The bankruptcy trustee in the comprehensive distribution of careers of the bankrupt corporation (Law Firm Aju, Attorneys Yu-soo et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm Sejong, Attorneys Go-hee et al., Counsel for the defendant-appellant)

APSS Specialized Company (Law Firm Squa, Attorneys Lee Jong-tae, Counsel for the plaintiff-appellant)

October 12, 2006

Seoul Central District Court Decision 2005Gahap47156 Decided December 15, 2005

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The contract to establish a mortgage concluded on April 21, 1997 between the bankrupt's comprehensive distribution of career of the bankrupt corporation and the Dongcheon Bank on each real estate listed in the separate sheet No. 1 shall be denied. The defendant will implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed on April 22, 1997 with respect to the real estate listed in the separate sheet No. 1 and No. 2 listed in the separate sheet No. 1 in the separate sheet No. 1 in Seoul Central District Court. The defendant will notify the plaintiff that he transferred the dividend payment claim to the Republic of Korea and transferred the above

1. Basic facts

The following facts are not disputed between the parties, or found in Gap evidence 1-1 through 6, evidence 1-2-1 through 4, evidence 3, evidence 4, evidence 5-1, 2, Gap evidence 6, 7, 8, Eul evidence 1-1 through 17, and evidence 1-1 through 17, and evidence 1-2 through 4.

A. The Korea Assets Management Corporation established on December 31, 1999 to facilitate the disposal of non-performing assets owned by financial institutions and effectively support the normalization of the business of companies showing signs of insolvency as affiliates to career groups at the time of 1997. The Defendant (hereinafter “Korea Assets Management Corporation”) is a corporation established to efficiently support the promotion of the disposal of non-performing assets owned by financial institutions and the normalization of the business of companies showing signs of insolvency.

B. On April 21, 1997, the distribution of career integrated shall be conducted with the career integrated food corporation, which is an affiliate of career group (hereinafter “ career integrated food”), to secure all obligations currently and future as a surety due to credit transaction, such as bill lending, bill discount, etc., with respect to the Dolung Bank, the Seoul Central District Court concluded a mortgage contract (hereinafter “instant mortgage contract”) with the debtor career comprehensive food and career joint food as well as mortgage bank, and completed the registration of the establishment of a mortgage on April 22, 1997 with the receipt of a credit transaction with the Dolung Bank (hereinafter “Dolung Bank”).

C. At the time, career groups were promoting the decentralization of their businesses. In the process, the integrated distribution of career groups had an excessive burden of financial expenses by raising external loans and providing enormous financial support through investments, loans, and payment guarantees to affiliates of career groups. The rapid aggravation of financial expenses due to the decline in business performance and insolvency of claims against affiliate companies has led to the rapid aggravation of financial resources. On April 21, 1997, the so-called "the so-called "the so-called "the so-called "the postponement of insolvency" was designated as an enterprise subject to the normalization of an enterprise showing signs of insolvency. However, without resolving the above fundamental financial difficulties, the company filed an application for the commencement of composition with the Seoul Central District Court 97Da27, Sept. 8, 1997.

D. After that, the Seoul Central District Court decided the commencement of composition on February 3, 1998, and on February 27, 1998, the same court decided the approval of composition in accordance with the conditions of composition passed at the meeting of creditors. The approval decision of composition was finalized on March 26, 1998.

E. After that, pursuant to Article 14(2) of the Act on the Structural Improvement of the Financial Industry and Article 4 of the former Act on the Efficient Disposal of Non-Performing Assets, etc. of the Financial Institutions and the Establishment of Korea Asset Management Corporation, the Eastern Bank transferred to the defendant the right to collateral security established on the instant 1 or 3 real estate to secure the right to career comprehensive food, career couper, career couper, etc. of the Eastern Bank. The Seoul Central District Court completed the supplementary registration of collateral security transfer from November 5, 1998 to the Seoul Central District Court No. 57051, Nov. 5, 1998.

