Whether a claim for damages incurred by delay in performing the obligation to repay with respect to wages, retirement allowances, and accident compensation for workers arising before the declaration of bankruptcy constitutes an estate claim under Article 473 subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act (affirmative)

[Majority Opinion] The purport of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides for “the right to claim arising from the act performed by a trustee in bankruptcy with respect to a bankrupt estate” as an estate claim is to ensure that the trustee in bankruptcy frequently reimburses the other party’s claim arising from the act performed in the course of performing his/her duties based on the right to manage and dispose of the bankrupt estate and to protect interested parties, thereby proceeding with bankruptcy proceedings fairly and smoothly. As such, “act performed by the trustee in bankruptcy with respect to the bankrupt estate” includes not only juristic act performed by the trustee in the course of performing

Therefore, the trustee in bankruptcy is obligated to pay wages, retirement allowances, and accident compensation (hereinafter “wages, etc.”) to workers who are estate claims in the course of performing his/her duties. Thus, the employee’s right to claim damages resulting from delay in fulfilling the above obligation after the bankruptcy is declared constitutes estate claims under Article 473 subparag. 4 of the Debtor Rehabilitation Act, which constitute “the right arising from the act committed by the trustee in bankruptcy with respect to

[Concurring Opinion by Justice Kwon Soon-il] Examining the legal nature of workers’ wage, etc. in bankruptcy proceedings in full view of the legislative background and purport of Article 38 of the Labor Standards Act, Article 12 of the Guarantee of Workers’ Retirement Benefits Act, Article 32 of the former Bankruptcy Act (amended by Act No. 6111 of Jan. 12, 2000), and Article 38 subparag. 10 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005) and Article 38 subparag. 10 of the former Bankruptcy Act, the bankruptcy trustee is obligated to pay for estate claims without resorting to bankruptcy proceedings (Article 475 of the Debtor Rehabilitation Act), and damages for delay are subordinate rights arising at a certain rate, premised on the existence of the original claim, which is the main claim (Article 475 of the same Act). Upon examining the following, claims for workers’ wage, etc. constitute “worker’s wage compensation, retirement allowance and estate claims,” regardless of whether or not damages for delay occurred before or after the declaration of bankruptcy.

[Dissenting Opinion by Justice Shin Young-chul, Justice Min Il-young, Justice Kim Chang-suk, and Justice Jo Hee-de] Article 446(1)2 of the Debtor Rehabilitation Act provides for “the amount of damages and penalty resulting from nonperformance after a declaration of bankruptcy” as subordinate bankruptcy claims. The damages and penalty stipulated in this context refer to the damages and the claim for penalty arising after the declaration of bankruptcy in relation to the obligor’s payment of damages or the payment of penalty on a regular basis due to the nonperformance of his/her property rights prior to the declaration of bankruptcy. Therefore, unless otherwise provided for in the Debtor Rehabilitation Act, the claims for damages arising after the declaration of bankruptcy regarding the obligor’s wages, etc. arising from a cause arising before the declaration

Articles 1, 382(1), 384, 423, 424, 446(1)2, 473 subparag. 4, 10, 475, 476, and 505 of the Debtor Rehabilitation and Bankruptcy Act, Article 38 of the Labor Standards Act, Article 12 of the Guarantee of Workers' Retirement Benefits Act, Article 32 of the former Bankruptcy Act (amended by Act No. 6111 of Jan. 12, 200), Article 38 subparag. 10 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of Mar. 31, 2005)

Supreme Court Decision 2002Da53865 Decided November 12, 2004 (Gong2005Sang, 1) Supreme Court Decision 2006Da2940 Decided March 14, 2008 (Gong2008Sang, 580) Supreme Court Decision 2009Da38551 Decided June 24, 2011

Plaintiff (Appointed Party) (Attorney Park Jong-hee et al., Counsel for the plaintiff-appointed party-appellant)

The defendant in bankruptcy, who is the debtor corporation, the trustee in bankruptcy, the trustee in charge of the Ecogal leisure development of Ecograd Leisure Development

Gwangju High Court Decision 2012Na6621 decided July 10, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The bankruptcy procedures provided for in Part III of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”) are the procedures that enable all creditors to fairly satisfy when the debtor is unable to repay all assets to all creditors due to his/her insolvency status, etc. In the event that the debtor’s bankruptcy grounds exist, when the debtor is declared bankrupt, the right to manage and dispose of the bankruptcy estate belongs to the bankruptcy estate at the time that the debtor is declared bankrupt, and the right to manage and dispose of the bankruptcy estate shall be exclusively vested in the trustee in bankruptcy. Any bankruptcy creditor who holds any right to property arising before the debtor is declared bankrupt is prohibited, in principle, from voluntary repayment of the debtor and the exercise of individual claims by the creditor, and the bankruptcy trustee appointed by the court fairly liquidates the debtor’s assets and distributes dividends (see Articles 1, 382(1), 384, 423, 424, and 505 of the Debtor Rehabilitation Act). In addition, where the debtor’s property claim against the debtor is in a default state prior to the declaration of bankruptcy, among damages claims and penalty arising from such bankruptcy claims, Article 46(1).

