[1] In a case where a lawsuit regarding a reorganization claim is pending, whether filing a lawsuit seeking confirmation of a reorganization claim without filing a request for resumption of a lawsuit for confirmation of a reorganization claim is legitimate (negative)

[2] The case holding that where a lawsuit for confirmation of a reorganization claim is filed without a request for resumption of a lawsuit for confirmation of a reorganization claim and the previous lawsuit subject to takeover is withdrawn, it is impossible to file a lawsuit for confirmation of a new reorganization claim if the period of time expires after the period for filing a lawsuit for confirmation of a reorganization claim, and that the defect of a lawsuit for confirmation of a new reorganization claim is not cured due to the withdrawal of the above lawsuit and it is not legitimate retroactively

[1] In a case where a lawsuit against a reorganization claim is pending, the requirement to take over a lawsuit pending under Article 149 of the Company Reorganization Act is for the public interest purpose of preventing expenses and time waste incurred by the filing of a new lawsuit and avoiding the spread of the litigation procedures. On the other hand, the lawsuit under Article 147 of the same Act is for the exclusive jurisdiction of the court of reorganization, and the request for taking over a lawsuit under Article 149 of the same Act is different in the litigation procedures, such as the filing of a lawsuit for confirmation of a reorganization claim under Article 147 of the same Act is unlawful because there is no benefit of protection of rights.

[2] The case holding that where a lawsuit for confirmation of a reorganization claim is filed without a request for resumption of a lawsuit for confirmation of a reorganization claim and the previous lawsuit subject to takeover is withdrawn, it is impossible to file a lawsuit for confirmation of a new reorganization claim if the time has passed after the deadline for filing a lawsuit for confirmation of a reorganization claim, and that the defect of a lawsuit for confirmation of a new reorganization claim is not cured due to the withdrawal of the above lawsuit, and that it is not legitimate retroactively

[1] Articles 147 and 149 of the Company Reorganization Act / [2] Articles 147 and 149 of the Company Reorganization Act

[1] Supreme Court Decision 91Da22698, 22704 decided Dec. 24, 1991 (Gong1992, 673), Supreme Court Decision 97Da17155 decided Aug. 22, 1997 (Gong1997Ha, 2803), Supreme Court Decision 9Da52312 decided Feb. 11, 2000 (Gong200Sang, 679)

Plaintiff (Attorney Kim Jong-il, Counsel for the plaintiff-appellant)

Dadong Construction Company, Inc.

Seoul High Court Decision 2000Na7440 delivered on March 13, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Where an objection is raised by a reorganization company administrator, etc. with regard to a reorganization claim reported within the prescribed period due to a decision on commencing a company reorganization procedure under the Company Reorganization Act, a person holding a right to such reorganization claim shall file a lawsuit for confirmation of such reorganization claim against an objection pursuant to Article 147 of the Company Reorganization Act (hereinafter referred to as the “Act”), but where a lawsuit regarding such reorganization claim is pending at the time of commencement of the company, a reorganization creditor who has filed a report with the competent court, but raises an objection to the confirmation of a right at the investigation date, shall file a request for confirmation against an objection to the reorganization claim reported at the court where the previous lawsuit is pending under Article 149 of the Act within one month from the date of investigation of the right. In addition, where a lawsuit against a reorganization claim is pending, a request for continuation shall be made within one month from the date of investigation of the right, and the public interest purpose is to prevent the expenses and time expenditure of the lawsuit, and the lawsuit under Article 147 of the Act is unlawful, and the lawsuit under Article 1497 of the Act shall be dismissed.

2. According to the reasoning of the judgment of the court below, the plaintiff filed a lawsuit claiming damages on December 7, 1997 with the defendant on the same cause as the lawsuit of this case (hereinafter referred to as "former lawsuit") under the Taedong Construction Co., Ltd. (hereinafter referred to as "Yandong Construction") which had been filed on December 7, 1997, the Daegu District Court rendered a decision to commence corporate reorganization proceedings on July 6, 1998 during which the lawsuit was pending. The plaintiff filed a claim for damages as a reorganization claim on December 9, 1998. The plaintiff filed an objection against the defendant, who is an objection to the previous lawsuit, on December 14, 1998. However, the case name was finalized on January 8, 199, and the cause of the claim was the same as that of the previous lawsuit, and the plaintiff could not be seen as having filed a lawsuit seeking the performance of the previous reorganization claim under Article 149 of the Act within the period of 194 months after the previous lawsuit was withdrawn.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the benefit of protection of rights in a lawsuit for confirmation of reorganization claim, or in failing to exercise the right of explanation.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)