Korean Bank (Law Firm Sejong, Attorneys Kim Hong-ju et al., Counsel for the plaintiff-appellant)

MTN Co., Ltd. (Law Firm Subdivision, Attorneys Kim Sun-soo et al., Counsel for the plaintiff-appellant)

October 6, 2016

Suwon District Court Decision 2014Gahap61947 Decided October 7, 2015

1. The judgment of the court of first instance is modified as follows.

A. Of the judgment in claim allowance proceedings No. 2013-202 dated February 7, 2014, the part regarding “the Plaintiff’s rehabilitation security right against the debtor MTTTT Co., Ltd. shall be determined as KRW 1,440,986,329” shall be modified as follows.

B. The Plaintiff’s rehabilitation security right against MTTN Co., Ltd. shall be confirmed as KRW 4,945,727,460.

2. All costs of the lawsuit shall be borne by the defendant.

The decision is as follows (the plaintiff reduced the claim in the trial 1).

1. Basic facts

A. Plaintiff’s loan and offer of security to IMTN Co., Ltd.

The Plaintiff leased money to MTTN Co., Ltd. (hereinafter “MTTN”), which is a company that carries on the design, manufacture, and sale of semiconductors and electronic devices, or real estate leasing business, as follows, and received from MTTG the instant building “the instant land” and “the instant building”, “the instant building site”, in which blocks are built on the business facilities of MTTTT, 688-1 Korea Venture Business, Sung-gu, Sungnam-dong, Sungnam-dong, Busan-dong, 388-1, the ownership of the relevant building site, as security:

2,552,68,00 won 14,206,955 won 2,566,854,955 won on December 30, 2011, totaling the principal of and interest (only for the interest accrued after the commencement) on the attached loan period included in the main sentence, including in the main sentence, 37,506,593 won on June 29, 2012, 297,521,521,906,742 won on June 29, 2012, 7,59,413,54,54,742 won on total of 10,59,413,54,742 won on total of 10,713,48 won,126,268,190 won.

(b) Rehabilitation procedures for MTN;

1) On January 30, 2013, where a large amount of financial losses incurred in the KIK contract concluded with the aim of avoiding exchange losses, the sales reduction due to the new construction of the building of this case, and the decline in sales due to the decline in sales due to the changes in the business environment, etc., and the financial failure that is unable to meet the operating fund and the interest expenses of the loan of financial institutions, etc., the application for rehabilitation procedures was filed on January 30, 2013. On February 15, 2013, the above court decided to commence the rehabilitation procedure for MTTT (hereinafter “instant rehabilitation procedure”). The Nonparty’s representative director was appointed as a manager (hereinafter “MTTT”) and the Nonparty was appointed as a manager (hereinafter “the above administrator for convenience”).

2) In the instant rehabilitation procedure, the Plaintiff reported 10,126,268,190 won of the above loan as a rehabilitation security right. However, MTTG reported only 549,752,50 won of the loan principal and interest of December 30, 201 as a rehabilitation security right (i.e., 10,126,576,515,690 won (= 126,268,190 - 549,752,500 won) of the loan and interest of 2,017,102,45 (i.e., the principal and interest of 2,56,854,95 won) of the loan and interest of 2,56,855 won - 549,750,500 won of the loan and interest of 2,5750 won of the loan and interest of 2,571,297,271 of the instant loan and interest of 2.

C. Plaintiff’s application for final claim inspection judgment

1) On May 10, 2013, the Plaintiff filed an application for a final inspection judgment seeking confirmation as to the fact that the rehabilitation security right for MTG is KRW 5,542,058,949 in consideration of the distribution of senior rehabilitation security rights.

2) On February 7, 2014, the part of the Plaintiff’s application seeking confirmation of KRW 549,752,500 among the Plaintiff’s rehabilitation security rights was already established and thus there is no legal interest in seeking confirmation. As to the part seeking confirmation of KRW 9,576,515,690 for the remaining rehabilitation security rights, this case’s real estate shall be prohibited resale for ten years, and Gyeonggi-do shall have the status to recover the difference between the disposal price and the acquisition cost at the time of resale through provisional registration of ownership transfer in its name, and it is reasonable to calculate the acquisition cost based on the acquisition cost. The lower court determined that even if part of the above principal and interest of the loan was offset against the Plaintiff’s deposit claim against the Plaintiff, it shall be recognized as a rehabilitation security right. Accordingly, the lower court rendered a final inspection decision that the Plaintiff’s rehabilitation security right to the MTG is KRW 1,40,986,329,292 (hereinafter “instant judgment”).

