2018 Gaz. 247023 Receiving money

A Limited Liability Company A

B A.

Law Firm LLC et al., Counsel for the defendant-appellant

[Defendant-Appellant]

April 19, 2019

May 31, 2019

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 122,10,000 won with 6% interest per annum from May 30, 2015 to the service date of the original copy of the instant payment order, and 15% interest per annum from the next day to the day of complete payment.

1. The party's assertion

On June 9, 2018, the Plaintiff entered into a contract with D on June 9, 2018 with the bankruptcy trustee of C Co., Ltd. (hereinafter referred to as “C”), and entered into a contract with C to take over KRW 122,100,000 of the construction cost claim against C, which occurred around May 2015, and notified the Defendant of the assignment of the claim. The Defendant asserts that the Plaintiff is liable to pay the above amount and delay damages.

Accordingly, the defendant asserts that the lawsuit of this case is unlawful as there is no benefit of protecting the rights, since it was not reported as a rehabilitation claim even as the claim for the construction cost claimed by the plaintiff is a rehabilitation claim, and the above claim is forfeited according to the approval decision

2. Determination

A. According to the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act"), any property claim arising before the commencement of rehabilitation procedures against the debtor constitutes a rehabilitation claim (Article 118); any rehabilitation creditor who intends to participate in rehabilitation procedures shall report his/her rehabilitation claim to the court within the reporting period set by the court (Article 148); and any custodian shall prepare and submit a list of rehabilitation creditors to the court separate from the report of the rehabilitation creditor (Article 147); and any claim of the rehabilitation creditor recorded in the list of rehabilitation creditors shall be deemed reported to the court (Article 151); and when the rehabilitation plan is decided to authorize the rehabilitation plan, the debtor shall be exempted from liability for all rehabilitation claims except any right recognized under the rehabilitation plan or the Debtor Rehabilitation Act (Article 251). Accordingly, the right that is not reported during the rehabilitation procedures or entered in the list of rehabilitation creditors should be forfeited, and even if the rehabilitation procedure is completed thereafter, the claim seeking the implementation or confirmation of the forfeited rehabilitation claim becomes invalid (see, e.g., Supreme Court Decision 2004Da436474, Apr. 47, 207).

B. Comprehensively taking account of the overall purport of statement and arguments as to the instant case: (a) the Defendant filed for rehabilitation with Suwon District Court 2016 meeting 20057 on December 21, 2016 and appointed E, a company director, as a custodian upon commencement of rehabilitation procedures on January 26, 2017; (b) the rehabilitation plan was issued on July 19, 2017; (c) the rehabilitation plan was issued on November 19, 2017; (d) the claim for construction price of C was not stated in the list of rehabilitation creditors, etc. prepared by the administrator in the rehabilitation procedure; and (e) C was unable to report the rehabilitation claim within the reporting period; (c) it is reasonable to view that the instant claim for construction price was forfeited as of July 19, 2017. Therefore, there is no benefit in protecting the Plaintiff’s rights.

C. As to this, the plaintiff alleged to the effect that the defendant intentionally omitted the claim of this case in the creditor list even though he knew of the existence of the claim of this case, but he did not dispute it with a separate legal assertion in relation to the administrator E, such circumstance alone cannot be viewed as not being exempted from the claim of construction payment of this case. The above argument is without merit.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges Kim Jae-jin