However, the Debtor Rehabilitation Act provides for general estate claims under Article 473 and special estate claims under Article 473 for various policy reasons, such as the fair and smooth bankruptcy proceedings and the stability of workers’ livelihood, and stipulates that the trustee in bankruptcy shall repay the estate claims at any time without resorting to the bankruptcy procedures and shall repay the estate claims in preference to the bankruptcy claims (Articles 475 and 476), and the debtor’s “wages, retirement allowances, and accident compensation (hereinafter “wages, etc.”) constitute estate claims regardless of whether the time of occurrence is before or after the declaration of bankruptcy (Article 473 subparag. 10), and the “claim arising from the act performed by the trustee in bankruptcy with respect to the bankruptcy estate” constitutes estate claims (Article 473 subparag. 4).

The purport of the Debtor Rehabilitation and Bankruptcy Act stipulating that “claim arising from the act performed by a trustee in bankruptcy with respect to a bankrupt estate” is to carry out the bankruptcy proceeding fairly and smoothly by protecting the interested parties by requiring the trustee in bankruptcy to frequently repay the other party’s claim arising from performing his/her duties based on the right to manage and dispose of the bankrupt estate. Therefore, it is reasonable to deem that “act performed by a trustee in bankruptcy with respect to a bankrupt estate” includes not only any legal act performed by the trustee in the course of performing his/her duties, but also

Thus, the trustee in bankruptcy is obligated to pay wages, etc. of workers who are estate claims in the course of performing his/her duties at any time after the bankruptcy is declared. Thus, the worker's right to claim damages arising from delay in the performance of such obligation after the bankruptcy is declared falls under the "right arising from the act committed by the trustee in bankruptcy with respect to the bankruptcy estate" under Article 473 subparagraph 4 of the Debtor Rehabilitation Act and it is an estate claim (see, e.g., Supreme Court Decision 2009Da38

According to the reasoning of the lower judgment, the lower court determined that the claim for wages and retirement allowances of the Plaintiff (Appointed Party) and the designated parties (hereinafter “Plaintiff, etc.”) arising prior to the declaration of bankruptcy of the Ecograd leisure development (hereinafter “Ecogd leisure development”) constituted estate claims, and thus, the Defendant’s delayed performance of the obligation to pay wages and retirement allowances of the Plaintiff, etc. as estate claims from October 26, 2012, which was after the declaration of bankruptcy, constitutes estate claims.

In light of the above legal principles, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to estate claims or subordinate bankruptcy claims.

2. Regarding ground of appeal No. 2

Based on its stated reasoning, the lower court determined that the provision on statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (wholly amended by Presidential Decree No. 17981, May 29, 2003) cannot be deemed as infringing upon citizens’ right to trial, property right, etc.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no violation of law as alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Kwon Soon-il as to whether a claim for damages incurred after the declaration of bankruptcy regarding wages and retirement allowances occurred before the declaration of bankruptcy constitutes estate claims, and a dissenting opinion by Justice Shin Young-chul, Justice Min Il-young, Justice Min Il-young, Justice Kim Chang-suk, and Justice Jo Hee-de, and a concurrence with the Majority by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Ko Young-han

4. The separate opinion by Justice Kwon Soon-il as to No. 1 of the Grounds for Appeal is as follows.

The Majority Opinion’s claim for damages incurred to the worker’s wages, etc. after the declaration of bankruptcy constitutes estate claims under Article 473 subparag. 4 of the Debtor Rehabilitation Act, which constitute “a claim arising from the act committed by the trustee in bankruptcy with respect to the bankrupt estate.” However, the Majority Opinion cannot be accepted for

Article 38 of the Labor Standards Act and Article 12 of the Guarantee of Workers' Retirement Benefits Act provide preferential rights to payment within a certain scope of wages, accident compensation, and retirement allowances for the last three months, retirement allowances for the last three years, and accident compensation for workers (Article 38 of the Labor Standards Act, and Article 12 of the Guarantee of Workers' Retirement Benefits Act). In bankruptcy proceedings, these claims are treated as “priority bankruptcy claims” before April 12, 200, but they were treated as “priority bankruptcy claims” [Article 32 of the former Bankruptcy Act (amended by Act No. 6111 of Jan. 12, 200), and thereafter, the total amount of claims, such as wages, etc., were defined as estate claims without distinction between the last three months or the last three-year period of bankruptcy, regardless of whether the period of occurrence of claims, such as wages, etc., due to the amendment of the former Bankruptcy Act, is still maintained after the Debtor Rehabilitation Act enters into force (Article 473 subparag. 10 of the former Bankruptcy Act).

