[2] In cases where a conversion of investment is prescribed in the rehabilitation plan for the rehabilitation debtor, who is the principal debtor, in lieu of full or partial repayment of rehabilitation claims or rehabilitation security rights, the scope of extinction of the guaranteed obligation of the debtor debtor, and whether such legal principle applies likewise to the obligations of the person who bears the obligation together with the debtor, such as joint and several

[3] In a case where a rehabilitation debtor submitted a rehabilitation plan to implement large-scale reduction of capital for the old stocks, conversion of investment to rehabilitation creditors, etc., and large-scale issuance of new stocks to an underwriter who prepaid the purchase price of new stocks at short intervals and its contents are publicly notified pursuant to the Net Asset Value Act, etc. The method of calculating the market price of a conversion into equity shares by means of the net asset value method, etc. / The same applies to a case where the rehabilitation plan aims to implement the reduction of capital due to the consolidation of equity shares after conversion into equity and the issuance of new stocks to an underwriter who prepaid the purchase price of new stocks at short intervals (affirmative), and whether the scope of extinguishment of debt of a guarantor, etc. can be calculated by multiplying the net asset value per share by the number of stocks converted into the net asset value per share (affirmative)

1. Regarding ground of appeal No. 1

This part of the ground of appeal is justified in the misapprehension of the rules of evidence as to the establishment and the degree of proof of a claim for indemnity and the misapprehension of the legal principle, which recognized the establishment of a claim for indemnity without failing to perform the obligation to assert and prove the existence of a claim for indemnity.

However, this assertion is merely an issue of dispute over the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and it does not constitute a legitimate ground for appeal.

2. Regarding ground of appeal No. 2

A. Article 231 of the former Company Reorganization Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same applies) provides, “Any act of giving special benefits to any reorganization creditor, security holder, or stockholder without complying with the conditions of the reorganization plan shall be null and void.” Here, the term “act of giving special benefits” refers to an act of offering special benefits that are different from the conditions of the reorganization plan in order to interfere with the fair establishment of the reorganization plan or unfairly affect the establishment of the reorganization plan. Therefore, in order to constitute an act of offering special benefits prohibited by the former Company Reorganization Act, in addition to the fact that the provision of special benefits or the agreement thereof was made before the decision of the reorganization plan is confirmed by the reorganization company, etc., to prevent the fair establishment of the reorganization plan through the provision of special benefits, or to unfairly affect the establishment of the reorganization plan (see Supreme Court Decision 2006Da36384, Dec. 27, 2007; 2006Da3636384, Feb. 296, 20004

B. After compiling evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined to the effect that, after the completion of reorganization proceedings, the act of an ex post facto bank (hereinafter “ex post facto bank”) in writing with the Plaintiff does not constitute an act of offering special benefits under Article 231 of the former Company Reorganization Act. In light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the validity of the act of offering special benefits to reorganization creditors, contrary to what is alleged in

C. The remaining grounds of appeal on this part are not relevant to the first argument at the time of the final appeal and the matters to be examined ex officio, and thus, it cannot be a legitimate ground of appeal, and there is no reason to accept the allegation even if examined.

3. As to grounds of appeal Nos. 3 and 4

A. Article 250(2)1 of the Debtor Rehabilitation and Bankruptcy Act provides that the rehabilitation plan does not affect any right held by any rehabilitation creditor or any rehabilitation secured creditor against the guarantor of the debtor for whom the rehabilitation procedure has commenced (hereinafter “Rehabilitation debtor”) or against any other person who bears obligations together with the rehabilitation debtor. However, in cases where the rehabilitation plan of the rehabilitation debtor who is the primary debtor and any rehabilitation security right is determined to convert a debt into a equity swap in lieu of all or part of the rehabilitation claim or the rehabilitation security right, the guarantor’s surety obligation of the rehabilitation debtor shall be deemed to have been repaid the amount of debt equivalent to the appraised amount of the rehabilitation claim, etc. within the limit of the amount of the rehabilitation claim, etc. to be substituted for repayment through the conversion of new shares acquired by the rehabilitation creditor, etc. as of the date when the issuance of new shares by the conversion into a equity swap takes effect (see, e.g., Supreme Court Decisions 2002Da12703, Nov. 12, 2009>