3) On March 10, 2014, the Plaintiff, who was dissatisfied with the instant final inspection judgment, filed the instant lawsuit against the Nonparty, the administrator of Mtex, against the Nonparty.

(d) Rehabilitation procedures, etc. that are progress after an application for the final claim inspection judgment is filed.

1) The Suwon District Court decided to authorize the rehabilitation plan on September 12, 2013 with respect to Mtex, and Mtex attempted to repay rehabilitation security rights and rehabilitation claims through the securitization of the leased building in accordance with the above authorized rehabilitation plan, but the implementation of the plan is not expected, but is the surviving company that mainly engages in the ownership and lease of the leased building and other new companies that engage in the business of designing, manufacturing, and selling semiconductors and electronic devices, and the company was divided into a new company that is engaged in the business of designing, selling, and selling semiconductors and electronic devices, under the premise that the company is divided into bonds with warrants, the sale of the company is promoted through the issuance of the bonds with warrants and the proceeds from the sale of the company

2) On May 29, 2014, Mtex entered into a bond acquisition contract with Mtex Holdings with the purport that the said company takes over KRW 98.8 billion with the bonds with warrants issued by Mtex. The said bond acquisition amount was revised with the rehabilitation security right of KRW 91.5 billion with the financial resources for repayment, and the rehabilitation plan was revised with the content that the said amount would be repaid at once, and was decided to authorize the revised rehabilitation plan by the Suwon District Court on August 20, 2014.

3) Afterwards, MTV repaid most of the remaining rehabilitation security rights and rehabilitation claims except for some rehabilitation security rights on which separate collateral exists and the obligation to return the deposits for lease to be repaid with new deposits at the expiration of the lease term on the premise of the existence of the lease term. On October 17, 2014, the company completed the procedures for division of the company (i.e., the company’s trade name, which mainly engages in the ownership and lease of the leased building with the division, was changed to MTV deposit, and the name of the newly incorporated company engaging in the business of designing, manufacturing, and selling semiconductors and electronic devices was the Defendant. At the time of division, the Defendant, as the newly incorporated company, bears the previous liabilities, etc. related to the rehabilitation procedures, and succeeds to the status of the

4) On October 31, 2014, the rehabilitation procedure for Mtex remains likely to be partially realized, but it is inevitable to expect that the contingent debt to be borne by the new company after division will be repaid through the business activities of the newly incorporated company in the future. If the rehabilitation procedure is completed early, it would rather increase the possibility of repayment through the normalization of business activities. Considering various circumstances, as a result of seeking an opinion on the termination of the rehabilitation procedure for Mtex, it is reasonable for the Suwon District Court Management Committee to conclude the rehabilitation procedure for Mtex early, and the creditors agree to the termination of the rehabilitation procedure. As such, Mtex is concluded on the ground that it does not seem to have any particular obstacle to the implementation of the rehabilitation plan remaining after the completion of the repayment in accordance with the rehabilitation plan.

5) Following the completion of the rehabilitation procedure for MTB, the Defendant taken over the instant lawsuit in the first instance trial.

E. The process of acquiring the instant real estate by MTTN

1) On May 4, 2006, Gyeonggi-do announced the supply announcement under Article 2006-345 of the Gyeonggi-do’s Notice and Article 2006-50 of the Gyeonggi-do’s Gyeonggi-do Local Public Corporation Notice to supply urban support facilities within a housing site development zone, and publicly announced “the supply guidelines of this case” containing the following:

The attached Table 13) General research site and research support site included in the main text are limited to the resale for 10 years from the date of the registration of the preservation of the building in order to prevent the business operator who is supplied with the purpose of the land premium for the purpose of promoting the purchase of the land and promoting the high-tech industry. 16) In order to ensure the performance of the obligation after the transfer of the ownership transfer, Gyeonggi-do can set up a mortgage on the property of business by taking the interest of the business operator at the time of the transfer of the ownership of the business site, the estimated penalty of the 11), and the total amount of the developed land pension of the 12) as the secured claim.

