[1] Purport of the requirements for authorization of reorganization plan under Article 233 (1) of the Company Reorganization Act

[2] The meaning of "fair and equitable" under Article 233 (1) 2 of the Company Reorganization Act, and whether it can be subdivided and differentiated in inside the same kind of right under Article 228 (1) 1 through 6 of the same Act (affirmative with qualification)

[3] The case holding that the approval of a reorganization plan differentiated from commercial transaction reorganization claims by classifying so-called factoring financial companies as reorganization claims by financial institutions cannot be deemed as violating the principle of equality under the Constitution or Articles 228, 229, and 233 (1) 2 of the Company Reorganization Act

[4] Whether separate repayment conditions should be established in the reorganization plan for claims repaid prior to the approval of the reorganization plan pursuant to Article 112-2 (2) of the Company Reorganization Act (negative)

[5] Whether the reorganization plan is legitimate, provided that a financial institution under bankruptcy proceeding after having been declared bankrupt is reimbursed for the reorganization claim under the same conditions as other normal financial institutions (affirmative)

[6] Whether it is against the principle of fairness, fairness and equality to differentiate reorganization claims, which are guaranteed claims, compared to reorganization claims which are principal claims (negative)

[7] The case holding that reorganization plans which reduce the rights of subordinate general shareholders into 1/10, which are main bonds, shall be paid in full by the second year, and those which are not guaranteed bonds are against the concept of fairness and fairness and the principle of equality

[8] The case holding that it is desirable to revise and approve the reorganization plan by applying mutatis mutandis Article 234 (1) of the Company Reorganization Act instead of revoking the decision to approve the reorganization plan, although there is a partial error in the reorganization plan

[1] In the company reorganization procedure, the court may decide the approval only when the reorganization plan satisfies the requirements stipulated in the subparagraphs of Article 233 (1) of the Company Reorganization Act. The purport of the Company Reorganization Act strictly stipulates the requirements for the approval of the reorganization plan is to ensure that the contents of the reorganization plan can be made fairly and fairly among the interested parties, as the priority order in the company reorganization procedure is changed by a resolution of different creditors, so that the company's reorganization and reorganization, which is the object of the reorganization system, can be achieved at the same time.

[2] For the approval of a reorganization plan, the process and fairness stipulated in the former part of Article 233 (1) 2 of the Company Reorganization Act must be met. Specifically, the term "fair and fairness" refers to that the conditions of the reorganization plan should be fair and equitable, taking into account the priority order of the rights stipulated in Article 228 (1) of the same Act, and that the conditions should be equal among the right holders of the same kind as prescribed in Article 229 of the same Act. The equality here refers not to formal equality, but to substantial equality that does not go against the concept of fairness and fairness. Thus, all rights in the reorganization plan must be divided into six kinds of rights under Article 228 (1) 1 through 6 of the same Act and treated equally, and the right should not be divided into two kinds of rights, and if it does not go against the principle of equality and equality of the rights in the same kind, it shall not be permitted within the scope of reasonable grounds for reduction or exemption, taking into consideration the nature of the reorganization claim or the right of equality.

[3] The case holding that the approval of a reorganization plan differentiated from the commercial transaction reorganization claim by dividing so-called factoring financial company into a financial institution reorganization claim shall not be deemed to violate the principle of equality under the Constitution or Articles 228, 229, and 233 (1) 2 of the Company Reorganization Act

[4] Under Article 112-2 (2) of the Company Reorganization Act, in a case where it is deemed that the failure to repay a reorganization claim may seriously obstruct the reorganization of the company, the court may permit the full or partial repayment upon the application of a preservative custodian, administrator, or company even before the decision to approve the reorganization plan. Any claim repaid prior to the approval of the reorganization plan by the court is absolutely extinguished to the extent of the repayment made (the amount of voting right shall be reduced to the extent of the repayment made) and under Article 215-2 of the same Act, the contents of the repayment are stipulated in the reorganization plan, so it shall not be deemed unlawful on the ground that it did not establish a separate repayment condition in the reorganization plan.

[5] Since the fact that a financial institution is in bankruptcy proceeding with a declaration of bankruptcy cannot serve as a reasonable ground for discrimination merely with the fact that a financial institution is in bankruptcy proceeding, the reorganization plan which allows repayment of a reorganization claim under the same conditions as other financial institution does not violate the principle of equality, or violates the special nature or purpose of bankruptcy.

[6] In general, in the case of a guaranteed obligation, the principal obligor liable for repayment is not only separate, but also does not necessarily obtain compensation equivalent to the guaranteed obligation, and in the case of a guaranteed obligation, it cannot be deemed that the reorganization claim is a principal obligation, even if it has a certain differential level compared to the principal obligation, it goes against the principle of fairness, fairness, or equality.