F. At the time of obtaining the approval of composition as above, the comprehensive career distribution intended to expand distribution business such as Ack risk department stores, and to secure financial resources for the repayment of composition debts by selling the self-employed assets and arranging the distribution business and pharmaceutical business division in 2000. On the contrary, in accordance with the authorized terms and conditions, most of the real estate owned should be sold within one year after the approval of composition becomes final and conclusive, and the sale procedure should be delayed for several years, while some of the real estate was sold in the voluntary auction procedure commenced at the request of the holder of the right to separate settlement, and only the size of the site of the B-dong truck terminal in Seocho-gu Seoul Metropolitan Government remains as self-help assets, the total assets of the career comprehensive distribution complex decreased remarkably from 1998 to 2001, while the total liabilities decreased almost, 190 to 201, 2009 to 196, 196/196, 200 to 196, 1964 to 296, 196.6.6

G. On August 1, 2003, the Seoul Central District Court rendered a decision to revoke the composition concerning comprehensive career distribution ex officio pursuant to Article 68(2) of the former Composition Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter “Composition Act”) by comprehensively taking into account the above circumstances, that the comprehensive career distribution did not fulfill the conditions of composition without justifiable grounds and that there was no intent or ability to fulfill the conditions of composition in the future.

H. Upon the decision of revocation of composition on comprehensive career distribution, which became final and conclusive on August 17, 2003, the Seoul Central District Court declared bankruptcy on August 19, 2003 on comprehensive career distribution ex officio in accordance with Article 9 of the Composition Act, and appointed the plaintiff as the bankruptcy trustee.

I. Meanwhile, on the other hand, on December 31, 2001, the defendant transferred only claims for career integrated food, among the claims acquired from the Eastern Bank, to a limited liability company specialized in rink-backed securitization, and notified the transfer thereof. On July 31, 2002, the limited liability company specialized in rink-backed securitization transferred the above claims to the defendant joining the defendant, and on June 28, 2004, the new mutual savings bank transferred the above claims to the defendant joining the defendant, and notified the transfer thereof.

(j) On June 9, 2004, the voluntary auction procedure of the instant real estate No. 3 was commenced at the Seoul Central District Court (Seoul Central District Court 2004Ma9498, Jun. 9, 2004). The Plaintiff asserted that the Defendant and the Defendant, the Defendant, and the garnishee, were denied pursuant to subparagraph 5 of Article 64 of the former Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter referred to as the “Bankruptcy Act”), on the ground that the voluntary auction procedure of the instant real estate No. 3 was commenced at the time of the instant real estate No. 9498, Jun. 9, 2004, the Defendant and the Intervenor filed an application for prohibition of the payment of dividends against the Defendant and the Intervenor’s claim against the Republic of Korea in the instant real estate auction procedure of the said real estate No. 2005Kahap1809, May 6, 2005.

C. On May 16, 2005, the third real estate of this case was sold to the mobilization investment development company in KRW 44,01,000,000. On June 28, 2005, a distribution schedule of KRW 44,101,00,000,000, plus the above sales price of KRW 98,563,370 and the sales price of KRW 98,563,370, which was the total of KRW 44,109,563,563,370, which was the actual dividend of KRW 77,646,020, which was the actual dividend amount of KRW 44,646,00,00,000,000, which was the actual dividend amount of KRW 44,031,917,350, which was the dividend amount of KRW 16,031,917,350 to the Defendant.

2. Determination on this safety defense

The Defendant’s Intervenor asserts that the instant lawsuit was brought against the Plaintiff, denying the Plaintiff’s act of establishing a collateral on real estate Nos. 1, 2, and 3 of the instant case, which was concluded between the distribution of career-based and the Eastern Bank, and seeking the implementation of the procedure for registering the cancellation of the registration of the establishment of a collateral on real estate Nos. 1 and 2 of the instant lawsuit. Since the said real estate was sold to Pakistan Co., Ltd. (hereinafter only referred to as Pakistan) after the instant lawsuit was brought, the Plaintiff was disqualified as the party to the instant lawsuit.

