[1] Whether a creditor with public interest agreed to handle his/her claim as a reorganization claim or may be deemed to renounce his/her status as a creditor with public interest solely because he/she reported his/her claim as a reorganization claim (negative)

[2] Whether it is null and void as a grant of special benefits under the former Company Reorganization Act that the receiver of the reorganization company selects the other party to perform the executory bilateral contract, and then exempted the other party from the other obligation without complying with the conditions of the reorganization plan (negative)

[1] Articles 102 (see current Article 118 of the Debtor Rehabilitation and Bankruptcy Act), 145 (see current Article 168 of the Debtor Rehabilitation and Bankruptcy Act), and 208 (see current Article 179 of the Debtor Rehabilitation and Bankruptcy Act) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), Article 102 (see current Article 118 of the Debtor Rehabilitation and Bankruptcy Act), Article 103 (1) (see current Article 119 (1) of the Debtor Rehabilitation and Bankruptcy Act), Article 145 (see current Article 168 of the Debtor Rehabilitation and Bankruptcy Act), Article 208 (see current Article 179 of the Debtor Rehabilitation and Bankruptcy Act), Article 102 (2) of the former Company Reorganization Act (Amended by Act No. 7428 of March 31, 2005); Article 103 (1) of the Debtor Rehabilitation and Bankruptcy Act (see current Article 29 (17) of the Debtor Rehabilitation and Bankruptcy Act)

[1] Supreme Court Decision 2004Da3512, 3529 decided Aug. 20, 2004 (Gong2004Ha, 1577)

The administrator of distribution neglected by the reorganization company (Law Firm Aju, Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

Bankruptcy Trustee of Maritime Affairs Co., Ltd. (Law Firm Gwangju, Attorney Kim Tae-ho, Counsel for plaintiff-appellant)

Seoul High Court Decision 2005Na13914 decided July 29, 2005

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, on the premise that there was an agreement between Kim Young-young Co., Ltd., the administrator of the neglected distribution (hereinafter “sub-distribution”) and Mau Co., Ltd. (hereinafter “Mau-woo”), which stipulates that an amount equivalent to KRW 9,730,676,626, which is about 80% of the unpaid purchase price claim amount, shall not be claimed, and the distribution of neglected distribution shall not be claimed out of the indemnity claim as indicated in the judgment, and the amount equivalent to KRW 9,730,676,626, out of the indemnity claim as indicated in the judgment, has become extinct according to the validity of the agreement, and the court below's decision that cited the defense is justifiable, and there is no violation of the principle of pleading, etc. contrary to the allegations in the grounds of appeal.

2. Regarding ground of appeal No. 2

The fact-finding court, based on the evidence submitted by the date of the closing of argument, shall find facts in accordance with logical and empirical rules and make a decision on the assertion on such premise. Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the above agreement is valid on the ground that there is no evidence to deem that the agreement was not established as a matter requiring permission from the reorganization court at the time of the conclusion of the agreement that the Kim Young-young, the administrator of distribution neglected to demand part of the claim for reimbursement. In so doing, the court below did not err by failing

3. As to the third ground for appeal

According to the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005, hereinafter “Company Reorganization Act”), where both the reorganization company and its other party have not yet completed the implementation of bilateral contracts at the time of the commencement of reorganization procedures, the receiver may cancel or terminate the contract, or request the other party to perform his/her obligations (Article 103(1)), and where the custodian selects the implementation of reorganization procedures, the other party’s claims against the company shall constitute public-interest claims (Article 208 subparag. 7). Furthermore, even if a claim for public-interest is simply reported as a reorganization claim and it cannot be deemed that the nature of the public-interest claims is changed as a reorganization claim, and even if it is difficult to determine whether a public-interest creditor is a public-interest claim or a public-interest claim, it may be reported that the other party would lose his/her right if it is not later recognized as a public-interest claim, and thus, it may not be deemed that the other public-interest claims are declared by 20320.

In light of the above legal principles and records, the court below is just in rejecting the plaintiff's assertion that it is null and void under Article 231 of the Company Reorganization Act on the premise that it constitutes an act of offering special benefits to reorganization creditors, and there is no error of law such as incomplete deliberation as to the argument related to Article 231 of the Company Reorganization Act and lack of right to explanation, etc., on the ground that the court below's decision is justified in rejecting the plaintiff's assertion that it constitutes an act of offering special benefits to reorganization creditors, and there is no error of law such as failing to exhaust all necessary deliberations as to the argument related to Article 231 of the Company Reorganization Act and exercising right to explanation.

In addition, the argument that the choice of the performance of the sales contract was made without the permission of the reorganization court and becomes null and void is raised for the first time in the final appeal, and thus it cannot be a legitimate ground of appeal. Moreover, even if the reference materials submitted by the plaintiff in the final appeal are presented by the plaintiff in the final appeal, it can be recognized that the choice of the performance of the executory contract was not determined as the matters permitted by the court

4. 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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)