2) The nine companies, including MTTP, were selected as eligible for preferential negotiations by filing an application for purchase with the Gyeonggi-do as set out in the above supply announcement and supply guidelines, and entered into a contract for the purchase of a site including the instant land with Gyeonggi-do (hereinafter “instant contract”). The main contents of the instant contract are as follows.

(4) In the event that the sale and purchase contract for a building is completed for the purpose of the sale and purchase of the building, and the sale and purchase contract for the building is completed for the purpose of the sale and purchase of the building at the time of the sale and purchase of the building at the time of the sale and purchase of the building at the time of the sale and purchase of the building at the time of the sale and purchase of the building at the time of the sale and purchase of the building at the time of the building, the sale and purchase contract for the building at the time of the sale and purchase of the building at the time of the building at the time of the sale and purchase shall be concluded for the sale and purchase of the building at the time of the sale and purchase of the building at the time of the building at the time of the sale and purchase and the sale contract for the building at the time of the sale and purchase of the building at the time of the building at the time of the acquisition and sale and the sale and sale contract for the building at the time of the sale and sale and sale of the building at the time of the sale and sale contract to the third party.

3) On July 30, 2010 regarding the instant land, the ownership transfer registration was completed in the MTT and eight companies, and at the same time, Gyeonggi-do completed the provisional registration of the right to claim a transfer of the entire co-owner’s share of the said co-owner. As to the instant building, registration of ownership preservation was completed in the future of the company, such as MTT, on December 19, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, 8 through 13, 15, Eul evidence 4, 6, 9, 12 through 15, and the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. The defendant's assertion

1) On the premise that the value of the instant real estate is about KRW 72.2 billion, the amount actually paid in cash as a rehabilitation secured creditor and rehabilitation creditor according to the revised rehabilitation plan is KRW 3,926,173,374. However, in the event that the amount of the instant real estate is considered KRW 91,558,00,00 as the Plaintiff’s assertion, the Plaintiff would be paid in cash only for KRW 3,577,440,914, which is the amount of rehabilitation security right recognized to the Plaintiff, and as a result, the Plaintiff could not receive in cash based on the rehabilitation claim. As such, the latter would result in the Plaintiff’s failure to receive in cash, compared to the former, KRW 348,732,460 (=3,926,174), KRW 3,577,40,914). Moreover, even if the amount of the instant real estate is increased by the Plaintiff’s claim, the amount of the instant real estate would be reduced to the Defendant’s KRW 3647.

2) As to the secured value of the instant real estate, even if the instant land and buildings are separated into KRW 19,603,043,293 on the basis of the acquisition cost, and the instant building is assessed as KRW 64,090,60,000 on the basis of the appraised value, in such a case, the Plaintiff’s rehabilitation security right against the Defendant is merely KRW 2,527,397,065. In light of the amount of KRW 3,926,173,374, the amount paid in cash to the Plaintiff early according to the revised rehabilitation plan is deemed to be KRW 3,926,527,397,065, the Plaintiff was paid in cash only for KRW 2,527,397,065, and cannot be paid in cash on the basis of the rehabilitation claim, and thus, it cannot be paid in cash on the basis of the rehabilitation claim (i.e., KRW 3,398,76,374,2757,9).

3) Ultimately, even if the Plaintiff’s claim increases the amount of rehabilitation security right upon confirmation of the Plaintiff’s rehabilitation security right, the Plaintiff cannot achieve the increase of economic benefits that the Plaintiff wants to gain through the instant lawsuit. If the nature of the instant lawsuit is viewed as a lawsuit for confirmation, the dispute cannot be a means for the ultimate settlement of the dispute. Thus, the instant lawsuit filed by the Plaintiff cannot be a means for the realization of the purpose of lawsuit, in that it does not constitute a means for the realization

B. Determination

On the other hand, the rehabilitation plan for △△ takes into account the priority of the rehabilitation security right compared to the general preferential rehabilitation claim or other rehabilitation claims (Article 217(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act"). The confirmation amount of the rehabilitation security right that the plaintiff seeks through the lawsuit in this case is extended to the confirmation amount of the rehabilitation security right that is most considered in the order of priority in the rehabilitation plan. Even if the confirmation amount of the rehabilitation security right is reduced depending on the increase in the amount of the rehabilitation security right, the confirmation amount of the rehabilitation security right should be determined at the time of the commencement of the rehabilitation procedure. The determination amount of the rehabilitation security right should be determined at the time of the commencement of the rehabilitation procedure. The circumstance asserted by the defendant is merely the situation after the commencement of the rehabilitation procedure. In addition, even if the plaintiff's addition of the rehabilitation security right is recognized through the lawsuit in this case, it is difficult to view that the plaintiff would be more unfavorable than the previous rehabilitation procedure in this case. In light of the above safety change by the defendant cannot be accepted.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiff's assertion

