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(영문) 대법원 2014. 9. 4. 선고 2013다29448 판결
[손해배상등][공2014하,1999]
Main Issues

In cases where a rehabilitation claim is forfeited due to the failure to take measures to protect the rights of the rehabilitation creditor, even though the rehabilitation creditor was aware of the rehabilitation claim's knowledge of the existence of the rehabilitation claim or the fact that such rehabilitation claim is alleged, or could have been easily known, but failed to enter the rehabilitation claim in the list of the rehabilitation creditors, whether tort liability by the custodian is established (negative)

Summary of Judgment

In light of the purport of Article 147 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”), in order to prevent any rehabilitation creditor from suffering disadvantages arising from the forfeiture of his/her claim due to his/her failure to report his/her claim due to the lack of knowledge of rehabilitation procedures, the custodian is obligated to enter the same in the list of rehabilitation creditors, unless there is an objective exceptional case where the absence of a rehabilitation claim is objectively evident.

However, in principle, any rehabilitation creditor who intends to participate in rehabilitation procedures shall report the details and causes of the rehabilitation claim to the court within the reporting period (Article 148(1) of the Debtor Rehabilitation Act); however, if any rehabilitation creditor fails to report within the reporting period due to any cause not attributable to him/her, he/she may supplement such report within one month after the date on which such cause ceases to exist (Article 152(1) of the Debtor Rehabilitation Act). In cases where any rehabilitation creditor fails to know the rehabilitation procedures as to the commencement of the rehabilitation procedure and the reporting period of the rehabilitation claim, etc. in the rehabilitation procedure, and the rehabilitation creditor fails to report his/her claim until the assembly of related persons ends because he/she was unable to know of the existence of the rehabilitation claim and the reporting period of the rehabilitation claim, etc., and where any custodian knowss the existence of the rehabilitation claim or fails to record such rehabilitation claim in the list of rehabilitation creditors even if he/she did not know of the existence of the rehabilitation claim and his/her forfeited claim and fails to take measures to protect the rights of the rehabilitation creditor through the rehabilitation procedure.

[Reference Provisions]

Articles 147, 148(1), 152(1) and (3), and 251 of the Debtor Rehabilitation and Bankruptcy Act; Article 750 of the Civil Act

Reference Cases

Supreme Court Order 2011Da256 Decided February 13, 2012

Plaintiff-Appellant

Korea Land Trust Co., Ltd. (Law Firm current, Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

The administrator of Dong-dong Housing Co., Ltd. (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

Judgment of the lower court

Seoul High Court Decision 2012Na73778 decided March 15, 2013

Text

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

Reasons

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Rehabilitation claims under Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act refer to any property claim arising from the cause of the occurrence of claims, such as declaration of intention, before the commencement of rehabilitation procedures. As long as the cause of the occurrence of claims is based on the cause prior to the commencement of rehabilitation procedures, it is not specific or even if the cause of the occurrence of claims arrives after the commencement of rehabilitation procedures (see Supreme Court Decision 2012Da114851, May 16, 2014, etc.).

Meanwhile, the right to claim damages in lieu of the defect repair under Article 667(2) of the Civil Act exists concurrently with the right to claim remuneration, and is generally established at the time of actual loss by social norms. Thus, the right to claim damages in lieu of the defect repair is established at the time of the occurrence of the defect and the need for remuneration (see Supreme Court Decision 9Da55632 delivered on March 10, 200).

B. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning, and determined that the Plaintiff’s right to claim damages in lieu of the defect repair was forfeited pursuant to Article 251 of the Debtor Rehabilitation Act, and cannot be forced to implement the said right, on the ground that the instant apartment is subject to a claim for damages in lieu of the defect repair, since the Plaintiff’s right to claim damages in lieu of the defect repair occurred as alleged by the Plaintiff prior to the commencement of the rehabilitation procedure for the large comprehensive construction (hereinafter “large comprehensive construction”), and since the rehabilitation plan was approved in the state that the Plaintiff did not report it as a rehabilitation claim in the rehabilitation procedure for the large comprehensive construction, and that the claim was not stated in the list of rehabilitation creditors.

In light of the above legal principles and records, the above fact-finding and determination by the court below are just and acceptable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the timing of establishment of

2. Regarding ground of appeal No. 2

A. In light of the purport of the system of the list of rehabilitation creditors under Article 147 of the Debtor Rehabilitation Act to prevent rehabilitation creditors from suffering disadvantages by failing to report their own claims due to the lack of knowledge of rehabilitation procedures, in light of the purport of the system of the list of rehabilitation creditors under Article 147 of the Debtor Rehabilitation Act, a custodian is obligated to enter the same in the list of rehabilitation creditors unless the absence of rehabilitation claims is objectively evident exceptional (see Supreme Court Order 201Da256, Feb. 13, 2012)

However, any rehabilitation creditor who intends to participate in rehabilitation procedures, in principle, shall report the details and causes of the rehabilitation claim to the court within the reporting period (Article 148(1) of the Debtor Rehabilitation Act); however, if any rehabilitation creditor fails to report within the reporting period due to any cause not attributable to him/her, he/she may supplement such report within one month after such cause ceases to exist (Article 152(1) of the Debtor Rehabilitation Act). In cases where any rehabilitation creditor fails to know the rehabilitation procedures due to his/her failure to obtain individual notice of the commencement of the rehabilitation procedures and the reporting period of the rehabilitation claims, etc. in the rehabilitation procedures, the rehabilitation creditor is unable to report his/her claim until the assembly of related persons ends. Furthermore, if the custodian knows the existence of the rehabilitation claim or his/her claim is asserted, or fails to record such claim in the list of rehabilitation creditors, notwithstanding Article 152(3) of the Debtor Rehabilitation Act, even if the custodian fails to report the rehabilitation claims within one month after the date on which he/she becomes aware of the rehabilitation procedures after the assembly meeting for examination of the rehabilitation plan is held.

B. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff cannot be held liable for damages against the Defendant, on the ground that the Plaintiff’s claim for damages in lieu of the Plaintiff’s defect repair, was no longer forfeited, regardless of the fact that the custodian of the same comprehensive construction, who is a rehabilitation claim, did not enter the claim in the list of rehabilitation creditors, because the Plaintiff knew of the fact that the assembly of related persons for the examination of the rehabilitation plan was in progress on January 4, 2010, which was before the assembly of related persons for the examination of the rehabilitation plan, and did not report it as a rehabilitation claim.

Examining the record in light of the aforementioned legal principles, the judgment of the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles on tort liability due to a custodian’s neglect to submit a list of rehabilitation creditors.

3. Conclusion

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 on the bench.

Justices Park Poe-young (Presiding Justice)

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심급 사건
-서울중앙지방법원 2012.8.23.선고 2012가합11063
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