiffs' assertion that the above parties had been paid damages for delay in the construction of 19,000.

Therefore, the defendant has the obligation to pay damages for delay from February 6, 201 to the sentencing date of this case, which is the sentencing date of this case where it is deemed reasonable that the defendant's obligation to pay damages for delay to the plaintiff's second instance amount of 1,242,56,00 won [13,00 won 】 130,000 won ? 130,000 won ? 9,271,454,00 won ? 97,000 won ? 30,000 won ? 764,656,000 won to the plaintiff's second instance [8,656,00 won ? 130,000 won - 34,418 won)] and each of the above amounts to the plaintiffs' second instance.

4. Conclusion

Therefore, all of the plaintiffs' primary claims are dismissed without merit, and the plaintiffs' primary claims added in the trial are accepted within the above scope of recognition. Since the judgment of the court below is unfair with different conclusions, the judgment of the court below is revoked, the plaintiffs' primary claims are all dismissed, the supplementary claims added in the trial are accepted within the above scope of recognition, and the rest of the preliminary claims are dismissed. It is so decided as per Disposition.

Judge Oh-hyn (Presiding Judge) and the Constitutional Court