Furthermore, in a case where a rehabilitation debtor submits a rehabilitation plan to implement a large-scale reduction of capital for the old stocks, conversion of investment to rehabilitation creditors, etc., and large-scale issuance of new stocks to underwriters who prepaid the acquisition price of new stocks at short intervals for a short period and publicly announced the contents thereof, the financial structure and the change in the number of issued stocks pursuant to the rehabilitation plan is a clear information available to the public. Thus, even if a financial structure and the change in the number of issued stocks are not yet implemented as of the effective date of the stocks issued through a conversion of investment (hereinafter “investment conversion stocks”), it is reasonable to view that the market price of the investment conversion stocks is formed by reflecting the circumstance that a large-scale increase of issued stocks should be conducted immediately, barring any special circumstances. Therefore, where the market price of the investment conversion stocks is calculated based on the net asset value law because it is difficult to prove the normal practices of transactions of the investment conversion stocks as of the date of the entry into force of the investment conversion, it is not reasonable to assess the net asset value of 200 shares after considering the net asset value change in the rehabilitation plan.

This also applies where the rehabilitation plan aims to implement the capital reduction due to the consolidation of equity shares after conversion into equity and the issuance of new stocks to the underwriters who prepaid the purchase price of new stocks at short intervals. However, since the net asset value per share assessed based on the change of the financial structure and increase of the number of issued stocks is the net asset value per share of combined equity shares, it can be calculated by multiplying the net asset value per share of combined equity shares by the number of equity shares combined with the net asset value per share.

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

1) On June 11, 2009, the Emergency Bank was established with rehabilitation procedures (hereinafter “instant rehabilitation procedures”) on December 10, 201, and was subject to the rehabilitation plan approval order on December 10, 201, and was subject to the decision to discontinue rehabilitation procedures on April 29, 201. The Plaintiff is a rehabilitation creditor and a rehabilitation secured creditor of the Emergency Bank. The Defendant is a newly incorporated company that entered into an agreement on October 17, 2005, which entered into the instant rehabilitation procedure, to simultaneously take over the Plaintiff’s obligations and jointly and severally repay the said obligations with the Emergency Bank.

2) On September 17, 2010, the date of the commencement of the instant rehabilitation procedure, the Defendant entered into an investment contract with Sambuconsium (hereinafter “subscriber”) with the content that the underwriter acquires shares of KRW 20.325 billion, but the underwriter entered into an investment contract with the content that the underwriter acquires new shares of KRW 10.63 billion and corporate bonds of KRW 10.62 million.

3) On December 10, 2010, the instant rehabilitation plan was approved by the rehabilitation court on December 10, 2010. The key contents of the said rehabilitation plan are as follows, after receiving the above acquisition price from the underwriter in advance, to prepare and submit the rehabilitation plan reflecting the contents of the said investment contract.

A) ① The repayment of rehabilitation claims and rehabilitation security rights by means of partial conversion into equity and partial cash payments shall be made, and new shares shall be issued by such conversion into equity. ② The joint shares of 23,435,117 shares are reduced to 23,433 shares (joint shares 1,00:0:0 of the former shares) and 34,787,040 shares of the said conversion into equity shares (the joint shares 220:1), 147,147 shares (the balance of rehabilitation claims and rehabilitation security rights except for the obligations of commercial transactions against a related party), respectively. ③ New shares 2,032,60 shares through capital increase through the said investment contract shall be issued.

