Seoul Guarantee Insurance Co., Ltd. (Attorney Bailment-il, Counsel for defendant)

Defendant (LLC & Yang LLC, Attorneys Kim Sung-ho et al., Counsel for the defendant-appellant in bankruptcy)

June 17, 2016

1. The plaintiff's claim is dismissed.

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

As for KRW 3,99,722,835 and KRW 258,91,835 among the Plaintiff, the Defendant shall pay to the Plaintiff an amount equivalent to KRW 3,740,731,00 with an annual amount of KRW 6% from December 20, 2014 until the service date of a copy of each complaint of this case from December 31, 2014 to the service date of a copy of each complaint of this case, and KRW 15% with an annual amount of KRW 3,99,722,835 from the next day to the day of full payment.

1. Basic facts

(a) Granting subsidies for relocating Jeju Special Self-Governing Province;

1) On September 29, 201, 201, Mamo Newel Co., Ltd. (hereinafter “Mamo Newel”) entered into a contract for occupancy of the Jeju Advanced Science Complex with the Jeju Free International City Development Center and the head office and research institute of Mamo Newel to move into the Jeju Jeju Advanced Science Complex located in the Jeju Jeju Jeju Special Self-Governing Province. On August 16, 2012, Jeju Special Self-Governing Province decided to provide subsidies, etc. granted prior to the Jeju Special Self-Governing Province

2) The Jeju Special Self-Governing Province requested Ma Newel to submit a performance guarantee insurance policy to relocate an enterprise and secure the performance of investment before it grants a subsidy in accordance with the above decision to grant the said subsidy. From August 28, 2012 to January 4, 2013, Ma Newel entered into an agreement on a guarantee for respective implementation (payment) relating to location subsidy and export-related additional subsidy, facility investment subsidy, export-related additional subsidy, export-related additional subsidy, and export-related additional subsidy with the Plaintiff as the Jeju Special Self-Governing Province, and submitted it to the Jeju Special Self-Governing Province.

3) Accordingly, Jeju Special Self-Governing Province paid 685,746,000 won with the location subsidy and the export company additional subsidy on August 31, 2012, and 2,225,152,000 won with the facility investment subsidy on November 16, 2012, and 635,757,000 won with the export company additional subsidy on January 9, 2013, respectively.

(b)subsidies for the establishment of workplace child care centers in Korea Labor Welfare Corporation;

1) On June 17, 2014, Korea Workers’ Compensation and Welfare Service decided to provide subsidies for the establishment of workplace child care centers in Ma Newel, a nursery.

2) Before granting subsidies in accordance with the above decision on support, the Korea Workers’ Compensation and Welfare Service (Korea Workers’ Compensation and Welfare Service) demanded to submit a guaranty insurance policy to secure the establishment and implementation of workplace child care centers, and on July 18, 2014, Ma New Elel concluded a guarantee agreement on the implementation of subsidies for the creation of child care centers (payment) with the Plaintiff and the insured as the Korea Workers’ Compensation and Welfare Service, and submitted the insurance policy

3) Accordingly, on August 11, 2014, the Korea Workers’ Compensation and Welfare Service paid KRW 257,300,000 of the Child Care Center’s creation subsidy (hereinafter referred to as the “instant subsidy” in total, and the respective performance (payment) guarantee insurance contracts entered into between Ma New El and the Defendant (hereinafter referred to as the “instant guarantee insurance contract”).

(c) Decision on the redemption of subsidies and payment of insurance proceeds to Korea Labor Welfare Corporation and Jeju Special Self-Governing Province;

1) On November 4, 2014, the Korea Workers’ Compensation and Welfare Service determined the cancellation and return of the decision to grant subsidies on November 4, 2014, on the ground that Ma New York was abolished within five years from the date on which it received subsidies from a workplace child care center, and claimed the Plaintiff to pay

2) In addition, Jeju Special Self-Governing Province decided on November 28, 2014, on the ground that it did not submit data on investment amount and full-time employees within the investment period promised pursuant to the business plan submitted by Ma Newel at the time of applying for subsidies, and claimed the Plaintiff to pay the insurance proceeds from the insurance accident.

3) Accordingly, on December 19, 2014, the Plaintiff paid KRW 258,991,835 insurance money to the Korea Workers’ Compensation and Welfare Service, and KRW 3,740,731,000 of the insurance money to Jeju Special Self-Governing Province on December 30, 2014, respectively, in accordance with the instant guarantee insurance contract.

(d) Bankruptcy of Matern Newel;

on December 9, 2014, Ma Newel applied for the declaration of bankruptcy in this court, and this court appointed the defendant as a bankruptcy trustee in the same day.

[Ground of recognition] The fact that there is no dispute, entry of Gap's 1 through 11 (if there is an additional number, including a branch number; hereinafter the same shall apply) and the purport of whole pleadings

2. The plaintiff's assertion

In accordance with the Act on the Management of Subsidies from Jeju Special Self-Governing Province and the Korea Workers' Compensation and Welfare Service (hereinafter "the Subsidy Act"), the Plaintiff paid insurance proceeds to Jeju Special Self-Governing Province and the Korea Workers' Compensation and Welfare Service, but failed to perform its duties, decided to return the instant subsidy.

In addition, the Plaintiff acquired the claim for the refund of the instant subsidy to the Ma newel in accordance with the decision of return of the instant subsidy by Jeju Special Self-Governing Province and the Korea Workers' Compensation & Welfare Corporation pursuant to Article 473 subparagraph 2 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter " Debtor Rehabilitation Act"). In addition, according to the legal principles of subrogation or subrogation by insurers, the Plaintiff acquired the claim for the refund of the instant subsidy to the Ma newel in accordance with the legal principles of subrogation or subrogation by subrogation by insurers, and the relevant claim acquired by the Plaintiff does not lose the nature

Therefore, the defendant, who is the bankruptcy trustee of Ma Newel, is obligated to return the instant subsidy to the plaintiff.