According to the statements in the evidence Nos. 1 and 2-1 and 2-2 of this case, the real estate Nos. 1 and 2 of this case, registered in the name of a comprehensive distribution in career, was sold in Pakistan on July 26, 2006, and the registration of ownership transfer was completed in the name of Pakistan on the same day. However, even after the registration of ownership transfer was completed, the plaintiff is still entitled to seek the revocation of the establishment registration of a collateral security in the position of the holder of the right to set aside the right to set up the right to set up the right to set the right to set the right to set the right to set the right to set the right to set the right to set the right to set the right to set the right to set the right and to recover it from

3. Judgment on the merits

A. The plaintiff's assertion

In the event that a composition debtor applied for commencement of composition before the commencement of payment was decided to authorize composition, but the court issued a decision to revoke composition ex officio pursuant to Article 9 and Article 68 (2) of the Composition Act and declared bankrupt after the decision to revoke composition becomes final and conclusive, the bankruptcy trustee exercises the right to set aside free of charge pursuant to Article 64 subparagraph 5 of the Bankruptcy Act, the date of application for commencement of composition shall be deemed the date of suspension of payment or the date of petition for bankruptcy set as the time requirement for the bankrupt act subject to the right to set aside free of charge. The contract of mortgage of this case entered into with the German Commercial Bank on April 21, 1997 is a gratuitous act conducted within six months from September 7, 1997, which is the date of application for commencement of composition of comprehensive distribution of career, and thus, the court denied it pursuant to Article 64 subparagraph 5 of the Bankruptcy Act, and the defendant, who acquired the right to set aside dividends from the East Commercial Bank with respect to the payment of dividends of this case from the Republic of Korea, has the obligation to voluntarily transfer 2 of this case No.

B. Defendant and Defendant Intervenor’s assertion

The defendant and the defendant joining the defendant shall interpret Article 10 of the Composition Act in consideration of the fact that Article 64 subparagraph 5 of the Bankruptcy Act does not explicitly stipulate the date of commencement of composition as the date of application for commencement of composition, and Article 64 subparagraph 5 of the Composition Act does not explicitly stipulate the date of commencement of composition as the base point of time of denial. Since Article 64 subparagraph 5 of the Composition Act has become final and conclusive after the commencement of composition becomes final and conclusive after the commencement of composition is revoked and the causation between the application for commencement of composition and the ex officio declaration of bankruptcy has been reduced, so long as the composition is partially performed for the composition conditions authorized to the composition debtor from the time of cancellation of composition, the causation between the application for commencement of composition of composition of the Composition and the ex officio declaration of bankruptcy, it shall be deemed as the date of payment suspension or bankruptcy request which is not the date of application for commencement of composition or the date of declaration of bankruptcy, it shall not be deemed as the date of decision of revocation of the Composition, which is 300 days prior to 20 days of bankruptcy.

C. Determination

(1) Requirements for gratuitous avoidance under the Bankruptcy Act

Article 64 Subparag. 5 of the Bankruptcy Act provides that an act of free payment or a petition for bankruptcy filed by the bankrupt or any act of free payment or any act of free payment to be performed simultaneously within six months prior thereto may be denied on behalf of the bankrupt estate. Such an act of free payment or an act of free payment to be set aside under the Bankruptcy Act is an act of free payment or an act of free payment to be set aside. The act of the bankrupt under the Bankruptcy Act is a time requirement, ① an act of free payment suspension or a petition for bankruptcy or within six months prior thereto, and ② an objective requirement, ② an act of the bankrupt must be “an act of not making any contribution of the other party to the extent that the bankrupt reduces or increases his/her obligation without receiving any compensation, or to the extent that it

(2) Whether the instant mortgage contract satisfies the time requirements for gratuitous avoidance

(A) Relevant provisions

(1) The Composition Act;

(1) Article 9 (1)

If a decision on the rescission of composition, the disapproval of composition, or the cancellation of composition becomes final and conclusive, the court shall declare bankruptcy ex officio: Provided, That this shall not apply in case where there is no cause of bankruptcy.