In light of the legislative background and purport of each of the above provisions concerning the legal nature of workers' wages, etc. in bankruptcy proceedings, and the bankruptcy trustee is obligated to pay for the estate claims at any time without resorting to the bankruptcy proceedings (Article 475 of the Debtor Rehabilitation Act), and damages for delay is a subordinate right arising at a certain rate corresponding thereto, premised on the existence of the original principal, which is the principal claim (see Supreme Court Decision 2006Da2940, Mar. 14, 2008, etc.), the claims for damages for delay against workers' wages, etc. shall be deemed as having the nature of estate claims, regardless of whether or not they occurred before or after the declaration of bankruptcy, as provided for in Article 473 subparagraph 10 of the Debtor Rehabilitation Act.

On the contrary, if interpreting the legal nature of the worker's claim for damages for delay with respect to wages, etc. as stated in the majority opinion, the part arising before the declaration of bankruptcy should be exercised by the bankruptcy procedure such as the report of the bankruptcy claim, and the part arising after the declaration of bankruptcy should be claimed directly to the trustee in bankruptcy along with the wages, etc. of the worker who is the main claim, and thus, a separate method of exercising the right should be chosen depending on the period of occurrence. In comparison with the relevant legal interests such as the smooth progress of the bankruptcy procedure and the principle of fairness and the achievement of the policy purpose of protecting the worker's livelihood, it can be said that even if an additional interpretation can achieve the benefit of the fair and satisfactory realization of the total creditor by taking such interpretation theory, the benefit of protecting the worker's livelihood or smooth progress of the bankruptcy procedure, and it is difficult to view that the interpretation of the majority opinion is more beneficial

For the above reasons, I agree with the conclusion of the majority opinion that claims for damages incurred after the declaration of bankruptcy for the wages, etc. of workers are estate claims, but I agree with the separate opinion as to the grounds therefor.

5. Dissenting Opinion by Justice Shin Young-chul, Justice Min Il-young, Justice Kim Chang-suk, and Justice Jo Hee-de as follows.

A. The majority opinion holds that a trustee in bankruptcy is obligated to pay wages, etc. of workers who are estate claims, and that a trustee in bankruptcy delays the performance of such obligation after the declaration of bankruptcy constitutes “claim arising from the act committed by the trustee in bankruptcy with respect to the bankruptcy estate” under Article 473 subparag. 4 of the Debtor Rehabilitation Act, and thus, a claim for delay arising after the declaration of bankruptcy with respect to the wage and retirement allowance claims of the plaintiff, etc., whose implementation had been delayed before the declaration of bankruptcy with respect to the Corrad Leisure Development is deemed as estate claims. Meanwhile, the separate opinion argues that a claim for delay damages, which is a subordinate right to the worker’s wage, etc., falls under the “debtor’s wage, retirement allowance, and accident compensation” under Article 473 subparag. 10 of the Debtor Rehabilitation Act regardless of whether the time when

B. However, we cannot agree with the Majority for the following reasons.

(1) Article 423 of the Debtor Rehabilitation Act provides that "any property claim arising from a cause arising before the declaration of bankruptcy against the debtor shall be a bankruptcy claim (Article 423 of the Debtor Rehabilitation Act)." Article 446(1)2 of the Debtor Rehabilitation Act provides that "the amount of damages and penalty resulting from nonperformance after the declaration of bankruptcy" as subordinate bankruptcy claims. The damages and penalty provided in this context refer to the damages and penalty arising after the declaration of bankruptcy in a relationship between the debtor and the other party with the payment of damages or the penalty on a regular basis, as the debtor has failed to perform his/her property claim before the declaration of bankruptcy. Therefore, since the damages and penalty provided in this context are in a relationship between the debtor and the other party to pay damages or the penalty on a regular basis,

Therefore, unless otherwise provided for in the Debtor Rehabilitation Act, claims for delay arising after the declaration of bankruptcy on the wages, etc. accrued before the debtor is declared bankrupt shall be deemed subordinate bankruptcy claims.

