2014Gada2723 Action Demurrered against the final claim inspection judgment

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1. OO;

A person shall be appointed.

January 15, 2015

February 5, 2015

1. Cheongju District Court shall authorize judgment on the inspection and confirmation of rehabilitation claims 2013 Mad-14 dated January 2, 2014.

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

The judgment on rehabilitation claim under Paragraph (1) of this Article shall be revoked. The Plaintiff’s rehabilitation of Defendant ○○○ shall be revoked

Security rights shall be confirmed to be KRW 100,000,000.

1. Facts of recognition;

A. On April 14, 2011, the Plaintiff entered into an agency contract with Defendant ○○, under which he/she received and sold charcoal products produced by the said Defendant. Around that time, the Plaintiff paid KRW 80,000,000 to the said Defendant in total under the name of deposit and advance payment.

B. On November 1, 2011, the Plaintiff lent KRW 20 million to Defendant ○○○○. On November 2, 201, the Plaintiff obtained registration of the establishment of a collateral security (hereinafter “instant real estate”) with respect to the instant real estate with the maximum debt amount of KRW 10 million, including KRW 80 million, KRW 80,000,000,000,000,000 for the aforementioned loans, and KRW 80,000,000,000,000,000,000 per annum 80,384, and KRW 610,000,000,000,000,000. At the time of the establishment of the collateral security right, the compulsory auction was voluntarily conducted with the Cheongju District Court’s 2011,1306,014,000,000,000.

C. On February 20, 2013, Defendant ○○○○ filed an application for commencement of rehabilitation proceedings (hereinafter “instant rehabilitation proceedings”) with the Cheongju District Court 2013dan2, and received a decision to commence rehabilitation proceedings on April 25, 2013.

D. In the instant rehabilitation procedure, the Plaintiff reported KRW 100 million of the instant secured claim as a rehabilitation security right. However, the Defendants raised an objection on the ground that the act of creating the instant secured claim constitutes an act that can be denied under Article 100(1)3 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) and the act of setting the said secured claim constitutes an act that could be denied under Article 100(1)3 of the said Act

E. Accordingly, on July 22, 2013, the Plaintiff filed a final claim inspection judgment with Cheongju District Court Decision 2013Ma14, and asserted that the secured debt of the instant right constitutes a rehabilitation security right. However, the said court rendered a decision to determine that the Plaintiff’s rehabilitation security right against Defendant ○○○ is KRW 20 million and that the act of setting up a collateral for KRW 80 million, excluding KRW 20 million newly borrowed at the time of the establishment of the instant right to collateral security was suspended after payment was suspended. As such, the act of setting up a collateral is a collateral for the existing obligation after payment was suspended. Therefore, it may be denied under Article 100(1)3 of the Debtor Rehabilitation Act.

[Grounds for Recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion (1) Inasmuch as the creation of the instant mortgage was conducted one year prior to the date of application for commencement of the instant rehabilitation procedure, the avoidance power against this was extinguished.

(2) At the time of the establishment of the instant right to collateral security, the Plaintiff did not know that the establishment of the said right to collateral security would prejudice the equality of other rehabilitation creditors or rehabilitation secured creditors of Defendant ○○○○. Therefore, the said right to collateral security cannot be denied.

(b) Article 100 of the Debtor Rehabilitation Act (U.S.)

(1) Any custodian may deny any of the following acts for the debtor's assets after rehabilitation procedures commence:

3. Any act that is performed by a debtor with respect to the provision of a security or the extinguishment of an obligation within 60 days prior to the suspension of payment, etc. or that does not belong to the debtor's obligations or the method or time of such act does not belong to the debtor's obligations: Provided, That the same shall not apply to cases where the debtor is unaware that at the time of such act that the debtor would undermine equality with other rehabilitation creditors or rehabilitation secured creditors (where such act is performed after the suspension of payment, etc., limited to cases where the suspension of payment, etc. is not known).

C. Determination

(1) Since Defendant ○○○○ offered security not belonging to his duty by completing the registration of creation of the instant collateral security to secure the existing obligation after the commencement of the auction (suspension of payment) on the instant real estate, in principle, the act of creation of the said collateral security right constitutes an act of denial as provided by Article 100(1)3 of the Debtor Rehabilitation Act. (2) Even in a case where the debtor offered security not belonging to his duty after the suspension of payment, if the creditor did not know that his act would prejudice the equality with other rehabilitation creditors or rehabilitation secured creditors of the debtor at the time of the act and did not know that there was the suspension of payment, it cannot be denied, and even if the act was performed one year prior to the date of the commencement of the rehabilitation procedure, it cannot be viewed as an exception to the act of creation of the instant collateral security right even if the Plaintiff did not know that the establishment of the instant collateral security right would prejudice the equality with the other rehabilitation creditors or rehabilitation secured creditors of Defendant ○○ upon the application for the commencement of the rehabilitation procedure.

3. Conclusion

Therefore, the rehabilitation claim inspection judgment as stated in the Disposition No. 1 is legitimate, and it is decided as per the Disposition.

Judges Choi Jong-chul