[정리채권에대한부인의소][공2006.11.15.(262),1884]
Where a decision on the completion of reorganization proceedings is confirmed during the continuation of a claim based on an action of denial or the exercise of avoidance power under the former Company Reorganization Act, whether the lawsuit is concluded (affirmative), and whether the application for resumption is possible (negative)
The right to set aside under Article 78 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) is a special system under the Company Reorganization Act, which is recognized to restore the company's assets unfairly disposed of prior to the decision to commence reorganization proceedings and to maintain and restore the company's business, and is entitled to exercise only the custodian under the premise of the progress of the reorganization proceedings. Thus, even if the right to set aside is exercised during the reorganization proceedings, if the reorganization proceedings are terminated before the company's assets are recovered, the right to demand return of the assets to the other party or to demand redemption of the value thereof shall also be extinguished as an effect to exercise the right to set aside. Accordingly, if the decision to terminate the reorganization proceedings becomes final and conclusive during the course of the claim based on the avoidance action or the right to set aside, the qualification of the custodian shall be extinguished,
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to Article 283 of the current Debtor Rehabilitation and Bankruptcy Act) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005)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 Delivered on October 13, 1995 (Gong1995Ha, 3775) Supreme Court Decision 2002Da46058 Delivered on July 22, 2004
Plaintiff in the career of the reorganization company
[Defendant-Appellant] Defendant 1 and 3 others (Law Firm Gyeong, Attorney Park Jong-seok et al., Counsel for defendant-
Ansan Mutual Savings Bank (Law Firm Hanyang, Attorneys Kang Jong-soo et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2004Na81224 decided September 2, 2005
The instant lawsuit between the Plaintiff and the Defendant was completed upon September 27, 2005 by the Seoul Central District Court 2003da9 Company Reorganization Case. The Plaintiff’s motion for resumption of the Plaintiff’s motion for resumption is dismissed. The costs incurred by the motion for resumption of the lawsuit are borne by the Plaintiff’s motion for resumption of the lawsuit.
The grounds for the plaintiff's request for resumption and the grounds for appeal are examined.
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 maintain and restore the company's business by restoring 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 is exercised during the reorganization proceedings, if the reorganization proceedings are completed prior to the recovery of the company's property to the company, the right to demand return of the property to the other party as an effect of exercising the right to set aside or to demand redemption of the value thereof shall also be deemed extinguished. Thus, if a decision to terminate the reorganization proceedings becomes final during the course of exercising the right to set aside or the right to set aside, at the same time, the right related to the lawsuit shall not be extinguished (see Supreme Court Decision 205Da.
In light of the records, the lawsuit of this case is a suit filed by the plaintiff on the ground that the endorsement by the plaintiff applicant for the takeover of the lawsuit, which caused the plaintiff's claim regarding the defendant's claim for the bill payment based on the final judgment, is subject to the denial under Article 78 of the Company Reorganization Act. The decision to commence the company reorganization procedure was made on May 14, 2003 with respect to the plaintiff applicant for the takeover of the lawsuit, and the reorganization plan was approved, and the reorganization procedure was completed on September 27, 2005, which is subsequent to the judgment of the court below, and the decision became final and conclusive around that time. Accordingly, the lawsuit of this case was terminated by the completion of the above reorganization procedure, and the request for the continuation of this case also is without merit.
Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench that the termination of the lawsuit in this case is declared, that the plaintiff's request for continuation is dismissed, and the cost for the request for continuation of the lawsuit is borne by the plaintiff's request for continuation.
Justices Shin Hyun-chul (Presiding Justice)