(2) Article 382(1) of the Debtor Rehabilitation Act provides that “All property owned by the debtor at the time that the debtor is declared bankrupt shall belong to the bankruptcy estate (Article 384), and that “the right to manage and dispose of the bankruptcy estate shall belong to the bankruptcy trustee.” Meanwhile, as a claim against the debtor, any claim provided for in the subparagraphs of Article 473 as estate claims, and any estate claim shall be repaid at any time without resorting to bankruptcy proceedings (Article 475).” Therefore, it is reasonable to interpret that an act by the trustee in bankruptcy with respect to “property held by the debtor at the time that the debtor is declared bankrupt” under Article 473 subparag. 4 of the Debtor Rehabilitation Act is deemed an act by the trustee in bankruptcy related to “property held by the debtor at the time that the debtor is declared bankrupt,” and it is difficult to deem that the act by the trustee in bankruptcy

Even if the trustee in bankruptcy is liable to repay the "property claim" from time to time, and even if the trustee in bankruptcy claims for delay in performing the above occasional repayment obligation after the bankruptcy is declared, as the majority opinion states that damages incurred in relation to wages and retirement allowances after the bankruptcy is declared, this is not a claim arising from the act performed by the trustee in bankruptcy with respect to the "property claim," and thus, Article 473 subparagraph 4 of the Debtor Rehabilitation Act cannot be applied.

Inasmuch as individual claims listed as estate claims in bankruptcy proceedings under the Debtor Rehabilitation Act are subject to special treatment so that they may be repaid prior to bankruptcy claims on the smooth progress of bankruptcy proceedings, the ideology of equity, or the public interest and policy reasons, it is necessary to interpret and clearly, as possible, the contents of estate claims in accordance with the language and text of the Debtor Rehabilitation Act, and shall not be extended and applied arbitrarily. Following the Majority’s interpretation, it would result in an unfair expansion and application of the scope of estate claims by including an act performed by a trustee in bankruptcy with respect to “bankruptcy estate” in the act performed by a trustee in bankruptcy, thereby unfairly extending and applying the scope of estate claims. This would deviate from the language and text of Article 473 subparag. 4 of the Debtor

(3) In light of the purpose of the bankruptcy procedure, the claim for damages incurred after the declaration of bankruptcy with respect to workers’ wages, etc. is not considered as estate claims, even in light of the purpose of the bankruptcy procedure, which realizes equitable satisfaction

The Debtor Rehabilitation and Bankruptcy Act grants the trustee in bankruptcy the right to manage and dispose of the bankruptcy estate to realize the equitable satisfaction of all creditors so that the trustee in bankruptcy can act as a central institution for the bankruptcy proceedings (see Supreme Court Decision 2002Da70129, Jun. 24, 2003). The trustee in bankruptcy requires the trustee in bankruptcy to perform his/her duties fairly within the scope of his/her authority and discretion in accordance with the ideology of the bankruptcy proceedings, i.e., the fair progress of the bankruptcy proceedings and the loyalty of the bankruptcy estate.

Since estate claims are not subject to equal repayment in the form of a dividend after filing a report, investigation, and confirmation procedures as to bankruptcy claims, when the maturity period for estate claims arrives, creditors shall directly file a claim for payment with the trustee in bankruptcy, and the trustee in bankruptcy shall, when reasons exist after investigating the existence and amount of estate claims, obtain permission, etc. from the court (see, e.g., Article 492 subparag. 13, etc.

However, in cases where the trustee in bankruptcy recognizes damages for delay as estate claims in lump sum since the date immediately after the bankruptcy is declared against the worker's wage, etc. whose implementation has been delayed before the bankruptcy is declared, the scope of the estate claims can be expanded in an unlimited and fair manner without understanding the details of the estate claims, such as the worker's wage, and it is difficult to carry out fair procedures. Accordingly, as the trustee in bankruptcy is bound to take priority over the repayment of the claims and the damages for delay under each subparagraph of Article 473 of the Debtor Rehabilitation Act, the bankruptcy procedure is not for the majority of the bankruptcy creditors, but for the recovery procedure of the estate claims, it is likely that the bankruptcy

C. Meanwhile, for the following reasons, it is difficult to view that the employee’s damages claim on the employee’s wage, etc. constituted “worker’s wage, retirement allowance, and accident compensation” under Article 473 subparag. 10 of the Debtor Rehabilitation Act.

