[1] Whether the report of reorganization claim in a lawsuit for confirmation of reorganization claim constitutes a litigation requirement (affirmative)

[2] Where a company reorganization procedure was abolished prior to the approval of a reorganization plan, whether a reorganization claim not reported shall be forfeited (negative)

[3] In a case where reorganization proceedings are abolished without a decision to authorize reorganization programs during the course of the pending trial of a lawsuit for confirmation of reorganization claims against a reorganization claim not reported, whether the defect in the requirements for a lawsuit is cured (affirmative)

[1] In full view of the provisions of Articles 125, 147 through 150, 241, 276, and 278 of the Company Reorganization Act, reorganization creditors wishing to participate in company reorganization procedures shall report reorganization claims, and if there is an objection against reported reorganization claims, any reorganization creditors shall file a lawsuit for confirmation of reorganization claims against the objectors, or take over the lawsuit suspended due to the commencement of procedure against the objectors, who were pending before the commencement of the procedure, and if there is an objection against the reported reorganization claims, the unreported reorganization claims shall be forfeited when the approval of reorganization plans is decided, and such forfeited reorganization claims shall not be reinstated even after the abolition of reorganization procedures. Therefore, the lawsuit seeking such confirmation is unlawful as there is no benefit of lawsuit, and whether to report reorganization claims in the lawsuit for confirmation of reorganization claims shall be ex officio as the requirement of litigation.

[2] Where reorganization proceedings are abolished prior to the approval of reorganization programs, unreported reorganization claims shall not be forfeited, and subsequent litigation may be instituted or pending litigation may be changed into an ordinary litigation.

[3] In a case where reorganization proceedings are abolished without the approval of reorganization plans during the course of the pending trial of a lawsuit for confirmation of reorganization claims against a unreported reorganization claim, the declaration of reorganization claims is subject to ex officio investigation as a litigation requirement, and thus, the court of final appeal should recognize the recovery of the defects.

[1] Articles 125, 147, 148, 149, 150, 241, 276, and 278 of the Company Reorganization Act; Article 124 of the Civil Procedure Act / [2] Articles 125, 241, 276, and 278 of the Company Reorganization Act / [3] Article 404 of the Civil Procedure Act; Articles 125, 241, 276, and 278 of the Company Reorganization Act

[3] Supreme Court Decision 94Da23500 delivered on May 23, 1995 (Gong1995Ha, 220)

Sejong Trade Co., Ltd. (Attorney Choi Young-young et al., Counsel for the defendant-appellant)

Construction of friendly comprehensive construction corporation, the administrator of friendly comprehensive construction corporation, the non-party's lawsuit taking over the lawsuit

Seoul High Court Decision 97Na57384 delivered on April 7, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

ex officio deemed.

In light of the provisions of Articles 125, 147 through 150, 241, 276, and 278 of the Company Reorganization Act, any reorganization creditor who wishes to participate in the company reorganization procedure shall report the reorganization claim, and if there is an objection against the reported reorganization claim, he shall file a lawsuit seeking confirmation of the reorganization claim against the objectioner, or take over the lawsuit interrupted by the commencement of the procedure against the objectioner. If the reported reorganization claim is approved, the unreported reorganization claim shall be forfeited if the approval of reorganization plan is approved, and such unreported reorganization claim shall not be reinstated even if the reorganization procedure is abolished thereafter, the lawsuit seeking confirmation thereof shall be inappropriate as there is no benefit in the lawsuit seeking confirmation, and the issue of reporting reorganization claim in the lawsuit seeking confirmation of reorganization claim shall be examined ex officio as the litigation requirement. However, even if the reorganization procedure was abolished before the approval of reorganization claim was approved, the claim for confirmation of reorganization claim in the above case shall not be accepted as an ordinary lawsuit seeking confirmation of reorganization claim, which is a final and conclusive judgment of the court below.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial in accordance with the purport of Article 388 of the Civil Procedure Act. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)