Taeduk Construction Co., Ltd.

Dae Changyang Association Co., Ltd. (Attorney Kim Chang-soo, Counsel for defendant-appellant)

September 4, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's compulsory execution against the plaintiff is denied based on the table of rehabilitation creditors of the Seoul Central District Court 2012 Gohap105 case dated September 1, 2012.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged in each entry in Gap evidence 1 through 5 (including additional numbers) by integrating the whole purport of the pleadings:

A. On June 19, 2012, the Plaintiff filed an application for rehabilitation with Seoul Central District Court 2012 Gohap105 (Seoul Central District Court). On December 31, 2012, the decision to commence rehabilitation was rendered, and the rehabilitation plan was approved on March 27, 2013.

B. On April 7, 2016, the rehabilitation court decided to terminate the rehabilitation procedures pursuant to Article 283(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) on the grounds that there is no evidence that the Plaintiff is deemed to impede the implementation of the rehabilitation plan.

C. Meanwhile, the defendant reported 39,516,274 won in the above rehabilitation procedure as rehabilitation claim. The amount of the defendant's rehabilitation claim confirmed through the plaintiff's denial procedure is 14,516,274 won, and the plaintiff was scheduled to pay 4,790,370 won to the defendant according to the above rehabilitation plan.

D. However, even after the completion of the rehabilitation procedure, the Plaintiff did not repay according to the rehabilitation plan, and the Defendant was issued a seizure and collection order (hereinafter “instant seizure and collection order”) with the purport that on July 3, 2017, based on the original copy of the rehabilitation creditors’ list with executory power, the Defendant seized KRW 4,790,370 to the Plaintiff’s claim for construction cost against Sungnam city, and may collect the above seized claim,” and the original copy of the above order was served at the time of Sungnam.

2. The plaintiff's assertion

The Plaintiff failed to repay the amount according to the rehabilitation plan to the Defendant on account of the decline in credit rating following the rehabilitation plan. However, the authorized rehabilitation plan provides that “In the event that the Plaintiff fails to repay any obligation according to the rehabilitation plan due to the shortage of financial resources to repay, it shall be repaid in proportion to the principal of rehabilitation security rights and the principal amount of rehabilitation claims in the order of the respective creditors’ repayment amount for the corresponding year, and in the case there is any remainder, it shall be repaid in proportion to the interest prior to the commencement of rehabilitation security rights and the interest prior to the commencement of rehabilitation claims in the order of interest prior to the commencement of rehabilitation security rights and the interest prior to the commencement of rehabilitation claims, and the unpaid portion of the estimated repayment amount shall be repaid in preference to the repayment date for the following year.” Thus, even if the Plaintiff delays the payment of principal and interest pursuant to the rehabilitation plan, the Defendant shall receive the repayment according

Nevertheless, the Defendant received the seizure and collection order of this case according to the table of rehabilitation creditors, and such compulsory execution is contrary to the principle of equity with other creditors and should not be permitted.

3. Determination

A. Article 131 of the Debtor Rehabilitation Act provides that "no act extinguishing rehabilitation claims, such as repayment or repayment, shall be performed without following the rehabilitation plan, except as otherwise provided for in this Act after the rehabilitation procedures commence." Article 255 (1) of the same Act provides that "When a decision to authorize the rehabilitation plan becomes final and conclusive, any entry in the table of rehabilitation creditors or the table of rehabilitation secured creditors on the rights approved pursuant to the rehabilitation plan based on the rehabilitation claim or rehabilitation security right shall have the same effect as a final and conclusive judgment on the debtor, rehabilitation creditor, etc." Article 131 (2) of the same Act provides that "any person who holds the right referred to in the provisions of paragraph (1), the payment of money and any other claim for performance, may perform compulsory execution on the debtor and any person who bears any obligation for the rehabilitation after the rehabilitation procedures are completed pursuant to the table of rehabilitation creditors or the table of rehabilitation secured creditors, in cases where the rehabilitation debtor fails to perform the above rehabilitation obligations even after the rehabilitation plan is entered in the table of rehabilitation creditors and the rehabilitation plan is finalized."

B. Meanwhile, the contents of the rehabilitation plan mentioned by the Plaintiff are indicated in the “5. The order of repayment settlement”, which is merely a determination of the method of repayment to be performed by the rehabilitation debtor when the repayment resources fall short of the repayment resources. Accordingly, it cannot be interpreted that the Defendant, who is a rehabilitation creditor, cannot perform compulsory execution notwithstanding the express provision of Article 255 of the Debtor Rehabilitation Act as seen earlier.

C. Furthermore, the issue is whether rehabilitation creditors who are able to perform compulsory execution according to the table of rehabilitation creditors are forced to perform compulsory execution is based on the individual creditors’ free will, and thus, it cannot be deemed that there is a violation of the principle of equality of creditors on the ground that only some rehabilitation creditors like the defendant attempt to perform compulsory execution and the remaining rehabilitation creditors do not perform compulsory execution.

D. Ultimately, the Defendant’s statement on the list of rehabilitation creditors having the same effect as the final and conclusive judgment is indicated as the person holding the monetary claim, and the fact that the rehabilitation procedure for the Plaintiff is terminated is as seen earlier. As such, the Defendant is entitled to enforce compulsory execution under the table of rehabilitation creditors pursuant to Article 255 of the Debtor Rehabilitation Act, and the Defendant’s assertion on a different premise is unacceptable

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hong-seok