The language and text of Article 473 subparag. 10 of the Debtor Rehabilitation Act does not include any damages for delay. Moreover, the Supreme Court construed the legal nature of damages for delay arising from the delay of monetary obligation as damages (see Supreme Court Decision 98Da42141, Nov. 10, 1998) as damages for delay (see Supreme Court Decision 98Da42141, Nov. 10, 1998) and distinguish the legal nature of damages for delay from the original claim. Thus, even if the wages, etc. of workers incurred before the debtor is declared bankrupt, it cannot be deemed that

In light of the above purpose and ideology of the bankruptcy procedure, the separate opinion seems to have the same problem as the majority opinion.

D. Therefore, although the Plaintiff’s wage and retirement allowance claims were due prior to the declaration of bankruptcy, the Ecogra leisure development, the debtor, was delayed in implementing the said claims, and thus, the damages for delay claims arising from October 26, 2012, which was the debtor after the declaration of bankruptcy, constituted “amount of damages and penalty resulting from nonperformance after the declaration of bankruptcy,” under Article 446(1)2 of the Debtor Rehabilitation Act, shall be deemed as subordinate bankruptcy claims. It shall not be deemed as estate claims under Article 473 subparag. 4 or subparagraph 10 of the same Article of the Debtor Rehabilitation Act.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the Plaintiff’s claim for damages for delay incurred after the declaration of bankruptcy for the claim for wages and retirement allowances was estate claims. In so doing, it erred by misapprehending the legal doctrine on estate claims or subordinated bankruptcy claims, thereby affecting the conclusion of the judgment. Therefore, the part against the Defendant regarding damages for delay in the

For the foregoing reasons, we express my concurrence with the Majority Opinion or the Concurring Opinion.

6. As to the first ground for appeal, the concurrence with the Majority Opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Ko Young-han, and Justice Kim So-young is as follows.

A. First of all, the phrase “worker’s wage, retirement allowance, and accident compensation” under Article 473 subparag. 10 of the Debtor Rehabilitation Act shall be deemed to mean only the original claim, and it shall not be deemed to constitute damages for delay, the legal nature of which differs.

B. The Dissenting Opinion argues that a claim for damages for delay arising after the declaration of bankruptcy on the wages, etc. of a worker incurred before the declaration of bankruptcy is a subordinate bankruptcy claim because it constitutes “amount of damages and penalty resulting from nonperformance after the declaration of bankruptcy” under Article 446(1)2 of the Debtor Rehabilitation Act.

However, Article 446 of the Debtor Rehabilitation Act regarding subordinated bankruptcy claims is stipulated in the part concerning "bankruptcy claims" in Chapter IV Section 1 among the third bankruptcy procedures, and is applicable only to "bankruptcy claims" as provided in the same Section, and cannot be applied to "property claims" as provided in Chapter IV Section 3, separate Sections 3.

(1) Upon the declaration of bankruptcy, the obligor’s voluntary repayment of the bankruptcy claim and the obligee’s individual exercise of the claim are prohibited in principle, and the equitable satisfaction of the claim is obtained in the form of dividend in the bankruptcy procedure through the reporting, investigation, and confirmation procedure of the claim. As such, the bankruptcy claim is anticipated not to be repaid until the dividend period, and thus, damages for delay may be expected to accrue with respect to any bankruptcy claim the due date of which comes due. In light of the fact that it is almost impossible to obtain the full satisfaction of the original bankruptcy claim in the real bankruptcy procedure, the Debtor Rehabilitation Act shall adjust interests among the creditors as at the time of the declaration of bankruptcy, and determines that interest or delay damages after the declaration of bankruptcy shall be treated as subordinate bankruptcy claim to be lower than those of other bankruptcy claims. The distinction as subordinate bankruptcy claims means that the claim is excluded from the actual distribution of the claim, and the substance is the subject of immunity.

However, unlike bankruptcy claims, since estate claims are repaid from the bankruptcy estate at any time from the bankruptcy estate, it cannot be deemed that the delay in the performance is naturally expected as a matter of law. Therefore, barring any special provision in the Debtor Rehabilitation Act, the provisions concerning subordinate bankruptcy claims premised on the distribution procedure cannot be applied to estate claims. If the bankruptcy trustee’s default on estate claims causes damages for delay, but it is considered as subordinate to the actual bankruptcy dividends, thereby excluding them from the actual bankruptcy dividends, it would be the same as exempting the bankruptcy trustee from his/her liability for delay. Therefore, it is difficult to secure the performance of occasional repayment of estate claims. If the bankruptcy trustee reimburses only one of the estate claims provided for in each subparagraph of Article 473 of the Debtor Rehabilitation Act and delays the performance of other claims, it would prejudice equality among the estate creditors.