A) The final inspection judgment of this case was conducted on the premise that it is reasonable to evaluate the objective appraised value of the real estate of this case as KRW 72.29,615,377, in consideration of the fact that the resale of MTTTT is prohibited for ten years, and that MTTT would have the right to recover the difference between the disposal price and the acquisition price, and that the Gyeonggi-do would have the right to recover the difference between the disposal price and the acquisition price.

B) However, in light of the purport of corporate rehabilitation procedures, the criteria for assessing the value of the real estate of this case, which is the value appraised on the premise of corporate maintenance and rehabilitation. The restriction on resale of the land of this case, shall be cancelled after the lapse of 10 years. It is difficult to view that the provisional registration of transfer of ownership in Gyeonggi-do, which was completed on the land of this case, was completed in order to recover the resale profits. There is no possibility of actually resale of the land of this case before the lapse of 10 years, which is the period of restriction on resale, and the method of assessing the value of the real estate of this case based on the acquisition cost of △△△, is not a normal valuation method, but a method of assessing the value of the real estate of this case based on the acquisition cost of △△, which is a method of assessing the value of the real estate of this case under the premise of the continuation of MTT, the objective value of the real estate of this case

C) Even if the Gyeonggi-do re-purchases the instant real estate from Mtex due to the violation of the prohibition against resale of Mtex, the object of the re-purchase by Mtex is limited to the instant land which is not the entire real estate of this case. In the instant building where its retention is socially and economically reasonable, the value of the instant building can be purchased at the option of Gyeonggi-do based on the appraised value. As such, regarding the instant building, the value shall be calculated based on the appraised value as at the time of the decision on commencing the rehabilitation procedure, rather than the acquisition cost, based on the appraised value as at the time of the decision on commencing the rehabilitation procedure. Accordingly, even if Mtex resell resells the instant real estate on or before December 19, 2021 in violation of the resale restriction agreement under the contract of this case, the value of the instant real estate should be 1963,043,293,300,000 won, 360,000 won, 36,000 won and 3639,36,06.

D) Therefore, the above final inspection judgment is unfair, and if rehabilitation security rights are re-calculated by evaluating that the objective value of the pertinent real estate is KRW 91.558 million, which is the market price, the Plaintiff’s rehabilitation security right against the Defendant is KRW 5,495,479,960 (i.e., KRW 2,566,854,955 due to the second-class collective security right + KRW 2,928,625,05 due to the fourth-class collective security right). Of these, the portion of KRW 549,752,986,329 was re-determined, and the remainder of KRW 3,504,741,741,979,960 (= KRW 5,495,479,960), KRW 549,50,502,140,984,329) should be additionally recognized as rehabilitation security rights.

2) The defendant's assertion

A) In the instant rehabilitation procedure on October 2014, MTN divided MTF into MTFC and the Defendant according to the rehabilitation plan. In the process, the instant real estate was incorporated into MTFC’s assets, and it does not belong to the Defendant. Therefore, the Plaintiff’s claim premised on the ownership of the instant real estate is without merit.

B) If the disposal of the subject matter of rehabilitation security rights entails a substantial burden to be succeeded to by the acquisitor, it shall be calculated based on the actual exchange value at the time of the decision to commence rehabilitation procedures. Since the restriction on resale between 10 years and the disposal thereof is set upon the burden to lose ownership and transfer proceeds from resale to Gyeonggi-do, considering the real exchange value reflecting the above burden, the acquisition cost should be deemed the value of the subject real estate in consideration of the actual exchange value reflecting the above burden. In addition, the instant real estate was planned to be early securitization in accordance with the first rehabilitation plan. Since September 2014, 2014, MTT, which is a MTT, a position to pay a large amount of interest worth KRW 7.2 billion to the limited company specialized in Gobble systems every year, has to prepare repayment funds by means of early securitization of the instant real estate or sale, etc.

