[1] Method of appeal against a rejection of a written appeal under Articles 290(1) and 247(5) of the Debtor Rehabilitation and Bankruptcy Act (=special appeal)

[2] In a case where the court of appeal did not indicate that the appeal is a special appeal while submitting a petition of appeal against a judgment that only the special appeal is permitted, and where the court of appeal did not indicate that it is the Supreme Court, the court of acceptance of the

[3] The purport of the Debtor Rehabilitation and Bankruptcy Act regarding the appeal against the decision to discontinue rehabilitation procedures is that the appeal bond system is established

[4] The case holding that the decision of the court below that ordered the appellant who filed an appeal against the decision to discontinue rehabilitation procedures to deposit a security deposit, and that the decision of the court below that dismissed the appeal on the grounds of the non-performance cannot be deemed to unreasonably restrict

[1] Article 33 of the Debtor Rehabilitation and Bankruptcy Act provides that "if there is no provision in this Act concerning rehabilitation procedures, the Civil Procedure Act shall apply mutatis mutandis." Article 13 of the same Act provides that "Any person who has an interest in a judgment pursuant to the provisions of this Act may file an immediate appeal only when there is a separate provision in this Act." Since there is no provision that an immediate appeal may be filed against a ruling dismissing a petition of appeal pursuant to the provisions of Articles 290 (1) and 247 (5) of the same Act, an immediate appeal may not be filed against this. It is only permitted to file a special appeal pursuant to the provisions of Article 449 (1) of the Civil Procedure Act.

[2] Even if the parties did not indicate as the Supreme Court the indication of special appeal and the appellate court as to the judgment that only a special appeal is permitted, the court which received the written appeal shall regard it as a special appeal and send the records of trial to the Supreme Court.

[3] The Debtor Rehabilitation and Bankruptcy Act has a system of a deposit for appeal against the decision to discontinue rehabilitation procedures, which is to reasonably limit the right to appeal in order to prevent damages to other interested parties who may cause delay of the procedure due to abuse of the right to appeal by those who have a negative interest in the above decision of the rehabilitation court.

[4] The case holding that in a case where the appeal is dismissed on the grounds that the appellant who filed an appeal against the decision to discontinue rehabilitation procedures ordered the deposit of the appeal bond, and the appeal is dismissed on the grounds that the decision of the court below is acceptable in light of the purport and various circumstances of the appeal bond system, and it cannot be deemed that the decision unfairly limits the appeal claim of the special appellant

[1] Articles 13, 33, 247(5), and 290(1) of the Debtor Rehabilitation and Bankruptcy Act, Article 449(1) of the Civil Procedure Act / [2] Article 449 of the Civil Procedure Act / [3] Articles 247(4) and (5), and 290(1) of the Debtor Rehabilitation and Bankruptcy Act, Article 71(2) and (3) of the Rules on Debtor Rehabilitation and Bankruptcy / [3] Articles 247(4) and (5), and 290(1) of the Debtor Rehabilitation and Bankruptcy Act, Article 71(2) and (3) of the Debtor Rehabilitation and Bankruptcy Act, Article 27(1) of the Constitution

[1] [2] Supreme Court Order 99Ma2081 dated July 26, 1999 (Gong1999Ha, 1930) / [2] Supreme Court Order 97Ma250 dated June 20, 1997 (Gong1997Ha, 2256)

Gosung Razer Co., Ltd. (Attorney Cho Ho-su et al., Counsel for the defendant-appellant)

Changwon District Court Order 2009Mo81 dated September 2, 2010

The special appeal is dismissed.

ex officio deemed.

1. According to the records, the court below abolished the rehabilitation procedure of this case ex officio pursuant to Article 286 (1) 2 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Act”) on the ground that the rehabilitation plan was rejected at the meeting of interested persons, and the special appellant submitted a written complaint against this, and the court below ordered the special appellant to deposit a deposit of KRW 200 million pursuant to Articles 290 (1) and 247 (4) of the Act, and dismissed the written complaint of special appellant pursuant to Articles 290 (1) and 247 (5) of the Act on the ground that the special appellant did not comply with this order. The court below rejected the written complaint of special appellant pursuant to Article 290 (1) and 247 (5) of the Act on the ground that the special appellant did not comply with this order. The court below sent the record to the original court of Busan High Court, and the Busan High Court of Justice dismissed the judgment regarding this as an immediate appeal.

2. However, Article 33 of the Act provides that "if there is no provision in this Act concerning rehabilitation procedures, the Civil Procedure Act shall apply mutatis mutandis." Article 13 of the Act provides that "Any person who has an interest in a judgment pursuant to the provisions of this Act may file an immediate appeal only when there is a separate provision in this Act." Since there is no provision that an immediate appeal may be filed against a ruling dismissing a petition of appeal pursuant to the provisions of Articles 290 (1) and 247 (5) of the Act, it shall not be filed an immediate appeal, and it shall be interpreted that only a special appeal pursuant to the provisions of Article 449 (1) of the Civil Procedure Act shall be permitted (see Supreme Court Order 9Ma2081, Jul. 26, 199). Even if a party fails to indicate a special appeal and the appellate court as the Supreme Court, the court in receipt of the petition shall be deemed a special appeal and shall be deemed to have been sent to the Supreme Court (see, e.g., Supreme Court Order 2007Ma25, Jun. 25, 1997).

Nevertheless, the court of original judgment shall send records to the original court of Busan High Court and such a court of original judgment as above. However, this case is illegal as it is decided by a court without authority. Thus, this case shall be treated as a special appeal against the decision of the original court (see Supreme Court Order 97Ma250 delivered on June 20, 1997, etc.).

3. According to Articles 290(1), 247(4), and 247(5) of the Act, when an appeal is filed against the decision to discontinue rehabilitation procedures, the rehabilitation court may require the appellant to deposit money or securities recognized by the court within the scope prescribed by the Supreme Court Regulations as a guarantee within a fixed period. When the appellant fails to provide a guarantee within the period determined by the rehabilitation court, the rehabilitation court shall dismiss the written appeal by its ruling. In addition, Article 71(2) and (3) of the Rules on Debtor Rehabilitation and Bankruptcy provides that the amount to be deposited as a guarantee shall be within the scope of 1/20 of the total amount of the voting rights of the rehabilitation creditor and the rehabilitation secured creditor (where the amount is not finally determined, the amount shall be within the scope of 1/20 of the total amount of the voting rights of the debtor and the rehabilitation secured creditor (where the amount is not determined or reported, the amount of the voting rights of the appellant or the rehabilitation creditor).

As above, the law has a security deposit system in relation to the decision of discontinuation of rehabilitation procedures, to reasonably limit the right to appeal in order to prevent damages to other interested parties who may cause delay of the procedure due to abuse of the right to appeal by those who have a negative interest in the above decision of the rehabilitation court.

In light of the purport of the system of the deposit for appeal and various circumstances revealed in the record, the court below’s determination of the amount of the deposit for guarantee in this case is acceptable, and its determination cannot be deemed to unreasonably restrict the right to claim a judgment by a special appellant. Therefore, the court below’s rejection of the petition by a special appellant pursuant to Articles 290 and 247(5) of the Act is justified.

The order of the court below did not make an unreasonable judgment on the grounds of special appeal, that is, a violation of the Constitution that affected the trial, or an order, rule, disposition which is the premise of the judgment, etc. of the Constitution or laws.

4. Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)