[정리채권확정][미간행]
Whether the avoidance power under Article 78 of the former Company Reorganization Act ceases to exist due to the completion of the company reorganization procedure (affirmative), and whether the company reorganization procedure is terminated before the assets are recovered to the company pursuant to the avoidance power exercised during the process of the company reorganization procedure (affirmative)
Articles 78 (refer to Article 100 of the current Debtor Rehabilitation and Bankruptcy Act), 82 (refer to Article 105 of the current Debtor Rehabilitation and Bankruptcy Act), and 271 (refer to Article 283 of the current Debtor Rehabilitation and Bankruptcy Act) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005)
Supreme Court Decision 95Da30253 Decided October 13, 1995 (Gong1995Ha, 3775) Supreme Court Decision 2002Da46058 Decided July 22, 2004 (Gong2006Ha, 1884) Decided October 12, 2006
Teachers or Employees of Korea Mutual Savings Bank (Law Firm Jeongse, Attorneys Kim Min-young et al., Counsel for the plaintiff-appellant)
The liquidation company career of the liquidation company, the administrator of the division company's career and the administrator of the liquidation company's career, the taking over of the lawsuit (Attorneys Yoon Jae-sik et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2004Na82951 delivered on October 21, 2005
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
Article 78 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005, hereinafter the "Company Reorganization Act") provides that the right to set aside under Article 78 of the former Company Reorganization Act (the "Company Reorganization Act") is a special system with limited liability under the Company Reorganization Act, which is recognized to restore the company's property unfairly disposed prior to the decision to commence reorganization proceedings, and can only be exercised by the administrator on the premise that the reorganization proceedings are in progress. Thus, even if the right to set aside has been exercised during the reorganization proceedings, if the reorganization proceedings are completed prior to the recovery of the company's property, the right to demand return of the property against the other party or to demand redemption of the value thereof shall also be deemed to be extinguished as an effect of exercising the right to set aside (see Supreme Court Decisions 95Da30253, Oct. 13, 195; 2002Da46058, Jul. 22, 2004).
Examining the reasoning of the judgment below in light of the records, the court below's rejection of the defendant's right to set aside the grounds as stated in its holding is just and there is no error in the misapprehension of legal principles as to the nature of the denial lawsuit, the effect of the exercise of the right to set aside, and the effect of the completion of the reorganization proceedings
Furthermore, the Defendant’s remaining grounds of appeal are apparent that it is against additional and family judgment added to the above judgment even if the content of the judgment below is in itself, and as seen above, insofar as the lower court’s principal judgment is justifiable, the allegation in the grounds of appeal that the lower court erred in its additional judgment does not affect the conclusion of the judgment, and thus, it cannot be accepted without examining it.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)