C) It is unreasonable to assess the value of the instant real estate by taking into account the situation in which the existence of a contract restricting resale according to the instant contract does not seem to exist, as alleged by the Plaintiff, due to the problems such as the ambiguity of the corporate value, etc. arising from the Plaintiff’s assertion, it is difficult to apply the concept of the continuous business value based on the Income Exchange Act.

D) If the Plaintiff’s value of the instant real estate is deemed to be KRW 91,558,00,00 based on the market value of the real estate as the Plaintiff’s primary assertion, the amount of the Plaintiff’s rehabilitation security right against the Defendant is to be KRW 3,577,440,914 (i.e., KRW 2,847,379,379,149 + KRW 730,761,7655 (i.e., KRW 1,586,70,777,440,914). In this case, the amount additionally fixed as the rehabilitation security right is to be KRW 1,586,705 (i.e., KRW 3,505, KRW 567, KRW 29657, KRW 4057, KRW 9757, KRW 29656, KRW 57505, KRW 2965, KRW 2965, KRW 397,2975,2945,295,

E) In a case where the procedure for amending the rehabilitation plan, such as the revised rehabilitation plan in the instant rehabilitation procedure, following the commencement of the rehabilitation procedure, takes place after the commencement of the rehabilitation procedure, the amount including all the interest and overdue interest accrued after the commencement of the rehabilitation procedure, should be deemed as taking precedence over the rehabilitation security right. Nevertheless, the Plaintiff calculated the amount of the Plaintiff’s fourth-class rehabilitation security right by omitting approximately KRW 5.9 billion, which is the interest accrued after the commencement of other second-class rehabilitation secured creditors, including the Plaintiff, at least KRW 2.8 billion, after the commencement of the rehabilitation procedure.

F) Considering the above circumstances, the final inspection judgment in this case, which determined the Plaintiff’s rehabilitation security right by calculating the value based on the acquisition cost of the instant real estate, is justifiable.

B. Determination

1) Relevant legal principles

A) Supreme Court precedents

In assessing the company's property after the commencement of rehabilitation procedures, the objective criteria for the evaluation shall be the so-called continuing corporate value, which is the value assessed on the premise of the company's maintenance, rehabilitation, that is, the liquidation value under the premise of the company's dissolution, liquidation, i.e., the dissolution and disposal of the company. Thus, the continuing corporate value shall not be based on the disposal value of each individual property, not on the basis of the disposal value of the company's profit. Since the continuing corporate value depends on the profitability of the company, it can be deemed a standard method for the evaluation of the profit value under the Income Exchange Act. However, it is sufficient if it is possible to express the objective value considering the continuity of the company even if it is by the evaluation method by the cost of refinancing or by the ratification value (see Supreme Court Order 90Ma954, May 28, 19

B) The method of evaluating the value of the company's rehabilitation under the Japan's Corporate Restructuring Act

Since there is no express legal provision on the method of appraisal of the value of the company rehabilitation procedure in Korea, this paper examines the method of appraisal of the value of the company rehabilitation procedure in Japan with similar legal system in Korea.

(1) Article 177(2) of the Japan’s Act amended in 1967 provides that “The valuation of property shall be deemed to continue the business of the company,” and the Japan’s Act amended in 2002 deleted the above provision, and Article 83(2) provides that “The valuation of property shall be based on the market price at the time of commencement of the rehabilitation procedure.” In light of the purport of the above provisions, the Japan’s Act can be interpreted as having adopted the valuation of property value in the process of reorganization of the company, a market price assessed on the premise of the continuation of business activities and the maintenance of the company’s property, rather than the disposal value or liquidation value at the time of immediate disposal on the premise of the dissolution of the company’s property.”

(2) Meanwhile, Article 2(10) of the current Corporate Restructuring Act of Japan stipulates that the value of the collateral related to the rehabilitation security interest shall be assessed as the market value, and Article 48 of the Corporate Restructuring Rule provides that the method of evaluating the value of the collateral shall be assessed as the market value, and Article 79(2) of the Japanese Civil Renovation Rule provides that "the transaction comparison method, profit refund method, cost standard method, and other methods shall be used appropriately in accordance with the place, environment, type, size, structure, etc. where the real estate in question is located, shall be assessed as the market value in accordance with specific cases with regard to the value of the collateral."

