Claimant (Re-Appellant of Supreme Court Decision)

Suwon District Court Order 2012Mo30 dated July 16, 2013

The appeal of this case is dismissed.

1. Facts of recognition;

According to records, the following facts are recognized.

On April 3, 2012, the debtor filed an application for commencement of rehabilitation proceedings with the court of the lower court on April 3, 2012, and the lower court considered the debtor as a custodian on May 10, 2012, as the debtor did not appoint a separate administrator when deciding to commence rehabilitation proceedings with respect

On July 23, 2012, the lower court held a first meeting of interested persons on July 23, 2012 to recognize that the continuous value of the debtor is larger than the liquidation value, and ordered the administrator to submit the rehabilitation plan by September 24, 2012.

On November 2, 2012, a custodian submitted a rehabilitation plan. On June 14, 2013, a custodian submitted a rehabilitation plan. On June 17, 2013, the lower court, after completing an examination on the above rehabilitation plan on the date of the meeting of interested persons held on June 17, 2013, brought the plan to the creditors’ resolution. As a result, the lower court approved 469,032,768 won out of the total amount of rehabilitation secured creditors 1,940,85,56 won, with the consent of 24.166% of the total amount of rehabilitation secured creditors, 1,36,059,68,620 won, the consent of 493.923% of the total amount of rehabilitation creditors, 498,620 won, and 1,865,56,579% of the total amount of rehabilitation secured creditors, and 250% of the total amount of rehabilitation secured creditors’ consent of 1,56567.7.

On July 5, 2013, the debtor submitted a draft rehabilitation plan (amended), and the court of the original judgment, after permitting an application for change of the above draft rehabilitation plan on the continuation date, rejected the above draft rehabilitation plan (amended plan) as the rehabilitation secured creditor did not meet the requirements for resolution of the rehabilitation secured creditor, on the ground that the consent of 61.26% was obtained with the consent of 8.0% from the rehabilitation secured creditor of the total amount of 1,940,85,56 won among the total amount of 1,189,032,768 won, and the consent of 61.26% was obtained with the consent of 1,136,059,687 won among the total amount of rehabilitation secured creditor group, the consent of 878,385,986 won was obtained.

On July 16, 2013, the lower court rendered a decision to discontinue rehabilitation procedures for the debtor on the ground that the rehabilitation plan was rejected.

2. The appellant's assertion;

At the meeting of related persons for resolution of the rehabilitation plan, the appellant filed a written consent with the purport that “The appellant, who is a rehabilitation secured creditor who did not consent to the rehabilitation plan, has the intention to consent to the initial rehabilitation plan, but was wrong in delivering the opinion with the agent present at the meeting, and submitted the written consent that “The appellant shall revoke it and consent with the mistake of the party’s company at the meeting of related persons,” which was prepared by the rehabilitation secured creditor of this case at the meeting of related persons.”

3. Determination

Considering the fact that a resolution on a rehabilitation plan is an area governed by the principle of organization law and that where an individual rehabilitation secured creditor or a rehabilitation creditor exercises his/her voting right at an assembly for a resolution, such individual intention will be added to the whole and affect only the fulfillment of the requirements for resolution on the rehabilitation plan; where the rehabilitation procedure is abolished or a decision on whether to approve the rehabilitation plan is made based on the result of the resolution, the legal relationship surrounding the debtor comprehensively changes, regardless of whether an individual creditor consents to the rehabilitation plan; if a resolution can be changed after the completion of the resolution due to the defect of the individual voting right holder's consent or non-approval, the collective legal relationship formed on the basis of the resolution or the decision on whether to grant the approval or non-approval may be unstable later; in a resolution on an individual rehabilitation secured creditor or rehabilitation creditor's expression of intent on the consent or non-approval of the rehabilitation plan, the provisions on defects in declaration of intention, including the provisions on revocation of declaration of intent due to mistake prescribed in Article 109 of the Civil Act, which is a provision on individual legal acts, cannot be applied.

Furthermore, even if the exercise of voting rights by individual rehabilitation secured creditors or rehabilitation creditors expressed their intent based on mistake, it cannot be deemed that the procedure of an assembly for resolution is unlawful, or that the court’s decision on whether to abolish or authorize the resolution is unlawful. There is no illegality or illegality in the lower court’s determination that there was no decision on the authorization of the rehabilitation plan pursuant to Article 244(1) of the Debtor Rehabilitation and Bankruptcy Act, or that there was no decision on the authorization of the rehabilitation plan.

4. Conclusion

Therefore, the order of the court below is justified, and the appeal of this case is dismissed as it is so decided as per Disposition.

Judges Kim Sung-soo (Presiding Judge)