[공탁금출급청구권확인][미간행]
[1] In a case where several persons are liable for performance in full, if the company reorganization procedure commences for one person, and the creditor exercises his/her right as a reorganization creditor with respect to the total amount of the claim, and there is a subrogation for part of the claim, whether the person who has subrogated for the performance may exercise his/her right as a reorganization creditor together with the creditor in proportion to the amount he/she performed (negative)
[2] The case holding that where a reorganization creditor prepares a contract for the transfer of claim in the course of a partial repayment of a guarantee obligation from a guarantor of the reorganization company, it is limited to the case where the reorganization creditor takes full repayment of the reorganization claim in the future, and it does not mean that he can exercise a right to preferential payment concerning the reorganization claim against the guarantor, or exercise a right to preferential payment concerning the reorganization claim in the course of a partial repayment of a guarantee obligation from the guarantor of the reorganization company
[1] Article 110 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of May 31, 2005) (see current Article 126 of the Debtor Rehabilitation and Bankruptcy Act), Article 483 (1) of the Civil Act / [2] Article 105 of the Civil Act, Article 110 of the former Company Reorganization Act (repealed by Article 2 of Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of May 31, 2005) (see current Article 126 of the Debtor Rehabilitation and Bankruptcy Act)
[1] Supreme Court Decision 2001Da24938 decided Jun. 29, 2001 (Gong2001Ha, 1742)
Ebergin Specialized Company (Law Firm Pacific, Attorneys Kim Man-man et al., Counsel for the defendant-appellant)
Korea Deposit Insurance Corporation (Attorney Cho Jae-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2003Na37565 delivered on December 18, 2003
The appeal is dismissed. The costs of appeal are assessed against the defendant.
According to the records, the Seoul Bank (hereinafter “Seoul Bank”) received dividends from the Defendant as part of the guaranteed obligation and prepared a contract for the assignment of the claim in this case to the Defendant. However, if several persons are liable to perform all of the claims, if reorganization procedures commence for one person, and a creditor has paid part of the claim after he exercised his right as a reorganization creditor with respect to the total amount of the claim in this case, only the creditor may exercise his right as a reorganization creditor with respect to the total amount of the claim in this case, and it does not mean that the person who made a subrogation for part of the claim exercises his right as a reorganization creditor with the creditor in proportion to the value of his repayment (see Supreme Court Decision 2001Da24938, Jun. 29, 2001, etc.). In full view of other records, the contract for the assignment of the claim in this case should not be deemed to have been exercised in preference to the transfer of the claim in this case to the Seoul Bank, and it should not be deemed to have been exercised in preference to the defendant in this case and the Seoul Bank.
Although there is some inappropriate points in the court below's reasoning, it is proper to reject the defendant's argument that the defendant received the reorganization claim of this case from the Seoul Bank before the plaintiff, and there is no error of law by misunderstanding of facts against the rules of evidence or by misapprehending the legal principles on Articles 108 and 110 of the Company Reorganization Act and the assignment of claims, as alleged in the grounds of appeal.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Ji-hyung (Presiding Justice)