(2) Furthermore, it is necessary to distinguish a situation in which the debtor fails to perform his/her obligation that he/she has assumed after the bankruptcy is declared bankrupt and a default on his/her obligation that the trustee in bankruptcy bears in connection with his/her duties after the bankruptcy is declared. The Supreme Court held that “The repayment of specific dividend payment obligation that the trustee in bankruptcy incurs by setting and notifying the dividend rate is not a debtor's obligation that represents the bankruptcy estate, but a civil obligation that is declared bankrupt, regardless of the original nature of the bankruptcy obligation or whether the debtor is a merchant, and the dividend payment obligation that is reasonable to deem as a civil obligation; therefore, the statutory interest rate applicable to delay damages is not affected by the nature of the bankruptcy obligation or agreement of the bankruptcy or the delayed interest rate prescribed by the executive title, and is subject to 5% per annum, which is a civil statutory interest rate (see, e.g., Supreme Court Decision 2003Da22042, Aug. 19, 2005).”

In other words, as a matter of principle, the obligation of the debtor to repay the damage claim and the claim for penalty incurred continuously due to the default on bankruptcy claims and the obligation of the trustee in bankruptcy, while the trustee in bankruptcy bears the obligation to repay only when the specific dividend payment obligation accrues by determining and notifying the dividend rate, the obligation to repay the estate claim is not the obligation of the debtor but the obligation of the trustee in bankruptcy from the time the bankruptcy is declared. Therefore, the obligation to repay the damage claim and the penalty arising from the nonperformance on the estate claim is distinguishable from the obligation of the trustee in bankruptcy as the obligation

C. According to the Dissenting Opinion, even if the bankruptcy trustee claims for damages incurred to the employees’ wages, etc., after the declaration of bankruptcy, are deemed to have delayed performance of the obligation to repay at any time after the declaration of bankruptcy, this is not a claim arising from the act committed by the bankruptcy trustee with respect to “property claims” or the act committed with respect to “bankruptcy estate”, and thus, Article 473 subparag. 4 of the Debtor Rehabilitation Act cannot be applied. However, Article 473 subparag. 4 of the Debtor Rehabilitation Act is not applicable to the nonperformance of the obligation to repay at any time with respect to “property claims” borne by the

(1) The Debtor Rehabilitation and Bankruptcy Act provides that a trustee in bankruptcy shall repay any estate claim at any time without resorting to any bankruptcy procedure and shall repay the estate claim in preference to any bankruptcy claim (Articles 475 and 476). Since the bankruptcy is declared, all of the debtor's property shall belong to the bankruptcy estate. Thus, the trustee in bankruptcy shall repay the estate claim from the property belonging to the bankruptcy estate. Thus, whether the trustee in bankruptcy performs the obligation of occasional repayment of the estate claim directly or indirectly is likely to affect the bankruptcy estate. Thus, the nonperformance of the trustee in bankruptcy with respect to the estate claim constitutes an act of the trustee in bankruptcy

(2) The first sentence of Article 239 of the Civil Procedure Act provides that “the litigation procedures relating to the bankrupt estate shall be interrupted when the parties are declared bankrupt,” and Article 347(1) of the Debtor Rehabilitation Act provides that “the lawsuit pending in the court at the time bankruptcy is declared against the property belonging to the bankrupt estate may be taken over by the bankruptcy trustee or the other party. Where the bankruptcy trustee performs his/her obligation pursuant to the provisions of Article 335(1) of the same Act, the same shall also apply to a lawsuit concerning the other party’s claim.” In light of the contents and purport of the above provision, in a lawsuit pending in the court at the time of the declaration of bankruptcy regarding the property belonging to the bankrupt estate includes a lawsuit concerning the estate claim, which is pending in the court at the time of the declaration of bankruptcy, and the lawsuit concerning the estate claim

D. The Dissenting Opinion concerns that if a claim for damages for delay against workers’ wages, etc. is recognized as an estate claim, the shortage of the bankruptcy estate becomes worse and the bankruptcy trustee cannot proceed with a fair and forecast bankruptcy procedure.

Unlike other foreign legislation cases such as Germany and Japan, the Debtor Rehabilitation Act stipulates that the period of the employee’s wage, etc., as an estate claim regardless of whether the period of the occurrence is before or after the declaration of bankruptcy, the scope of the estate claim may be expanded and the shortage of the bankruptcy estate may be deepened if the claim for delay is deemed an estate claim. However, this is not a matter of legislative validity regarding the scope of the estate claim provided for in the Debtor Rehabilitation Act, nor a matter of interpretation beyond the concept of “bankruptcy claim” or “property claim” under the Debtor Rehabilitation Act.

