[임금] 상고[각공2004.8.10.(12),1133]
[1] In a case where a bankruptcy claim is reported with respect to a estate claim under the Bankruptcy Act, whether the cause for interruption of prescription under Article 171 of the Civil Act is applicable (negative)
[2] The case holding that the interruption of prescription cannot be viewed as effective even if an employee of the bankrupt reported a bankruptcy claim on the above claim, since the bankrupt's bonus claim that was not paid by an employee is an estate claim under Article 38 (10) of the Bankruptcy Act that does not require any participation in the bankruptcy procedure
[1] Article 168 subparagraph 1 of the Civil Code and Article 171 of the Civil Code stipulate procedures such as filing a bankruptcy report (Articles 15 and 201 of the Bankruptcy Act). On the other hand, Articles 40 and 43 of the Bankruptcy Act provide that an obligee may receive reimbursement from a bankruptcy foundation from time to time without resorting to bankruptcy procedures such as filing a bankruptcy claim report (Articles 40 and 43 of the Bankruptcy Act). Article 171 of the Civil Code provides that an intervention in a bankruptcy claim shall be distinguished from a judicial claim under Article 170 of the Civil Code as a cause interrupting prescription, in full view of the special nature of any bankruptcy claim that cannot be exercised without resorting to bankruptcy procedures. In full view of the above, Article 168 subparagraph 1 of the Civil Code and Article 171 of the Civil Code provide that an obligee shall report his/her claim in order to join the bankruptcy foundation in accordance with Article 201 of the Bankruptcy Act with respect to the estate claim, and it does not necessarily require that the interruption of prescription of bankruptcy claim is effective.
[2] The case holding that the interruption of prescription cannot be viewed as effective even if an employee of the bankrupt reported a bankruptcy claim on the above claim, since the bankrupt's bonus claim that was not paid by an employee is an estate claim under Article 38 (10) of the Bankruptcy Act that does not require any participation in the bankruptcy procedure.
[1] Article 38 subparagraph 10 of the Bankruptcy Act, Article 171 of the Civil Act / [2] Article 38 subparagraph 10 of the Bankruptcy Act, Article 171 of the Civil Act
Literature (Law Firm Hanl, Attorneys Kim Yong-sik, Counsel for the plaintiff-appellant)
The bankruptcy trustee of the bankrupt building industry corporation
Seoul District Court Decision 2003Gaso9065 Delivered on October 17, 2003
June 3, 2004
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance is revoked. The defendant shall pay to the plaintiff the amount of KRW 5,440,440 with 5% per annum from January 1, 2001 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment (the plaintiff reduced the claim for damages for delay at the trial).
1. The assertion and judgment
With respect to the Plaintiff’s claim for payment of KRW 5,440, which was not received in August 198, 198, as the cause of the claim in this case, for which the Plaintiff had worked for the East Asia Construction Industry Co., Ltd., the Defendant, a bankruptcy trustee of the above company, has asserted that the Plaintiff’s claim for the above bonus has expired after the three-year extinctive prescription. Thus, it is obvious in the record that the instant claim was filed on January 14, 2003, which was more than three years after the lapse of the three-year period from the 1998 when the claim for the bonus occurred. Thus, the above bonus claim has already ceased to exist before the instant lawsuit was filed, and the Defendant’s defense has merit, and the Plaintiff’s above assertion is without merit without any need to further examine.
Therefore, the Plaintiff’s assertion that the above statute of limitations has been interrupted because the Plaintiff filed a bankruptcy claim regarding the above bonus claim on May 2001, which was before the expiration of the statute of limitations. Accordingly, according to each of the above statements, the Plaintiff filed a bankruptcy claim report of KRW 11,637,10, including the unpaid bonus 5,458,709, around June 19, 2001 and the total amount of KRW 11,637,00,00,000, including the bankruptcy claim of KRW 198,000,000, around June 19, 2001, it is clear that the Plaintiff’s above unpaid bonus claim falls under the estate claim of Article 38 subparag. 10 of the Bankruptcy Act, and thus, it cannot be deemed as having been interrupted without resorting to bankruptcy procedures (Articles 15 and 201 of the Bankruptcy Act). Thus, Article 7 of the Civil Act provides that the Plaintiff’s bankruptcy claim and the interruption of prescription period cannot be seen as one of bankruptcy claim under Article 17 of the Bankruptcy Act.
2. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.
Judges Kim Yong-ho (Presiding Judge)