[회사정리][공2006.1.15.(242),91]
[1] The meaning of the liquidation value that the above right holders shall be guaranteed in cases where the court determines a provision on the protection of rights for the rights of the right holders belonging to an Article which has consented to the reorganization program and decides to authorize the program
[2] The scope of validity of the mortgage established only on the section for exclusive use of a sectioned building
[3] The case holding that it is reasonable for the reorganization court to approve the alteration plan by excluding a site ownership in calculating the liquidation value of a reorganization security holder even if a security holder's right to a section for exclusive use of an aggregate building has been established, where the liquidation value of a security holder's right, including the site ownership, including the above site ownership, is guaranteed through the repayment value of a debt-to-equity swap in accordance with the alteration plan as it
[1] Where the court approves the reorganization program ex officio without obtaining the consent of a number of legal persons under some provisions, the provisions of Article 234(1) of the Company Reorganization Act, which provide for the right holder who belongs to the category of Article 234(1) of the Company Reorganization Act, for the sake of guaranteeing the substantial value of rights. In order to prevent damage to the essential contents of property rights, the right holder shall be guaranteed the liquidation value of the company's property at least in order to prevent damage to the essential contents of property rights. The liquidation value at this time refers to the amount assumed when the company separates the individual property that constitutes the company and disposes of it.
[2] The effect of a mortgage established on only a section for exclusive use of a partitioned building shall be limited to the right to use the site if the owner of that section for exclusive use acquires the right to use the site even after the fact, and thereby belongs to the same owner's ownership, unless there are special circumstances such as the provision that makes it possible to separately dispose of the right to use the site, and the right to use the site in a brigade shall also include the right to use the site in addition
[3] The case holding that even if a security right of a reorganization security holder takes an aggregate building as an object, and the registration of preservation of ownership in the name of the reorganization company and registration of establishment of a neighboring mortgage in the name of the reorganization security holder has not been completed on the part of exclusive ownership because the rearrangement project of the site is not completed, if the reorganization company acquires the ownership of the site in the future, the right to use the site becomes effective as a matter of course, so it is unreasonable to calculate the liquidation value of an object at a price other than the right to a site without deliberation and determination on the probability that the reorganization company acquires the ownership of the site; however, if the liquidation value of the security right of the reorganization security holder, including the right to a site, including the right to a site, is guaranteed through the repayment value of the debt-equity swap in the modified plan,
[1] Article 234 (1) of the Company Reorganization Act / [2] Article 358 of the Civil Act, Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings, Article 20 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 234 (1) of the Company Reorganization Act, Article 358 of the Civil Act, Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings, Article 20 (1) and (2) of the Act
[1] Supreme Court Order 2002Da121 Decided December 10, 2004 (Gong2005Sang, 227) / [2] Supreme Court Decision 94Da12722 Decided August 22, 1995 (Gong1995Ha, 3232) Supreme Court Decision 2000Da62179 Decided February 9, 2001 (Gong2001Sang, 636)
E.S. Specialized in Asset-backed Securitization (Law Firm Mapyeong, Attorneys Cho Yong-hwan et al., Counsel for the plaintiff-appellant)
Nonparty 1, the receiver of the New Ro-style Co., Ltd., the
Seoul High Court Order 2002Ra241 dated January 30, 2004
The special appeal is dismissed.
Expenses incurred by the special appeal shall be borne by the special appellant.
The purpose of Article 234(1) of the Company Reorganization Act, which provides for the protection of rights, is to ensure the substantial value of rights, in granting the approval of the reorganization programs ex officio by the court, even though the consent of a number of legal persons was not obtained in some Article, to ensure the substantial value of rights. Thus, in order to prevent the substantial damage of property rights, at least the liquidation value of the company’s property should be guaranteed by the right holder. The liquidation value at this time refers to the amount assumed at the time of separate disposal of the individual property constituting the company where the company is dissolved or extinguished through liquidation.
In addition, the effect of a mortgage established on only a section for exclusive use of a partitioned building shall be limited to the right to use the site if the owner of that section for exclusive use and the right to use the site belong to the same owner by acquiring the right to use the site after the fact, and the right to use the site shall also be included in the right to use the site except for superficies (see Supreme Court Decision 94Da1272, Aug. 22, 1995, etc.).
Therefore, even though the security right of a special appellant is an object of an aggregate building, and the registration of preservation of ownership in the name of a reorganization company and the registration of establishment of a mortgage in the name of a special appellant is completed only with respect to a section for exclusive use since the division and rearrangement project of a site is not completed, if the reorganization company acquires the ownership of the relevant site in the future, the right to use the site becomes effective as a matter of course, so it is unreasonable to calculate the liquidation value of an object at the price other than the right to a site without examining and determining at all the possibility that the reorganization company will acquire the ownership
However, according to the records, even if a right to a site is included, the liquidation value of the special appellant's security reaches 4.81% of the original claim, and the repayment value of the portion of cash repayment (60% of the principal shall be repaid in installments) to the special appellant under the revised plan of this case reaches 41.48% of the original claim. Thus, it is deemed that the liquidation value of the portion of debt-equity swap in the revised plan reaches 3.33% (=4.81% - 41.48%) is guaranteed.
Therefore, in light of the total number of stocks to be converted into excess of assets and the conversion price of the stocks to be converted into excess of assets in this case, it is apparent that a special appellant merely reflects the above value solely on the net asset value of the stocks to be converted into excess of assets in this case, considering the number of stocks to be converted into excess of assets in this case, and the conversion price of the stocks to be converted into excess of assets in this case, it is apparent that a special appellant reflects the above value solely on the net asset value of the stocks to be converted into excess of assets in light of the scale of the ordinary profit of the reorganization company as shown in the record, and on the other hand, considering the profit value of the stocks to be converted by a special appellant based on the conversion plan, it is apparent that the above value of the stocks to be converted into excess of assets in this case, and thus, it cannot be deemed as falling short of the liquidation value of the stocks to be converted into the above value of the stocks to be converted from the light of the ordinary profit of the reorganization company as shown in the record.
Therefore, it is just that the reorganization court approves the revised plan by putting the contents of the special appellant under the revised plan as a special appellant's protection provision. Since there is no reason for special appeal, it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Zwon (Presiding Justice)