In addition, under the Debtor Rehabilitation Act, the trustee in bankruptcy shall report the circumstances leading to the declaration of bankruptcy and the progress and current status of the debtor and the bankrupt estate to the first meeting of creditors (Article 488), and shall prepare a list of property and balance sheet and submit a certified copy thereof to the court (Article 483). As such, the trustee in bankruptcy may grasp at an early stage the details of the obligations owed by the debtor, such as taxes and wages, in the course of performing the above duties. Therefore, in a case where the bankruptcy estate is not enough to repay the total amount of the estate claims by ascertaining the details of the estate claims at an early stage, it may prevent the expansion of the estate claims by promptly repaying them, and thus, it cannot be deemed that there is a manifestly unfair problem as asserted by the Dissenting Opinion on the grounds that the trustee in bankruptcy

As above, I express my concurrence with the Majority Opinion.

7. As to the first ground for appeal, the concurrence with the Dissenting Opinion by Justice Jo Hee-de is as follows.

A. The majority opinion and the separate opinion are contrary to the basic principles of statutory interpretation, and thus, it is difficult to accept.

(1) The interpretation of the law must be faithful to the language and text and should not deviate from it.

In interpreting a law, the meaning of the term separately defined in that Act shall be followed, and in other cases, it shall be interpreted in accordance with a reasonable logic based on the ordinary meaning used and understood by the general public. Any such interpretation may take place. If a clear interpretation is derived from the logical meaning structure existing between each provision of the law and the ordinary meaning of the language, even if it does not bring about a satisfactory result in all respects, such other interpretation is not allowed. This is because a different interpretation from the language of the law is not to interpret the existing norm, but to establish a new norm in the name of the interpretation and exercise the legislative power.

In light of the legislative intent, purpose, and history of a law, the teleological interpretation that takes place can be limited only within such limits. In cases where only one interpretation is possible and it is impossible to interpret a different interpretation in accordance with the language, any other teleological interpretation may not exist in addition to accepting one interpretation as possible. If a single interpretation is to the extent that it is impossible to accept it, it is necessary to examine whether the legal provision goes against the Constitution, and it is not permitted in the area of interpretation for any purpose. This is only possible through the amendment of a law.

The fundamental trust and persuasive power in legal interpretation of the judiciary is derived from consistency in the meaning and logic of the language acceptable to anyone if a reasonable person is the legislative intent that is embodied in the text and text of the law, and it is the most fundamental existence of the judiciary. In order to correct somewhat unreasonable outcomes, if the law is distorted by deviating from the text and text in order to achieve a certain policy purpose, then it would be difficult for the party who was expected to have been tried by the law to take over the law. This would not only go beyond the original authority of the judiciary, but also would also go beyond the intrinsic authority of the judiciary, which would eventually result in the party being able to suffer from unexpected pain, damage the legal stability and weakening the normative power of the law, and would also distort the interpretation and operation of the entire legal system.

Article 446(1)2 of the Debtor Rehabilitation and Bankruptcy Act provides that “The amount of damages resulting from the nonperformance after a declaration of bankruptcy is junior bankruptcy claim.” The amount of damages prescribed in this context refers to the right to claim damages arising after the declaration of bankruptcy in a relationship between the other party and the other party in which the other party is liable to pay damages as a result of the other party’s failure to perform his/her property right before the declaration of bankruptcy (see Supreme Court Decision 2002Da53865, Nov. 12, 2004). Thus, it is clear that the claims for damages arising after the declaration of bankruptcy are junior bankruptcy claims for the debtor’

According to the logic of the majority opinion, since the trustee in bankruptcy is obligated to pay wages, etc. to workers who are estate claims under Article 475 of the Debtor Rehabilitation Act, the employee’s right to claim damages accrued due to delay in the performance of such obligation after the bankruptcy is declared constitutes estate claims as provided by Article 473 subparag. 4 of the Debtor Rehabilitation Act. However, as seen above, since delay damages are not due to nonperformance before the bankruptcy is declared, it does not occur after the bankruptcy is declared in the state of default, and there is no negligence in the trustee’s obligation to pay damages. More than anything else, for the purpose of applying Article 473 subparag. 4 of the Debtor Rehabilitation Act, “bankruptcy estate” refers to the property owned by the debtor at the time of the declaration of bankruptcy (Article 382(1)), and “property claims” refer to a specific claim against the debtor (Article 473 of the Debtor Rehabilitation Act). However, if the trustee in bankruptcy fails to perform any of his/her obligation to pay damages due to any act beyond the logical meaning of “an act arising from the bankruptcy estate claims” as well as “an act.”

