In cases where certain claims are confirmed as rehabilitation security rights in a lawsuit filed for objection to the final claim inspection judgment or the final claim inspection judgment, whether there is any benefit to confirm the same claims as rehabilitation claims (negative)

Any property claim against any person other than the debtor arising from a rehabilitation claim or a cause arising prior to the commencement of rehabilitation procedures, the scope of which is secured as a lien, pledge, mortgage, security right for transfer, provisional registration right, security right, lease on a deposit basis, or preferential right under the Act on Security over Movable Property, Claims, Etc., existing on the debtor’s property at the time rehabilitation procedures commence, refers to a rehabilitation security right (Article 141(1) of the Debtor Rehabilitation and Bankruptcy Act). Since rehabilitation security right refers to a claim within the scope of secured by a security right, such as a lien, out of the rehabilitation claim, the scope of which is secured by a security right, such as a lien, etc.,

Articles 141(1), 170, and 171 of the Debtor Rehabilitation and Bankruptcy Act

DS Construction Co., Ltd. (Law Firm Hannuri, Attorneys Yang Jin-young et al., Counsel for the plaintiff-appellant)

The non-party (Law Firm Edielel, Attorneys Yang Chang-ro et al., Counsel for the plaintiff-appellant) in the law of international development of the rehabilitation debtor, which is the taking over of international development.

Seoul High Court Decision 2018Na2013804, 2013811 decided December 6, 2018

The judgment of the court below is reversed and the case is remanded to the Seoul High Court. The plaintiff's request for continuation of proceedings is dismissed.

The grounds of appeal are examined.

1. As to the third ground for appeal

A. Any property claim against any person other than the debtor arising from a rehabilitation claim or a cause other than the rehabilitation procedure before the commencement of the rehabilitation procedure, the scope of which is secured by any lien, pledge, mortgage, security right for transfer by means of security, provisional registration right, security right under the Act on Security over Movable Property, Claims, Etc., or preferential right, which exists on the debtor’s property at the time of the commencement of the rehabilitation procedure, shall be a rehabilitation security right (Article 141(1) of the Debtor Rehabilitation and Bankruptcy Act). Since rehabilitation security right refers to a claim that is secured by any security right, such as a lien, out of the rehabilitation claim, the scope of which is secured by such security right, such as a lien, etc.

B. The record of this case reveals the following facts.

(1) In the first instance trial, the Plaintiff filed a joint claim for the payment of the construction cost with the Defendant and the claim for confirmation of lien with the claim for the payment of the construction cost as the secured claim. On January 31, 2018, the first instance court rendered a judgment dismissing the claim for confirmation of lien by partially accepting the claim for construction cost and dismissing the claim for confirmation of lien.

(2) Both the Plaintiff and the international development appealed, and the decision was rendered on August 19, 2018, when the appellate court had been pending, on which the decision was rendered to commence the rehabilitation procedure for international development. However, the Nonparty, the representative director of the international development, was deemed a legal administrator (Seoul Rehabilitation Court 2018 Ma10093, hereinafter “instant rehabilitation procedure”). In the instant rehabilitation procedure, the Plaintiff submitted a report on the rehabilitation claim and the right to retention claimed in the instant lawsuit on September 5, 2018, and only the administrator of the international development raised an objection against the claims reported by the Plaintiff.

(3) Accordingly, the Plaintiff changed the claim for the construction cost to the effect that “the Plaintiff’s claim for the international development of the debtor is the amount calculated at the rate of 15% per annum from April 21, 2015 to the date of full payment,” and that “the Plaintiff’s claim for the lien confirmation is the amount calculated at the rate of 945,896,320 won per annum from April 21, 2015 to the date of full payment.” The Plaintiff changed the claim for the lien confirmation to the effect that “the Plaintiff has a lien on the international development of the debtor debtor as the secured claim of KRW 1,174,00,00

(4) The lower court ruled that “The Plaintiff’s claim for confirmation of a rehabilitation claim for international development of the Plaintiff’s rehabilitation debtor is the amount calculated at the rate of 5% per annum from April 21, 2015 to the date of full payment,” with respect to the claim for confirmation of a right of retention, which is revised as above, and ruled that “The Plaintiff’s rehabilitation claim for international development of the Plaintiff’s rehabilitation debtor is the amount calculated at the rate of 945,896,320 won per annum from April 21, 2015 to the date of full payment,” and that “The Plaintiff’s rehabilitation right for the Plaintiff’s rehabilitation debtor’s international development based on the right of retention as stated in the table 1 to

(5) The rehabilitation security right’s KRW 1,103,070,598 cited by the lower court as above plus KRW 157,174,278 per annum, calculated by applying the rate of 5% per annum as prescribed by the Civil Act from April 21, 2015 to August 16, 2018, which is the day before the commencement of the rehabilitation procedure, from April 21, 2015.

C. We examine the above facts in light of the legal principles as seen earlier. KRW 1,103,070,598, which was confirmed as a rehabilitation security right, is the amount calculated by adding part of the principal amount to KRW 945,896,320 among the construction cost claims confirmed as a rehabilitation security right, and the damages for delay thereof. The lower court also confirmed as a rehabilitation claim at the same time a part of the Plaintiff’s construction cost claim as a rehabilitation security right. However, there is no benefit to confirm certain claim as a rehabilitation claim when it is confirmed as a rehabilitation security right, and therefore, the lower court erred by misapprehending the legal principles as to the final claim inspection judgment (the part which recognized a rehabilitation claim overlapping with a rehabilitation security right) and by misapprehending the legal principles as to the final claim inspection judgment

D. Meanwhile, there is no error as seen earlier in the part of the lower court’s confirmation of the rehabilitation claim within the scope not overlapping with the part of the rehabilitation security right and the rehabilitation security right. However, the instant case was abolished during the course of the final appeal, and it is necessary for the lower court to conduct a review after having the Plaintiff claim for ordinary payment and change the claim into the claim for confirmation of the right of retention at the lower court after remanding the case.

2. As to the remaining grounds of appeal

For the reasons indicated in its holding, the lower court determined that the Plaintiff’s claim for the construction cost as to the completed portion of the instant construction project had arrived at due date, and further acknowledged that the Plaintiff occupied the instant building by de facto controlling it. Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the right of defense and lien, contrary to what is alleged in the grounds of appeal.

3. As to the plaintiff's request for taking over litigation procedures

According to the records, the facts revealed that the rehabilitation procedures of this case were abolished on June 5, 2019, which was not timely filed, after the lapse of the time limit for filing the appellate brief. However, the Plaintiff’s application for taking over the proceedings of the court of final appeal is rejected, as there is no need to allow the takeover of the proceedings (see, e.g., Supreme Court Decisions 2012Da6349, Jul. 11, 2013; 2013Da69866, Jul. 9, 2015).

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's request for continuation of proceedings is dismissed, and the cost of request for continuation of proceedings is borne by the plaintiff. It is so decided as

Justices Park Jung-hwa (Presiding Justice)