[강제집행정지][공2000.6.1.(107),1130]
In a case where a payment of money is sought by combining with an action of denial as stipulated in Article 82 of the Company Reorganization Act, whether provisional execution is permitted for the part of the order of monetary payment (affirmative)
The right to set aside under Article 78 of the Company Reorganization Act is a special system under the Company Reorganization Act, which is recognized to restore the company’s assets that were unfairly disposed prior to the commencement order of reorganization proceedings, and thereby maintain and restore the company’s business. According to Article 82 of the same Act, the right to set aside may be claimed as a custodian by a prompt and simplified decision procedure instead of filing a lawsuit of setting aside, and a reorganization creditor, etc. may bring a defense of setting aside in a lawsuit of setting aside and obtain the effect of setting aside. On the other hand, the declaration of provisional execution is a system for preventing the abuse of the right to appeal and ensuring the right to a prompt trial with respect to the people’s property rights by allowing prompt enforcement of rights. In light of the purport of the provisional execution system and the method of filing a lawsuit of setting aside, it is reasonable to interpret that provisional execution may be allowed for the portion of the order to set aside money if a claim is filed in combination with a lawsuit of setting aside.
Articles 78 and 82 of the Company Reorganization Act, Article 199 of the Civil Procedure Act
Administrator of Sam-U.S. Special Steel Co., Ltd. (Law Firm Pacific, Attorneys Kim Jong-man et al., Counsel for the defendant-appellant)
Seoul District Court Order 99Kao12889 dated October 15, 1999
The order of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.
We examine the grounds for special appeal.
1. According to the records, since the special appellant filed a claim for denial of provisional execution against the company with the special appellant as defendant 9 Gohap6314, Seoul District Court's 99 Gohap6314, which was concluded on March 18, 1997 between the special appellant and the comprehensive administrator of the port, the special steel corporation shall pay 64.1 billion won of the balance of the contract for the liquidation of the liquidation company's 6.4 billion won to the liquidation company's comprehensive administrator of the port, which was to be paid to the liquidation company's 6.4.1 billion won of the balance of the contract for the sale of the liquidation of the liquidation company's 6.4.1 billion won of the liquidation contract's 6.1 billion won of the liquidation contract's 9.1 billion won of the provisional execution order to the effect that the special steel corporation's 9.1 billion won of the liquidation contract's 9.1 billion won of the original court's 9.19.19.
2. The right to set aside under Article 78 of the Act is a special system under the Company Reorganization Act, which is recognized to maintain and improve the company's business by restoring the company's assets that were unfairly disposed of prior to the commencement order of reorganization proceedings (see Supreme Court Decision 95Da30253, Oct. 13, 1995). According to Article 82 of the Act, the right to set aside may be claimed as a prompt and simple decision procedure instead of filing a lawsuit for setting aside, by stipulating that the custodian exercises the right by means of lawsuit, claim for setting aside, or defense, and the debtor may file a lawsuit for setting aside in lieu of filing a lawsuit for setting aside. In the case of a lawsuit for setting the reorganization claim, which is instituted by the reorganization creditor, etc.,
On the other hand, the declaration of provisional execution is a system to guarantee the right to a prompt trial with the people's property rights by preventing abuse of the right to appeal and allowing prompt enforcement of the right to appeal. Thus, considering the purport of such provisional execution system and the fact that the right to set aside can be exercised as a claim or defense, etc. other than the method of filing a lawsuit, it is reasonable to interpret that provisional execution can be allowed for the portion of the order to pay money when accepting a claim where a claim is sought by combining with a lawsuit of set aside. The Supreme Court ruling cited by the court below differs
As seen earlier, the order of the court below that accepted the application for the suspension of compulsory execution by the comprehensive anti-paragraph (b) on the ground that the execution cannot be allowed in such a case is erroneous in the misapprehension of legal principles as to the denial under the Company Reorganization Act, and the part pointing out this out among the grounds for special appeal
Therefore, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-sik (Presiding Justice)