Plaintiff Reorganization Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Kim Ho-hoon et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Pacific, Attorneys Park Jong-hwan et al., Counsel for the defendant-appellant)

June 30, 2004

Incheon District Court Decision 2002Gahap1051 Delivered on August 22, 2003

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 1,64,043,779 won and 967,468,439 won among them, 91,643,835 won from March 4, 1998; 203,835 won from March 13, 1998; 203,835,616 won from April 13, 1998; 197,260,273 won from May 13, 1998; 203,835,616 won from June 13, 1998 to the date of service of the copy of each complaint of this case; 6% per annum from the next day to the date of full payment; and 25% per annum from the next day to the date of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim concerning the above revocation shall be dismissed.

1. Basic facts

A. On October 13, 1994, the Defendant guaranteed the payment guarantee period of 10 billion won for the corporate bond redemption debt of Kelk Co., Ltd. (merged Emb., Ltd., which was merged with Lik Emb Co., Ltd., on November 1, 1996) until October 19, 197.

B. Li-electronic Co., Ltd. (hereinafter “Ti-electronic”) was changed to Ei-Lone Corporation on January 1, 2001, and due to the growth-oriented business and the delay in restructuring focused on external loans, etc., it became impossible to redeem the above corporate bonds due to the occurrence of serious liquidity shortage arising from the latter half of 197. Accordingly, the Defendant repaid 10 billion won of the above corporate bonds on October 20, 1997 under the payment guarantee contract, on behalf of an E-Li-electronic on October 30, 1997. The Defendant received from an E-Li-electronic company on October 30, 1997 a statement of the number of shares per 10 billion won per face value and a statement of the number of shares per 26,027,397 per share.

C. Since the aggravation of financial standing, due to the aggravation of financial standing, an application was filed with the Incheon District Court for the commencement of the company reorganization proceedings on November 1, 1997, the following day after the issuance of each unit of shares was issued to the Defendant. The Seoul Bill Exchange Center on November 3, 1997, and the Incheon Bill Exchange Center on November 6, 1997. The Defendant issued a disposition of suspension of check account transactions from the payment of two copies of the unit of shares issued by an electronic company on November 4, 1997, which were issued by an electronic company due to the aggravation of financial standing, but the electronic representative director neglected to pay was accused of violating the Illegal Check Control Act.

D. Since then, neglected electronics, at the end of consultation with creditor financial institutions and creditor financial institutions, the due date is postponed from the due date, and the company’s rehabilitation is promoted through corporate restructuring operations such as receiving additional funds from the due date. On November 29, 1997, the application for the commencement of the above company’s reorganization proceedings was withdrawn.

E. On March 4, 1998, the defendant submitted to the Seocho Police Station a letter of confirmation that the representative director of the neglected electronic company, who is the issuer of the above statement of the number of units, is not subject to punishment, and the defendant agreed that the above claim for reimbursement shall be paid in installments every month within 1998.

F. A failure to pay to the Defendant the sum of KRW 1,64,07,468,439 on March 4, 1998, as agreed upon under the above agreement, KRW 91,643,835 on March 13, 1998, KRW 203,835,616 on April 13, 1998, KRW 197,260,273 on May 13, 1998, KRW 203,835,616 on June 13, 1998, and KRW 1,64,043,779 on June 13, 1998.

G. However, even after the withdrawal of the application for commencement of the above company's reorganization proceedings, any e-mail which fails to reach an agreement on the direction of processing neglected electronic documents was selected by the Financial Supervisory Commission and creditor financial institutions on June 18, 1998 as an enterprise subject to withdrawal from the Financial Supervisory Commission and creditor financial institutions. After that, even though the Financial Supervisory Service's request for arbitration was made to the Corporate Restructuring Committee under the jurisdiction of the Financial Supervisory Service, it decided to follow the determination of the above committee's mediation, and the above committee's request for mediation was made to seek legal measures in accordance with the mediation opinion of the committee. Ultimately, the e-mail applied for the commencement of the company again to the Incheon District Court on November 30, 199, and the above court decided to commence the reorganization proceedings for neglected electronic documents on February 10, 200. On the other hand, there was no cancellation of the order for commencement of the company reorganization proceedings until February 10, 200 after the suspension of current account transactions.

H. The above suspension of current account transactions by the negligent electronic company, the process of consultation between the neglected electronic company and the creditor financial institution, and the failure of consultation between the creditor financial institution, etc. were reported through the central daily newspaper, broadcasting, etc. around that time.