In accordance with the language and text and structure of the above Debtor Rehabilitation Act, damages for delay arising after the declaration of bankruptcy with respect to the wages, etc. incurred by workers before the declaration of bankruptcy is clear that they are subordinate bankruptcy claims under Article 446(1)2 of the Debtor Rehabilitation Act, and there is no room to deem them as estate claims under Article 473 subparag. 4 of the Debtor Rehabilitation Act. The Majority Opinion’s interpretation clearly deviates from the language and text of the Debtor Rehabilitation Act and deviates from the fundamental limitation of statutory interpretation.

In addition, Article 473 Subparag. 10 of the Debtor Rehabilitation Act only provides for "worker's wages, retirement allowances, and accident compensation" as estate claims, but does not include any delay damages. Therefore, the interpretation of the separate opinion clearly goes beyond the language and text, and thus, cannot be accepted.

(2) Exceptions should be strictly interpreted.

The Debtor Rehabilitation and Bankruptcy Act classify claims against the debtor as bankruptcy claims and subordinate bankruptcy claims, and exceptionally designates claims to be specially protected as estate claims, and takes measures to preferentially protect other bankruptcy claims in the bankruptcy proceedings. In principle, legal interpretation appears to the legislative purport of the Debtor Rehabilitation Act, but such exceptions ought to be strictly interpreted. The estate claims are equally and fairly protected for all bankruptcy creditors by exceptionally recognizing the significant exceptions to equality of creditors for political reasons in the bankruptcy proceedings that liquidate and distribute the debtor's assets for all bankruptcy creditors. Therefore, in order to recognize any claims as estate claims, there is a clear provision in law.

Article 473 Subparag. 10 of the Debtor Rehabilitation Act cited by the Concurring Opinion as stated in the Majority Opinion is very insufficient to regard the damages incurred after the declaration of bankruptcy to the employees’ wages, etc. as estate claims, in light of the language, structure, and legislative intent of the same Article.

(3) Even if viewed from the perspective of “purpose” of the teleological interpretation, it is difficult to say that there is a need to take such interpretation as the Majority Opinion or the Concurring Opinion.

Article 473 Subparag. 10 of the Debtor Rehabilitation Act recognizes “worker’s wage, retirement allowance, and accident compensation” as estate claims, and does not impose any restrictions thereon. Compared with the foreign bankruptcy legislation, this belongs to legislative cases that most strongly protects employee’s wage claims, etc. Nevertheless, deeming the same as estate claims and allowing the same protection of damages incurred after the declaration of bankruptcy as estate claims in addition to the original claim, such as wages, which may be recovered in preference to the bankruptcy claims, is deemed as unlimited estate claims. As such, deeming the damages incurred after the declaration of bankruptcy as estate claims would be too unfortunately unfortunateing the interests of all bankruptcy creditors and thus lose equity. Furthermore, the Concurring Opinion is also deemed as estate claims even before the declaration of bankruptcy regarding wage, etc. goes beyond the language.

According to the logic stated in the majority opinion, damages for delay for all the estate claims are bound to be the result that the entire damages for delay constitutes estate claims. This would result in an unreasonable expansion of the scope of estate claims and threaten the foundation of the bankruptcy system. Meanwhile, according to the majority opinion, claims for damages for delay on wages, etc. in arrears before the declaration of bankruptcy should be deemed bankruptcy claims pursuant to Article 423 of the Debtor Rehabilitation Act. Meanwhile, even if the adjudication of bankruptcy was made, it would result in an excessive assessment of the nonperformance after the declaration of bankruptcy is declared as estate claims. Claims for damages for delay after the declaration of bankruptcy fall under “compensation damages due to nonperformance after the declaration of bankruptcy” under Article 446(1)2 of the Debtor Rehabilitation Act and fall under subordinate bankruptcy claims as well as the balance among the two. Accordingly, claims for wages, etc., as otherwise stated in the separate opinion, can not be deemed as estate claims, regardless of whether the time when the damages for delay occurred before the declaration of bankruptcy was declared.

B. As seen earlier, the Majority and the Concurring Opinion are bound to deviate from the spirit of separation of powers under the Constitution and the basic principles of statutory interpretation. It is very doubtful whether the policy purpose to achieve such interpretation is reasonable. The Supreme Court’s unreasonable interpretation without presenting reasonable reasoning and grounds may not only harm the authority and trust of the judiciary, but also undermine the rule of law.

C. As above, I express my opinion in the supplement of the Dissenting Opinion.

[Attachment] List of Appointeds: Omitted

Chief Justice Yang Sung-tae (Presiding Justice)