Medical Corporations, White Medical Foundation (Law Firm Law, Attorneys Park Jong-sik et al., Counsel for the defendant-appellant)

Draft Co., Ltd

Won Buddhist Corporation, an incorporated foundation

The motion of this case is dismissed.

With respect to the case of a provisional disposition prohibiting the collection and disposal of claims under this Court 2015Kadan201299, the rejection of the application for provisional disposition made by Nonparty 1 on July 17, 2015 shall be revoked by the court chief clerk, chief clerk, and vice versa. The court chief clerk, etc. will cancel the execution of the provisional disposition.

1. Facts of recognition;

The following facts may be recognized by the records of this case, or are significant in this court:

A. On December 27, 2013, the respondent entered into a contract with the applicant for the construction of the instant building (hereinafter “instant construction”) on a lot of land outside of ○○○○ Hospital Affiliated (hereinafter “instant building”) (hereinafter “instant construction”). On February 27, 2015, the respondent completed the instant construction around the end of February.

B. Around February 9, 2015, the applicant entered into a lease agreement with the third obligor to lease the instant funeral hall.

C. On February 25, 2015, Nonparty 2 and Nonparty 3’s representative director of the applicant Nonparty 2 and the respondent decided to settle the instant construction cost in the following manner.

1) On March 13, 2015, payment of KRW 200,00,00, out of loans granted as security for the instant building.

2) Payment of KRW 500,000,000 to the lessee’s intermediate payment of the instant funeral hall on March 13, 2015

3) Payment of the remainder of lessees of the funeral hall of this case on March 31, 2015

4) The applicant shall prepare a notice of assignment of claims to the lessee of the funeral hall of this case for KRW 1.1 billion of the unpaid construction cost and deliver it to the respondent.

D. On May 13, 2015, the applicant filed an application for commencement of rehabilitation proceedings with this Court No. 2015 Ma10015, and this Court, on May 19, 2015, applied Article 45(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), and issued a comprehensive prohibition order with respect to all rehabilitation creditors and rehabilitation secured creditors, prohibiting compulsory execution, provisional seizure, provisional disposition, or auction procedure for exercising the right to collateral (hereinafter “instant comprehensive prohibition order”), and the said order was served on the applicant on the 21st of the same month.

E. On May 22, 2015, the respondent filed a provisional disposition prohibiting the collection and disposal of claims against the applicant on the ground that the applicant did not notify the transfer of claims in spite of having concluded a contract on the transfer of claims on or before February 25, 2015, the respondent filed a provisional disposition prohibiting the collection and disposal of claims against the third party debtor (hereinafter “the provisional disposition order of this case”) on the ground that the applicant’s third party debtor was entitled to preserve the “right to claim the notification of the transfer of claims” on the ground that he/she did not perform the notification of the transfer of claims. The respondent filed a provisional disposition prohibiting the collection of claims against the third party debtor on June 22, 2015 (hereinafter “the provisional disposition order of this case”).

F. On June 30, 2015, the applicant filed an application for the cancellation of the instant provisional disposition by asserting that the right to be preserved for the instant provisional disposition falls under a rehabilitation claim under Article 118 subparag. 1 of the Debtor Rehabilitation Act, and that the instant provisional disposition is null and void in violation of the comprehensive prohibition order. However, on July 17, 2015, the court chief clerk, chief clerk, chief clerk, and Nonparty 1 filed a notification of non-acceptance of the applicant’s application for the cancellation of provisional disposition (hereinafter “non-acceptance disposition of this case”) on the ground that “the right to be preserved for the instant provisional disposition is insufficient to prove that the right to be preserved for the rehabilitation claim under Article 118 subparag. 1 of the Debtor Rehabilitation Act is a rehabilitation claim”

2. The assertion and judgment

The applicant asserts that the right to the provisional disposition of this case constitutes rehabilitation claims under Article 118 subparag. 1 of the Debtor Rehabilitation Act, and that the provisional disposition of this case is null and void since the provisional disposition of this case was issued in violation of the general prohibition order of this case, the non-acceptance disposition of this case should be revoked.

However, Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act provides for "the debtor as a rehabilitation claim" that has arisen from the cause before the commencement of rehabilitation procedures. Since the right to claim under the above provision does not take the principle of monetaryization and presentization with respect to the debtor, so long as it is a property claim, it is not limited to a monetary claim, and it is also subject to non-financial claims such as contractual benefit claim (Supreme Court Decision 89Meu4113 delivered on April 11, 1989). However, at least, it should be a claim that can be evaluated as a monetary claim by using the debtor's security value or value of the debtor's property.

In light of the above legal principles, the right to be preserved for the provisional disposition of this case is the right to claim for "the notification of the fact of the transfer of claims" corresponding to the notification of concept to the applicant following the conclusion of the assignment of claims between the applicant asserted by the respondent. This cannot be deemed a rehabilitation claim because it is difficult to view that the applicant's right to be preserved for the provisional disposition of this case falls under the rehabilitation claim by using the applicant's property security value or use value as a claim that can be evaluated in money. Therefore, the applicant's above assertion on the premise that the right to be preserved for the provisional disposition

3. Conclusion

Therefore, the application of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-hoon