2) On the basis of the above legal principles of the Supreme Court precedents, comprehensively taking into account the purport of the whole argument as to this case and the basic facts as seen earlier, MTTF cannot resell the land of this case between December 19, 201 and ten years from the date of registration of initial ownership preservation concerning the building of this case (Article 13 of the supply guidelines of this case), and if it is violated, Gyeonggi-do may exercise its right of rescission on the ground of such violation (Article 12(1)8 of the supply guidelines of this case), and if Gyeonggi-do exercises its right of repurchase on the land of this case on the ground of revocation, MTG would lose its ownership of the land of this case. However, MTG would only be refunded from Gyeonggi-do to Gyeonggi-do the amount obtained by adding interest to the remaining amount excluding the down payment from the purchase price of this case until Gyeonggi-do was cancelled (Article 14 of the above contract), and Gyeonggi-do can recognize the fact that the provisional registration of ownership transfer is completed to secure the right of rescission and re-purchase (Article 14(1).

3) However, in light of the following circumstances, which can be seen by comprehensively taking account of the overall purport of the arguments as seen earlier, it cannot be deemed that MTTG was a plan to resell the instant real estate upon the occurrence of enormous damages arising from the violation of the agreement on the restriction on resale of the instant contract at the time of the decision to commence the instant decision to commence the rehabilitation procedure. Thus, the final inspection judgment of this case, which confirmed the Plaintiff’s rehabilitation security right on MTTG, by calculating its value on the basis of the acquisition cost of the instant real estate on the premise that MTG, which reflects the risk of the restriction on resale and the limitation on resale of the instant real estate at 10%, including the loss of ownership due to the violation

(1) Article 222(1) of the Debtor Rehabilitation Act provides, “When the value of the debtor’s business when the debtor’s business is liquidated is more than that of the debtor’s business when the debtor’s business is continued, the court may permit the preparation of a draft rehabilitation plan, the contents of which are liquidation (including transfer of all or part of the business, physical division),” and Article 286(2) of the same Act provides, “When it is obviously evident that the value of the debtor’s business before and after the draft rehabilitation plan is submitted or when the debtor’s business is liquidated is more than that of the debtor’s business when the debtor’s business is continued, the court may decide to discontinue the rehabilitation procedures at the request of the custodian or ex officio before the draft rehabilitation plan is approved.” In light of the aforementioned provisions, the value of the debtor’s business when the debtor’s business is liquidated (hereinafter referred to as “contributing value”) and the value of

② The purpose of the Debtor Rehabilitation Act, which regulates both rehabilitation procedures, bankruptcy procedures, and individual rehabilitation procedures, is to seek efficient rehabilitation of the debtor or his/her business against the debtor facing distress due to financial difficulties by adjusting legal relations among interested parties, including creditors, shareholders, equity right holders, etc. (Article 1 of the Debtor Rehabilitation Act). In light of the aforementioned purport of the Debtor Rehabilitation Act, in determining rehabilitation security rights under the Debtor Rehabilitation Act, the appraisal of collateral is reasonable to consider the corporate value of the debtor’s continuous business. Thus, the assessment of collateral on the instant real estate, which is a major asset, should be conducted on the premise that MTTP continues to hold the instant real estate and conduct business activities, barring any special circumstance to deem that MTT would sell the instant real estate itself.

③ The instant land is supplied by Gyeonggi-do for the activation and promotion of the Pan River, and the building of this case is constructed on the ground at the time of the decision to commence the rehabilitation procedure in this case, and in light of the MTTP’s rehabilitation plan, which mainly engages in the design, manufacture and sale of semiconductors and the real estate leasing business, it seems that MTP plans for rehabilitation on the premise that the existing business is continuing using the instant real estate and carrying out profit-making activities, and that MTP plans for financing through securitization other than real estate sale, but does not plan the sale of the instant real estate itself.

④ Rather, in light of the terms and conditions of the agreement on the restriction on resale of the instant contract, if Mtex sells the instant real estate within the period of the agreement on the restriction on resale, it may be a situation where the Gyeonggi-do would be subject to the cancellation of the sales contract for the instant land, and in the case of the largest music, the building newly constructed on the instant land should be removed and restored to its original state, and then deliver the instant real estate to Gyeonggi-do. As such, it is not reasonable to sell the instant real estate itself within the period of the agreement on resale with the burden of economic loss as above.