[Ground for Recognition: Facts without dispute, Gap evidence 2 through 8 (including paper numbers), Eul evidence 1 and 2, and the whole purport of oral argument]

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the failure to pay the indemnity amount to the defendant among the reorganization creditors constitutes a biased act detrimental to other reorganization creditors, and that the payment is made with the knowledge of such fact, which constitutes a neglect electronic act at the time, and thus constitutes "an act of knowing that the company would prejudice the reorganization creditors" under Article 78 (1) 1 of the Company Reorganization Act. The plaintiff asserts that the plaintiff denies the above repayment act against the defendant pursuant to the above provision and sought the payment of the repayment amount of KRW 1,664,043,779 and damages for delay.

B. Determination

(i)Determination as to the existence of fraudulent act of neglect and of intent to commit suicide;

Article 78 (1) 1 of the Company Reorganization Act provides that "an act that a company knows that it would prejudice any reorganization creditor, etc." may be denied, and that a company shall meet the general requirements of "a fraudulent act" and "a company shall have intention to know" in order to exercise the avoidance power under the above provision. The fraudulent act is interpreted not only as absolute reduction of company's general property, but also as a simple repayment act contrary to the fairness with other reorganization creditors. The company's intention is recognized when the company conducts an act that is subject to avoidance, and it is recognized that there is a perception that the company's joint security property for the reorganization creditor reduces the liability property for the reorganization creditor or causes unfair treatment among reorganization creditors.

On the other hand, as to whether the repayment of this case constitutes a fraudulent act by neglect, and whether there was intention at the time of neglect, health care must be faced with serious liquidity shortage in the latter half of 197, and due to failure to repay ten billion won corporate bonds with the maturity of October 19, 1997, the Defendant repaid this case on behalf of the Defendant, and the neglect to pay was ordered to commence corporate reorganization proceedings on November 1, 1997, and the suspension was imposed three times in Seoul Bills Exchange, etc., and the suspension was not cancelled on November 3 through 6, 1997, and the representative director of the electronic institution was accused of violation of the Illegal Check Control Act due to such suspension of current account transactions, and at the same time, failed to pay back to the Defendant after the suspension of payment due to the failure to pay punishment for the representative director and the failure to pay back to the Defendant, and at the same time, continued to exist in the current account transaction account transaction by the Defendant after the suspension of payment due to the failure to pay back to the Plaintiff.

In light of the above circumstances, despite the fact that the failure to pay the obligation to the reorganization creditors whose financial status has been significantly deteriorated to the extent that they will be selected as the company subject to retirement after the suspension of current account transaction, and the suspension of payment could not be made continuously and continuously due to lack of financial capacity, the repayment of the obligation to the defendant who is a specific creditor in order to receive the declaration of non-performance of punishment against the representative director is deemed to have been repaid to the defendant. Therefore, the repayment of the instant case constitutes a fraudulent act as a consequence of the loss to other reorganization creditors, and the intention of harming the neglected electronic system can

It is difficult to acknowledge that the Defendant had neglected to pay the principal and interest to the other creditor financial institutions other than the Plaintiff’s 10.1,000 won, and thus, the Defendant’s failure to pay the principal and interest to the Defendant 2 9.1,000 won to the Defendant’s total 9.1,000 won to the Defendant’s total 9.1,000 won to the Defendant’s 9.2,000 won to the Defendant’s total amount to be paid, 19,000 won to the Defendant’s total amount to the Defendant 2,000,000 won to the Defendant’s 9.2,000,000 won to the Defendant’s total amount to the Defendant’s 9,000,000 won to the Defendant’s total amount to be paid to the Defendant 1,000,000 won to the Defendant’s 19,0000 won to the Defendant’s total amount to be paid to the Defendant 2,196.1,06.3

(1) The Defendant’s failure to pay the principal of the corporate bond paid by the Plaintiff on behalf of the Plaintiff due to the failure to pay the principal of the corporate bond or interest in arrears. Since the Plaintiff neglected to pay the interest or interest in arrears to the security holders immediately before the commencement order of the company reorganization procedure after the measure of current account transaction was taken, the act of payment in this case is not a fraudulent act. However, it is insufficient to recognize that the entry of the evidence No. 11 alone does not constitute a fraudulent act, but it is insufficient to accept the above assertion as well as there is no other evidence to acknowledge that the failure to pay the interest or interest in arrears to the security holders immediately before the order

【Judgment on the Defendant’s argument of lack of illegality】

In light of the various circumstances at the time, the defendant asserted that the act of repayment in this case was one of the self-help efforts to normalize the neglected electronic system, and it did not specifically have been intended to pay the defendant only and harm other reorganization creditors, and thus, the act of repayment in this case lacks illegality.