(2) Article 10 (1)

If the adjudication of bankruptcy is made pursuant to the provisions of paragraph (1) of Article 9, an application for the commencement of composition or the cancellation of composition, or an act of the applicant for composition falling under a crime of fraudulent bankruptcy, with respect to the application of Part I of the Bankruptcy Act, shall, if there is no application for the suspension of payment or bankruptcy before that time, be considered as an application for the suspension of payment or bankruptcy, and the bonds arising in order to composition

(3) Article 67

If there is any act corresponding to the offense against fraud in bankruptcy on the debtor, the court may decide the cancellation of composition ex officio or upon the application of composition creditor.

(4) Article 68 (2)

If a debtor neglects to fulfill the conditions of composition without any justifiable reason and it is deemed that the debtor has no intention or ability to fulfill the conditions of composition in the future, the court shall, upon a motion of the creditor or ex officio, decide to cancel composition.

(5) Article 69

The cancellation of composition shall not affect the rights which a composition creditor has acquired through composition.

(b)Article 64 of the Bankruptcy Act;

The act falling under any of the following subparagraphs may be avoided for the bankrupt estate:

1. An act which the bankrupt knows that it would damage any bankruptcy creditor, except in case where any person who receives any benefit from it, does not know the fact that it would damage any bankruptcy creditor at the time of the act;

2. An act detrimental to the bankrupt such as the offer of a security, extinguishment of an obligation, or other bankruptcy creditors, which is performed after the payment is suspended or a petition for bankruptcy is filed: Provided, That this shall not apply in case where the person who receives any benefit from it was unaware of the payment suspension or

3. Act as referred to in the preceding subparagraph, which is a relative of or a person living together with the bankrupt, except in case where the other party does not know that the payment has been suspended or the petition of bankruptcy has been filed at the time of

4. Act concerning the provision of a security or extinguishment of an obligation, which is made by the bankrupt after the payment has been suspended or a petition for bankruptcy has been filed, or within sixty days before it, and which does not belong to the liability of the bankrupt, or the method or time thereof does not belong to the liability of the bankrupt: Provided, That this shall not apply in case where the creditor was unaware of the fact that the payment has been suspended

5. Gratuitous act or other equivalent act performed by the bankrupt after the payment has been suspended or a petition for bankruptcy has been filed, or within six months prior thereto.

(c) Article 78(1) of the former Company Reorganization Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same shall apply)

Any of the following acts may be denied in respect of company property after the commencement of reorganization proceedings:

An act detrimental to reorganization creditors, etc. who were made after a company under subparagraph 2 has made an application for suspension of payment or bankruptcy, commencement of composition proceedings or commencement of reorganization proceedings (hereinafter referred to as "suspension of payment, etc."), and an act relating to provision of security or extinguishment of obligation.

An act performed by the company under subparagraph 4 after payment is suspended, etc. or within six months prior to such act, at least shall be performed simultaneously.

(B) Determination as to the timing of payment suspension of comprehensive career distribution

On September 7, 1997, which was the date of the bankruptcy, the general distribution of the career integrated shall apply for the commencement of composition and received the approval of composition in accordance with the conditions of composition passed at the meeting of creditors from the Seoul Central District Court on February 27, 1998. The approval of composition was finalized on March 26, 1998. However, on August 17, 2003, which was five years after the completion of the composition procedure for the comprehensive distribution of career, the above court revoked the composition ex officio after the completion of the composition procedure for the comprehensive distribution of career, and on the date the revocation of composition became final and conclusive, the fact that the composition was declared ex officio in accordance with Article 9(1) of the Composition Act is recognized as above.

