(영문) 대법원 2015.8.27.선고 2013다74554 판결

1. The effect of interrupting prescription under Article 5 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005; hereinafter referred to as the "former Company Reorganization Act") following the participation in company reorganization proceedings shall also extend to the surety obligation whose principal obligation is the reorganization company's obligation, and its effect shall remain in force as long as the exercise of the right to participate in company reorganization proceedings continues (see, e.g., Supreme Court Decision 98Da42141, Nov. 10, 1998)

Meanwhile, in cases where all or part of the principal obligation is exempted or reduced by the reorganization program, the exercise of rights by the obligee in the reorganization program at the time of the extinguishment of the principal obligation of the exempted or reduced portion at the time when the decision to authorize the reorganization program becomes final and conclusive, and the corresponding part of the extinctive prescription shall resume from the time when the decision to authorize the reorganization program becomes final and conclusive. However, in cases where the principal obligation remains, the interruption of prescription by intervention in the reorganization program shall be maintained as is, and if the decision to abolish or terminate the reorganization program becomes final and conclusive, the extinctive prescription of the guaranteed obligation which has been interrupted from the time of termination of the reorganization program shall resume (see, e.g., Supreme Court Decision 2007Da11231, May 31

2. Review of the reasoning of the judgment of the first instance as cited by the lower court and the evidence duly admitted by the lower court reveals the following facts.

A. (1) On March 12, 1997, Taesan Mutual Savings and Finance Company (hereinafter referred to as " Taesan Mutual Savings and Finance Company") entered into a bill transaction agreement with B Co., Ltd. (hereinafter referred to as "B") at the rate of KRW 700,000 per annum, 17% per annum, and 19% per annum, and lent KRW 70,000 to B as the discount of the bill (hereinafter referred to as "bill loan of this case").

(2) The Defendant provided joint and several sureties with the Promissory Notes Loans of this case to the Taesan Treasury on the same day.

(3) B, on the same day, endorsed on the back of the Promissory Notes dated June 10, 1997, issued by C(hereinafter referred to as “C”) which is an affiliate of B, and delivered the said Promissory Notes to Thai Treasury.

(4) After that, Taesan Mutual Savings Bank was acquired with good Mutual Savings Bank, and Good Mutual Savings Bank Co., Ltd. transferred its claim for the Promissory Notes to the Plaintiff (former Mutual Savings Bank) in accordance with the Financial Services Commission’s decision on March 16, 2007 on the transfer of contracts, and on the same day, the notice of the transfer of claims in accordance with Article 14(2) of the Act on the Structural Improvement of the Financial Industry and Article 48 of the Mutual Savings Bank Business Supervision Regulations was published on the basis of the summary of the previous decision and the publication of the fact of the transfer of contracts in the daily

B. (1) B was decided on January 16, 1998 by the Cheongju District Court to commence the company reorganization procedure (97m174), and on February 1998, Taesan District Court reported the claim of this case 780,164,383 (the discounted bill 70 million won + overdue interest 80,164,383 won) as reorganization claim. (2) On March 23, 1998, the administrator of Taesan District Court B was decided as the "Conditional Guarantee Claim to the effect that the issuer of the bill is unable to repay the claim of this case reported by Taesan District Court." On the other hand, C was decided on December 10, 1997 by the Busan District Court to commence the company reorganization procedure (97m152), and on September 21, 1998, the specific method of reorganization of the claim of this case was authorized in the reorganization plan of Taesan District District.

(3) On April 27, 199, the reorganization plan for the company B of the reorganization company approved on April 27, 199 (hereinafter "the reorganization plan for the company in this case") shall be classified into "guarantee claim of the Bank of Taesan", and 'the alteration of rights and the method of repayment' shall, in principle, be repaid by the principal debtor. (2) If the principal debtor is unable to repay due to bankruptcy or liquidation, etc., the liquidation company shall pay equally in 7 years after the completion of the principal obligation. (3) The reorganization company shall be exempted from paying in installments.

(4) After that, the instant reorganization plan was amended by the amendment plan of the company B approved on December 2, 2009 (hereinafter “instant amendment plan”). As of December 27, 2009, the instant amendment plan was for KRW 447,279,349, which is the guaranteed bond, to pay in cash the amount of KRW 225,038,469, which is 50.31%, and to exempt the remainder of KRW 222,240,80. Accordingly, on January 22, 2010, the reorganization company B repaid the Plaintiff KRW 225,038,469.

3. We examine the above facts in light of the legal principles as seen earlier.

Around February 198, Taesan Treasury participated in the company reorganization procedure B, which is the principal debtor of the claim for the bill loans of this case, and reported the claim for the bill loans of this case as reorganization claim, the extinction prescription of the bill loans of this case of the reorganization company B was suspended. Since the interruption prescription of the above statute of limitations is also effective against the obligation for the bill loans of this case, it shall be deemed that the statute of limitations of the joint and several surety obligations of the defendant for Taesan Treasury was interrupted around February 1998

Of the approved company reorganization plan of this case as of April 27, 199, the part concerning the reorganization creditor Taesan Treasury is first repaid by C, who is the issuer of the bill of this case, but if C is unable to repay it due to bankruptcy, liquidation, etc., the reorganization company B shall repay it in equal installments for seven years after the lapse of three years and shall be exempted from interest. This is to determine the amount of the debt of the bill of this case and the method of repayment for the existence of the debt of this case, except for the exemption of the occurrence of the debt, and the interruption of prescription by participation in the reorganization proceedings of Taesan Treasury shall remain effective within the extent.

However, pursuant to the instant change plan authorized on December 28, 2009, the Plaintiff, the assignee of the instant bill loans, was exempted from KRW 222,240,880 among the instant bill loans and was repaid KRW 225,038,469 on January 22, 2010, and the Plaintiff, the assignee of the obligation of Taesan National Treasury, has terminated the exercise of the right to the instant bill loans, thus the Defendant’s joint and several liability obligation is re-extinctive prescription again. However, as the Plaintiff’s lawsuit was filed on February 17, 2011, prior to the lapse of the five-year commercial extinctive prescription period from that time, it is apparent in the record that the Plaintiff’s lawsuit was filed on February 17, 2011. Therefore, this part of the Defendant’s defense of extinctive prescription cannot be accepted.

4. Nevertheless, the lower court erred by misapprehending that the exercise of the right in the reorganization proceedings of Taesan Treasury, a creditor, was terminated by changing the claim for the bill loans of Taesan Treasury under the reorganization plan of the company of this case into conditional security deposit for C, and on that premise, determined that the extinctive prescription of the Defendant’s joint and several liability obligation runs again from April 27, 1999 when the reorganization plan of the company of this case became final and conclusive, thereby citing the Defendant’s defense of extinctive prescription.

Therefore, such judgment of the court below is erroneous in the misapprehension of legal principles as to the interruption of prescription of a surety obligation whose principal obligation is the reorganization company's obligation, alteration of rights by the reorganization plan of the company, and the participation of creditors in the reorganization proceedings. The ground of appeal assigning this error is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.