B) The effect of capital reduction for old stocks under the above paragraph (2) is on the date of the rehabilitation plan approval date, the effect of issuance of new stocks by conversion of investment under the above paragraph (1) is on the day following the date of the rehabilitation plan approval date (in the case of rehabilitation security rights for undetermined indemnity obligations and rehabilitation claims, on the last day of the year belonging to the date of the date of subrogated payment or the date of confirmation of the amount not repaid by agreement with creditors in the case of rehabilitation claims), and the effect of capital reduction for new stocks by conversion of investment under the above paragraph (2) is on the day following the effective date of issuance of new stocks by conversion of investment, and the effect of issuance of new stocks

4) Accordingly, on December 31, 2010 and December 31, 2011, the portion of the Plaintiff’s indemnity bonds that were to substitute for payment through debt-equity swap was converted into ordinary shares of 10,000:5,000 (for rehabilitation security rights, 5,000:5,000) as of December 31, 201, and the issuance of new shares became effective on the day, and immediately following the date of the conversion into equity shares, the shares at par value of 220:1, each of which was reduced as of January 1, 2011 and January 1, 2012, were issued.

5) Meanwhile, on April 29, 2011, the Plaintiff filed an application for the determination of purchase price of shares with Daegu District Court No. 2011 non-conforming39, when the Plaintiff, who was holding part of the shares of the Plaintiff, filed an application for the determination of purchase price of shares, presented the claim for purchase of shares.

6) While the Daegu District Court excluded the effect of a merger with the TKK Holdings Holdings, it decided to KRW 10,217 per share as of May 8, 201, the said decision became final and conclusive upon the dismissal of an appeal by the opposite party. The said share price is the numerical mean of net asset value of KRW 20,435 per share (=45,082,280,945 ±2,206,127) and KRW 0 per share of net asset value (=45,082,280,945 ±2,945 ±2,206,127) and KRW 45,082,80,280,945 ; and the number of issued and outstanding shares is 2,206,127 shares as of April 30, 201.

C. We examine these facts in light of the legal principles as seen earlier.

The rehabilitation plan approved by the rehabilitation procedure in this case as to the obligor does not affect the rights of the Defendant, who is jointly and severally liable by the Plaintiff. However, since the Plaintiff’s joint and several liability was converted into equity in lieu of partial repayment of the Plaintiff’s rehabilitation claim and rehabilitation security right according to the above rehabilitation plan, the Defendant’s joint and several liability should be deemed to have been repaid within the scope of the amount of the amount of the rehabilitation claim, etc

However, the above rehabilitation plan’s content is to implement the capital reduction for the old stocks, the conversion of investment into equity investment for rehabilitation creditors, the reduction of capital for the stocks to be converted into equity investment, and the issuance of new stocks to underwriters who have prepaid the acquisition price of new stocks at short intervals. Thus, in calculating the market price of the stocks converted into equity investment under the Net Asset Value Act, the net asset value per share should be assessed by taking into account the changes in the financial structure due to the increase in the number of issued stocks, and the increase in the number of issued stocks. As such, the above plan is a net asset value per share of the combined stocks converted into equity investment, and thus, the scope

D. The lower court determined that it is reasonable to calculate the amount substantially satisfied by the Plaintiff based on the “number of stocks acquired after consolidation” as of the date following the effective date of issuance of new stocks, but calculated the Defendant’s scope of debt extinction by means of multiplying the said number of stocks by the stock price “the effective date of issuance of new stocks” ( December 31, 2010 and December 31, 201). However, as seen earlier, the lower court did not err by misapprehending the net asset value per share 20,435 won and 00 won per share after the consolidation of stocks into equity investment as of May 8, 201, based on the reasoning that the lower court did not have any reasonable difference in the net asset value per share 20,435 won per share as of January 1, 201 and the above net asset value per share 10,0000 won per share after the consolidation of stocks into equity investment, as of April 31, 2011 or the net asset value per share 201.

E. The remaining grounds of appeal are that the court below erred in finding facts based on the calculation of the number of stocks and market value, but it is not a legitimate ground of appeal since it erred in finding evidence and fact-finding, which are all the exclusive authority of the fact-finding court, and further, even if examining the fact-finding and decision of the court below, it did not err in the misapprehension of the principle of free evaluation of evidence in violation

4. 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 on the bench.

Justices Park Jung-hwa (Presiding Justice)