3. Determination

A. Legal nature of the subsidy of this case

Article 2 Subparag. 1 of the Subsidy Act provides, “The term “subsidies” means subsidies (limited to subsidies granted by the State to local governments or to funds for facilities or operation of corporations or individuals), charges, and other benefits prescribed by the Presidential Decree that are granted without receiving any corresponding consideration, that are granted by a person other than the State to create or provide financial assistance in affairs or projects conducted by such person.” Article 2 Subparag. 2 of the Subsidy Act provides, “Indirect subsidies refers to benefits that a person other than the State grants without receiving any corresponding consideration, in whole or in part, from the financial resources of the subsidies.”

In full view of the purport of the argument in Gap evidence No. 1, the Minister of Knowledge Economy (former Minister of Trade, Industry and Energy) decided to grant Ma New York subsidies to Jeju Special Self-Governing Province in accordance with the "Standards for State's Financial Support to attract local investment enterprises of local governments", and Jeju Special Self-Governing Province is recognized to have paid national and local expenses that were received according to the above decision based on the "Ordinance on the Management of Jeju Special Self-Governing Province Subsidies" as the subsidies for the Jeju Special Self-Governing Province as the subsidies that the State received. Accordingly, Jeju Special Self-Governing Province granted the Jeju Special Self-Governing Province as part of its financial resources, and it can be deemed that the portion of the National Treasury subsidies in the Jeju Special Self-Governing Province prior to the Jeju Special Self-Govern

In addition, when comprehensively considering the purport of the entire arguments in the statements in Gap evidence Nos. 5 and 12, the Ministry of Employment and Labor determines "workplace child care center support" as one of the government subsidy projects, and the Korea Workers' Compensation and Welfare Service recognizes the fact that it has paid the child care center creation subsidy in Ma Newel as the entrusted agency of the Ministry of Employment and Labor pursuant to the "Regulation on the Installation and Operation of Facilities for Promotion of Women Employment". Accordingly, the subsidies for the creation of child care centers in this case

B. Whether the claim to return the subsidy of this case constitutes estate claims

According to the Debtor Rehabilitation and Bankruptcy Act, any bankruptcy claim shall not be exercised without resorting to bankruptcy procedures and shall be distributed equally to other creditors. On the other hand, any estate claim may be repaid from time to time without resorting to bankruptcy procedures and may be repaid in preference to any bankruptcy claim.

As such, since bankruptcy claims and estate claims are different in the status recognized in bankruptcy proceedings, and the impact of which claims on interested parties, such as creditors and shareholders, is significant, bankruptcy claims and estate claims should be distinguished in accordance with objective and clear standards, and the scope of estate claims should be clearly prescribed by law.

Accordingly, Article 473 of the Debtor Rehabilitation and Bankruptcy Act provides for general estate claims and special estate claims under other provisions. Article 473 subparagraph 2 of the same Act provides that "a claim that can be collected pursuant to the National Tax Collection Act or the Framework Act on Local Taxes (including a claim that can be collected according to the example of collecting a national tax and its collection priority takes precedence over general bankruptcy claims, but excluding subordinate bankruptcy claims provided for in Article 446)."

Meanwhile, Article 33 of the Subsidy Act, which was amended by Act No. 13931, Jan. 28, 2016, provides that where a subsidy should be returned due to the revocation of the decision to grant a subsidy, the relevant subsidy may be collected in accordance with the example of the collection of national taxes, and the collection of refunds shall take precedence over other public charges except national taxes and local taxes. According to the foregoing provision, a claim for the return of a subsidy under the relevant provisions of the Subsidy Act prior to the amendment, which is a claim that can be collected in the same manner as the collection of national taxes, takes precedence over other public charges except national taxes and local taxes, but it is unclear that the priority of collection takes precedence over the general claims under the language and text, and further interpretation cannot be permitted beyond the ordinary meaning of the language

However, Article 473 Subparag. 2 of the Debtor Rehabilitation Act explicitly provides that, among claims that can be collected according to the example of collecting a national tax, only those having priority over general bankruptcy claims shall constitute estate claims. As such, insofar as the claims to return a subsidy under the Subsidy Act prior to the amendment cannot be deemed to have priority over general claims in collection priority, even if considering the public nature of claims to return a subsidy, the claims to return a subsidy shall not constitute estate claims under Article 473 Subparag. 2 of the Debtor Rehabilitation Act.

Article 33-3 of the Subsidy Act, amended by Act No. 13931, Jan. 28, 2016, newly established Article 33-3, which provides for the compulsory collection of subsidies under Article 33 prior to the amendment. Article 33-2 of the same Act provides that “The collection of subsidies shall take precedence over other public charges or other claims, except national taxes and local taxes,” thereby amending the priority order of collection by stipulating that “the collection of subsidies shall take precedence over other public charges or other claims, except for national taxes and local taxes.” However, such amendment aims to supplement the deficiencies of the previous provisions, but it cannot be said that it is intended to confirm that it takes precedence over general claims under the previous provisions.

Therefore, the claim for the refund of the subsidy of this case subject to the Act before the amendment cannot be deemed as an estate claim for the above reasons.

4. Conclusion

The plaintiff's claim of this case based on the premise that the claim to return the subsidy of this case constitutes estate claims is without merit, and it is dismissed. It is so decided as per Disposition.

Judges already (Presiding Judge) Obaghney