(5) In addition, in cases where Mtex sells the said real estate within the period of restriction on resale, Gyeonggi-do may purchase the instant land through a provisional registration established on the instant land, and it does not seem that there is a purchaser of the instant land, which is apparent in the registration that Mtex could not be transferred without acquiring its ownership from Mtex.

④ Meanwhile, various methods of asset-backed securitization exist, other than the sale method of the instant real estate itself, which do not violate the agreement on the restriction on resale. In fact, MTTF promoted the sale of the instant real estate through the issuance of bonds with warrants and repaid the rehabilitation security rights and rehabilitation claims with the proceeds therefrom, on the premise that the instant real estate is divided into a surviving company which mainly engages in the ownership and lease of leased buildings and a new company which is engaged in the design, manufacture, and sale of semiconductors and electronic equipment into a new

4) Thus, in calculating the value of a collateral related to the confirmation of a rehabilitation security right to the instant real estate, the sale of the instant real estate itself, which reflects 100% risk such as restriction on resale under the instant contract and loss of ownership therefrom, shall not be based on the market price of the instant real estate, which can be deemed as a continuous business value at the time the rehabilitation procedure commenced. In full view of the overall purport of the pleadings as a result of the entry in the evidence No. 7 and the fact-finding reply by the light appraisal corporation, the appraisal value of the instant land as of March 31, 2013, as of March 31, 2013, around the time the commencement of the rehabilitation procedure commenced, can be recognized as KRW 27,467,400,60,000, the appraisal value of the instant building as of March 64, 2090, the appraisal value of the instant real estate was KRW 91,58,000,000,000 won (=27,4600,000 won).

5) Furthermore, based on the above appraisal value deemed as the market price, the Plaintiff’s rehabilitation security right distribution amount is calculated by comprehensively taking account of the purport of the entire pleadings as seen earlier, as indicated below.

50-6770-678, 19777, 205-7777, 207, 205-77, 207, 205-77, 207, 205-77, 205-7, 977, 205-7, 197, 205-77, 197, 207, 205-7, 1967, 197, 205-7, 197, 207, 205-7, 197, 197, 205-7, 197, 205-7, 197, 205-7, 196, 205-7, 196, 196, 394, 794, 3965, 2565, 25965, 2564

6)Korea Development Bank;

6) Therefore, the Plaintiff’s rehabilitation security right against the Defendant is KRW 5,495,479,960 (i.e., KRW 2,56,855 on the claim of December 30, 201) + KRW 2,528,625,00 on the claim of June 29, 2012; KRW 549,752,50 on the part of KRW 1,440,986,329 was recognized in the final inspection judgment of this case; and thus, the remainder of KRW 3,504,741,131 (i.e., KRW 5,495,479,960 - KRW 549,752,502,500 - 1,449,329,329) should be additionally recognized as rehabilitation security right.

C. Judgment on the defendant's argument

1) The assertion that the instant real estate was not owned by the Defendant

A) Article 141(1) main text of the Debtor Rehabilitation Act provides that “The scope of a right of retention, etc. exists in the debtor’s property at the time rehabilitation procedures commence, which is a property claim against any person other than the debtor arising prior to the commencement of rehabilitation procedures, and that is secured by a lien, pledge, mortgage, security by means of transfer, provisional registration security right, movable property, claim, etc., which exists in the debtor’s property at the time of rehabilitation procedures shall be a rehabilitation security right.” Therefore, for recognition as a rehabilitation security right, it is sufficient that the debtor’s property has a security right, such as a lien, etc., and even if a security right under the substantive law is extinguished due to the loss of collateral thereafter, it does not affect the continuation of the rehabilitation procedure (see, e.g., Supreme Court Decision

B) We examine the following circumstances in light of the aforementioned legal principles: (a) the Plaintiff’s right to collateral security was established on the instant real estate owned by MTTN at the time of the commencement of the rehabilitation procedure for the △△△ Party’s construction of the instant real estate; (b) the Defendant, a new company that established the △△ Party, was obligated to succeed to the status of a party in the relevant lawsuit; (c) the Plaintiff’s claim of this case is a petitioner seeking additional confirmation of the amount recognized as a rehabilitation security right on the premise that MTN did not violate the resale restriction agreement under the instant contract; (d) in other words, the Defendant did not own the instant real estate at present, on the premise that the Plaintiff did not dispose of the instant real estate while continuing the business. In light of the foregoing, the Defendant’s assertion is without merit.

