[회사정리계획인가][공1997.2.1.(27),285]
[1] Method of appeal against the decision on whether to approve the company reorganization plan (=special appeal)
[2] The meaning of the principle of equality under Article 229 of the Company Reorganization Act
[3] The purpose of Article 221 (2) of the Company Reorganization Act concerning reduction of the company's capital
[1] As to the decision of the appellate court on the approval of the corporate reorganization plan, only the special appeal under Article 420 of the Civil Procedure Act is permitted pursuant to Articles 237(4) and 8 of the Company Reorganization Act.
[2] Since the equality under Article 229 of the Company Reorganization Act refers not to formal equality, but to substantive equality that does not go against the concept of fairness and fairness, it cannot be deemed as a violation of the above principle of equality by stipulating in the reorganization plan conditions unfavorable to other reorganization creditors as to the management owner who caused the bankruptcy of the company, his/her siblings, and his/her wife, etc., who are in a particularly deep relationship with the company.
[3] In light of the purport of Article 221(2) of the Company Reorganization Act, it does not mean that only up to 2/3 of the shares held by a director or a shareholder who has caused the commencement of the company and a shareholder in a special relationship with the company may be retired, but it does not mean that the total amount of obligations of the company exceeds the total amount of active assets, the company must retire all or at least 2/3 of the shares held by the shareholders responsible for the insolvent management, depending on the circumstances. Thus, it cannot be said that the company’s error in its management has led to the company’s bankruptcy, and the company’s shares held by the shareholders in a special relationship with the management owner or his/her dependent, which caused the company’s bankruptcy
[1] Article 237 of the Company Reorganization Act, Article 420 of the Civil Procedure Act / [2] Article 229 of the Company Reorganization Act / [3] Article 221 (2) of the Company Reorganization Act
[1] Supreme Court Order 87Ma277 dated December 29, 1987 (Gong1988, 398), Supreme Court Order 89Ma879 dated December 23, 1989 (Gong1990, 341) Supreme Court Order 90Ma954 dated May 28, 1991 (Gong1991, 1728)
Kim through Kim, et al. (Attorney Park Jong-chul, Counsel for the re-appellant-appellant)
Administrator Naun Industrial Co., Ltd., Ltd.
Seoul High Court Order 87Ra14 dated February 5, 1988
The special appeal is dismissed.
With respect to the decision of the appellate court on the approval of the corporate reorganization plan, only a special appeal under Article 420 of the Civil Procedure Act shall be permitted pursuant to Articles 237(4) and 8 of the Company Reorganization Act. Thus, the reappeal of this case shall be deemed a special appeal and shall be judged in order to determine the reasons therefor.
On the first ground for appeal
In the company reorganization procedure, the change of the right naturally occurs as of the time of the approval approval decision, so there is no need to express an intention of exemption for the claim for indemnity of special resistance Kim-type, Kim-type, Lee Byung-hee, Lee In-hee, and Kim Byung-chul.
On the second ground for appeal
Since the equality under Article 229 of the Company Reorganization Act refers to not formal equality but to substantive equality that does not go against the concept of fairness and equity, as recognized by the court below, if the special resistance Kim Byung-jin, as recognized by the court below, was a business owner causing the bankruptcy of the principal company of this case, and the remaining special resistances, such as the punishment and punishment, are in a particularly deep relationship, they cannot be deemed to be in violation of the principle of equality as mentioned above by setting forth the unfavorable conditions against other reorganization creditors in the reorganization plan of this case.
On the third ground for appeal
Article 221(2) of the Company Reorganization Act does not mean that only up to two-thirds of the shares held by a director, a shareholder, and a shareholder in a special relationship with the company, may be retired, in light of the purport of the provision, from among the following: (a) if the total amount of obligations of the company exceeds the total amount of active assets, the shares held by the shareholders responsible for the insolvent management shall be retired up to two-thirds; (b) as recognized by the lower court, the shares held by the company in a special resistance to the bankruptcy status of the company in excess of its obligations due to a mistake in the management of the Kim Byung-cick, which is a special resistance, and (c) Kim Jong-ju, a special resistance to the special resistance, and Kim Jong-J, who are his/her ancillary, shall not be deemed to violate the fairness and fairness. Ultimately, there is no error in the misapprehension of legal principles set forth in the lower judgment, and no special ground as provided for in Article 420 of the Civil Procedure
All arguments are without merit.
Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Ansan-man (Presiding Justice)