Even if the act subject to avoidance under the Company Reorganization Act is harmful to the reorganization creditor, there may be cases where it is recognized that the act was socially necessary, reasonable, or inevitable, depending on individual and specific circumstances at the time of the act. In such a case, it shall not be subject to the exercise of the avoidance power. In addition, whether the act subject to avoidance lacks illegality should be determined in light of the principle of good faith and the ideology of fairness, based on the following factors: (a) the source of the repayment fund; (b) the relationship between the company and the creditor; and (c) whether the creditor in collusion with the company or forced the company to make the repayment.

The defendant asserted that the repayment of this case was improper since the financial business support resolution for the company's neglect of duty was adopted as part of the self-help efforts to normalize the company. However, in full view of the statement of Eul 21 and the evidence employed earlier, the defendant presented two copies of the check issued by his neglect of duty to pay and refused payment on November 4, 1997, and there was a need for the defendant, who is the check holder, to be exempted from criminal punishment for the representative director when promising the payment of this case on March 4, 1998, and thus, the defendant requested the defendant to be exempted from criminal punishment for the representative director when the promise of this case was made, and the defendant also made efforts by the representative director of his neglect of duty to pay part of the amount of arrears until the time of the defendant's repayment is beyond physical restraint, or it is difficult to accept the defendant's request after consultation with the representative director of this case's neglect of duty to receive criminal punishment for the purpose of receiving payment of this case. Thus, it is difficult to find the above other motive and purpose of collecting electronic payment of this case.

【Judgment on whether the Defendant was aware of the fraudulent act

The Defendant asserts that, at the time of repayment in this case, he could not know about detailed claims, such as the identity of a creditor of an obligor of neglect electronic, and the amount of debts at the time of payment in his neglect electronic, and that he withdrawn the application for commencement of reorganization proceedings on November 1, 1997, but the application for commencement of rehabilitation proceedings was withdrawn only once a month, and that measures such as additional financial support to a neglect electronic group to which he belongs through newspaper articles were reported, and that he continued transactions with an existing customer, etc. even after the suspension of current account transactions was imposed, the Defendant did not know that at the time of payment in this case, the Defendant

In light of the aforementioned facts, the Defendant had been sufficiently aware of the fact that the neglect of payment was under suspension of payment at the time of receiving the instant reimbursement as seen above, and comprehensively taking account of the entire purport of pleadings set forth in Gap evidence No. 8 (including serial numbers), major affiliates of the neglected electronic group before and after November 4, 1997, following the due process such as filing an application for reimbursement, filing an application for commencement of company reorganization proceedings, etc. due to aggravation of financial standing, and withdrawing the application for commencement of reorganization proceedings from the creditor financial institutions. The creditors of the neglected group and the banks of the neglected group were not aware of the fact that the application for suspension of payment was under suspension of payment at the time of receiving the pertinent self-help plan after November 6, 1997, and that the application for suspension of payment was under suspension of payment due to the failure of payment to meet the requirements for implementation of the adequate self-help plan, the Defendant continued to be able to have been aware of other reasons such as failure to meet the requirements for redemption of loans to the neglected group by the end of 198 years.

(4) The defendant asserts that on February 9, 2002, the plaintiff exercised the right to set aside against the defendant on the date immediately before February 10, 2002, which is the expiration date of the exclusion period of the right to set aside, and that the plaintiff's exercise the right to set aside against the principle of good faith, not exercising the right to set aside against the other creditors who have paid most interest (including part of the principal) before the commencement date of the company reorganization procedure after the default of electronic documents due to neglect, but exercising the right to set aside against some creditors including the defendant and some creditors (cittye Co., Ltd. and Seoul Guarantee Co., Ltd.

However, as long as the lawsuit in this case was brought within the exclusion period, it cannot be deemed a violation of the principle of good faith or an abuse of the avoidance power on the ground that the lawsuit in this case was filed immediately before the exclusion period, and the plaintiff exercised the avoidance power on only part of the creditors who have received repayment from the neglect of electronic obligation, and the ground therefor cannot be said to constitute a violation of the principle of good faith or an abuse of

3. Conclusion

Therefore, this case's repayment act against the defendant is subject to the exercise of the right to set aside under Article 78 (1) 1 of the Company Reorganization Act. As such, the defendant is obliged to restore the plaintiff to its original state following the exercise of the right to set aside, and as for 967,468,439 won from March 4, 1998; as for 91,643,835 won from March 13, 1998; as for 203,835,616 won from April 13, 1998; as for 197,260,273 won from May 13, 1998; as for 203,616 won from the date following the date of appeal, the defendant's statutory interest rate of 20% from the date of appeal to the date of 20.5% from the date of appeal as stipulated by the former Special Act No. 1506, Jun. 31, 1998.

Judges Yuwon rules (Presiding Judge)