2) The assertion that interest shall be included in the rehabilitation security right after the rehabilitation procedure of the instant case begins

In light of the following, Article 141(1) of the Debtor Rehabilitation Act provides, “The rehabilitation security right is a property claim against any person other than the debtor who has arisen from the cause prior to the commencement of rehabilitation procedures, which is secured by the debtor’s property at the time of the commencement of rehabilitation procedures, and is limited to that arising from the commencement of rehabilitation procedures until the day prior to the commencement of rehabilitation procedures with respect to the claim for interest, non-performance of obligation, damages, or penalty, etc., and the rehabilitation plan cannot be deemed effective for any rehabilitation creditor and any rehabilitation secured creditor against whom the claim for confirmation of right is pending at the time of the decision to authorize the rehabilitation plan, and the right prescribed in the rehabilitation plan is recognized retroactively from the time of the decision to authorize the rehabilitation plan.” In light of the above, the calculation of the confirmation amount of the rehabilitation security right should be based on the total sum of the principal of the claim and the interest prior to the commencement of rehabilitation

D. Sub-committee

Therefore, among the final inspection judgment in this case, the part that “the Plaintiff’s rehabilitation security right to MTT broadcast is KRW 1,440,986,329” should be changed to “the Plaintiff’s rehabilitation security right to MTT broadcast is KRW 4,945,727,460 (i.e., KRW 1,440,986,329 + KRW 3,504,741,131 which is determined additionally in the final inspection judgment in this case).”

4. Conclusion

If so, the plaintiff's claim should be accepted on the grounds of its reasoning. However, the judgment of the first instance is unfair on the grounds of its conclusion. Therefore, the plaintiff's appeal is accepted and the judgment of the first instance is modified as above.

Judges Cho Jong-jin (Presiding Judge)

(1) The Plaintiff’s written application for change of the purport of the claim and the cause of the claim as of September 28, 2016, stating, “The part to be considered as follows shall be revoked on February 7, 2014, and the rehabilitation security rights for the Plaintiff’s obligor MTTP Co., Ltd. shall be determined as KRW 3,504,741,131, and this is the same purport as the disposition.”

2) The basis for calculation of KRW 1,440,986,329: The amount of KRW 20,558,219,686, which remains after deducting KRW 51,691,69,695,691, out of KRW 72,249,615,377, the acquisition cost of the instant real estate was deducted from the total amount of KRW 51,69,686,219,686, which was the sum of the principal and interest of the instant real estate as of December 30, 2011 by the Plaintiff; and the amount of KRW 2,56,854,955, which was divided in proportion to the total amount of each principal and interest of one bank, Korea Telecommunication Bank, and foreign exchange bank, which was in the same order, was calculated as KRW 1,99,738,829, which was calculated by the Defendant

Note 3) = 22,094,469,977 Won - Mtex’s sale of a part of the instant land to Alph chips Co., Ltd. 2,491,426,684 won

4) Even according to the Defendant’s calculation, the above amount of money is KRW 536,658,236 (=2,527,397,065 - KRW 549,752,50 - KRW 1,440,986,329). The above KRW 536,657,236 claimed by the Defendant appears to be erroneous in writing, but it should be followed as claimed by the Defendant.

5) The concept of asset-backed securitization under the Asset-Backed Securitization Act is as follows: (a) it is difficult to readily conclude that the term “asset-backed securitization” in the instant rehabilitation plan is completely identical with the legal concept as seen earlier; (b) it appears that the overall purport is distinguishable from the sale of the asset. The term “asset-backed securitization” means any act falling under any of the following items: (a) The term “asset-backed securitization” means an act falling under any of the following items: (a) a special purpose company issues asset-backed securities upon the transfer of securitization assets from the originator; (b) pays principal and interest or dividends on the asset-backed securities by using profits or loans from the management, operation, or disposal of the relevant securitization assets after obtaining a trust from the originator, operation, or disposal of the relevant securitization assets; and (c) a series of acts of trust business entities issuing asset-backed securities in accordance with the transfer of proceeds or asset-backed securities to the special purpose company or other asset-backed securities by taking advantage of the borrowed assets from the asset-backed assets issued by it in accordance with the management, operation of the relevant securitization assets or trust or other asset-backed securities:

6) On June 28, 2013, the Korea Development Bank changed the collateral security holder to the above company by transferring the claim against the collateral security to a special purpose company with Gobble.