On the other hand, Article 10(1) of the Composition Act provides that when a composition procedure commenced upon the application of a composition debtor prior to the commencement of payment suspension such as default, but the court declares ex officio a composition debtor pursuant to Article 9(1) of the Composition Act after the abolition of composition, nonauthorization of composition or cancellation of composition has become final and conclusive, it shall be deemed that there is an act of an applicant for composition at the time of application for commencement of composition, at the time of application for cancellation of composition or at the time of application for cancellation of composition, or at the time of application for cancellation of composition, or at the time of insolvency. According to the above Article 10(1) of the Composition Act, when a composition procedure commences upon the application of a composition debtor prior to payment suspension and the decision of approval of composition has become final and conclusive upon the application of a composition creditor or ex officio, the case where a court declares payment suspension against a composition debtor on the grounds of fraudulent bankruptcy before the commencement of payment suspension, and the case where a court declares payment suspension on the grounds of bankruptcy cancellation after the application of a composition creditor.

On the other hand, the "Suspension of payment", which is the basis for the time-period for gratuitous avoidance under the Bankruptcy Act, means that an obligor explicitly and implicitly expresses that the obligor cannot repay his/her obligation at maturity to the outside, due to lack of self-sufficiency, and the suspension of payment is required to be directly connected with the bankruptcy procedure that requires the avoidance power to be exercised until bankruptcy is declared. However, if the condition of partial exemption from an ordinary obligation and the installment payment in accordance with the purpose of the composition procedure to prevent bankruptcy liquidation and to promote corporate rehabilitation is resolved at the meeting of creditors and a decision of approval of composition is confirmed accordingly, the composition procedure that has been progress until that time is completed is completed as a matter of course. Considering that the legal effect of a contract between the composition creditor and the composition debtor and the composition intervenor with respect to all composition claims is changed to general and abstract as prescribed in the composition condition, so it is reasonable to interpret the scope of revocation of payment as long as the transaction becomes final and conclusive after the company's declaration of bankruptcy becomes subject to the same crisis or crisis at the time of the company's application for revocation.

In this case, the payment suspension condition at the time of application for commencement of the commencement of the composition of a career comprehensive distribution was resolved in accordance with the final and conclusive decision to authorize composition, and thereafter, the comprehensive career comprehensive distribution indicates repayment intent for five years or changed composition debt and continued to repay the debt at the same time, so the “payment suspension” which was the cause of the commencement of the composition cannot be deemed directly related to the bankruptcy procedure which was sentenced five years after the commencement of the composition was sentenced, and the application for commencement of the composition cannot be deemed as the “payment suspension” at the time of determining the time requirements for exercising the avoidance power

Therefore, where composition procedures commenced upon the application of a composition debtor have been terminated by the final decision of approval of composition, and the court has ex officio cancelled the composition in accordance with Article 68(2) of the Composition Act and declared bankrupt in accordance with Article 9(1) of the Composition Act, the time when the suspension of payment is deemed to be the time when the commencement of composition is applied is not the time when the commencement of composition is applied.

(3) Sub-decisions

The act of establishing the instant right to collateral security, which was entered into with the Eastern Bank on April 21, 1997, between the time when the establishment of the instant right to collateral security, is considered as the time of suspension of payment for the comprehensive career distribution, that is, the Seoul Central District Court’s ex officio revocation of the composition with respect to the comprehensive career distribution, and does not meet the time requirement for free setting as provided for in Article 64 subparag. 5 of the Bankruptcy Act, since the act was conducted on or before August 1, 2003 by the Seoul Central District Court, which was conducted on or before August 1, 200, and thus, it cannot be denied according to the plaintiff’s right to set aside without further consideration as to whether the act is a gratuitous act or an act for consideration that can be said as

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition as the plaintiff's appeal is dismissed.

[Attachment]

Judges Lee Young-gu (Presiding Judge)