[7] The case holding that reorganization plans which reduce the rights of subordinate general shareholders into 1/10, which are main bonds, shall be paid in full by the second year, and those which are not guaranteed bonds, are against the concept of fairness and fairness and the principle of equality, which exempt the whole amount of reorganization claims, which are guaranteed bonds, from the reorganization claims of financial institutions, which are guaranteed bonds, even though they differ between the reorganization claims of financial institutions and commercial reorganization claims which are guaranteed bonds

[8] The case holding that it is desirable to revise and approve the reorganization plan by applying mutatis mutandis Article 234 (1) of the Company Reorganization Act, instead of cancelling the decision to approve the reorganization plan partially.

[1] Article 233 (1) of the Company Reorganization Act / [2] Articles 228 (1), 229, and 233 (1) 2 of the Company Reorganization Act / [3] Articles 228 (1), 229, and 233 (1) 2 of the Company Reorganization Act / [4] Articles 112-2, 215-2, and 233 (1) 2 of the Company Reorganization Act / [5] Articles 229 and 233 (1) 2 of the Company Reorganization Act / [6] Articles 229 and 233 (1) 2 of the Company Reorganization Act / [7] Articles 228, 229, and 233 (1) 2 of the Company Reorganization Act / [8] Article 234 (1) 2 of the Company Reorganization Act

[1] [2] Supreme Court Order 98Da11 dated August 28, 1998 (Gong1998Ha, 2493), Supreme Court Order 99Da66 dated November 24, 1999 (Gong2000Sang, 134) / [1] Supreme Court Order 87Ma277 dated December 29, 1987 (Gong198, 398) / [2] Supreme Court Order 88Ma266 dated July 25, 198 (Gong1997, 285) Supreme Court Order 90Ma954 dated May 28, 1991 (Gong191, 1728) (Gong191, 2929 dated June 15, 1992)

Possa Co., Ltd. and two others (Attorney Song Man-chul, Counsel for the defendant-appellant)

The administrator, non-appeal, etc. (Law Firm Pacific, Attorneys Kim Man-man et al., Counsel for the plaintiff-appellant) of Amar Automobile Co., Ltd. (Law Firm Pacific, Counsel for the plaintiff-appellant)

Seoul High Court Order 99Ra23 dated May 10, 1999

The part of the order of the court below against the special appellant Heavy Industries Co., Ltd. is reversed, and the corresponding part of the case is remanded to the Seoul High Court. The special appeal against the special appeal against the defendant and the bankruptcy trustee of the bankrupt Hansung Heavy Heavy Finance Co., Ltd. is dismissed, respectively.

1. The special grounds for appeal by a special appellant shall be considered as the grounds for a special appeal by a special appellant;

A. As to the first and third points

In the company reorganization procedure, the court may decide to grant authorization only when the reorganization plan satisfies the requirements stipulated in each subparagraph of Article 233(1) of the Company Reorganization Act (hereinafter referred to as the "Act"). The purport of the strict provision of the requirements for the reorganization plan is to ensure that the contents of the reorganization plan can be achieved fairly and fairly and at the same time, the company's reorganization and reorganization, which is the purpose of the reorganization system, is to achieve the company's reorganization and reorganization (see, e.g., Supreme Court Order 87Ma277, Dec. 29, 1987; Order 98Da11, Aug. 28, 1998).

Therefore, in order to approve a reorganization plan, it shall be fair and equitable as provided for in the former part of Article 233(1)2 of the Act. The term "fair and equitable" in this context means that the conditions of the reorganization plan should be fair and equitable, taking into account the order of rights as provided for in Article 228(1) of the Act, and that the conditions of the plan should be equal as prescribed in Article 229 of the Act among the right holders of the same kind, and that the conditions should be equal as prescribed by Article 229 of the Act. The equality in this context refers not to formal equality, but to substantive equality that does not go against the concept of fairness and fairness, so all rights in the reorganization plan should be divided into six kinds as provided for in Article 228(1)1 through 6 of the Act, and the rights of each kind should be treated equally, and in six cases, the rate of reduction or exemption should not be determined equally within 98.19% of the total amount of redemption claim or security 98.2.98

According to the records, the reorganization plan of this case, which was approved by the reorganization court on December 28, 1998, after the reorganization company was organized by the administrator of the Asian Automobile Industry Co., Ltd. (hereinafter referred to as the "Adjustment Co., Ltd.") on June 30, 1999 and decided at the meeting of interested persons on December 28, 1998, classified the reorganization claims as reorganization claims by classifying it as financial institutions, and 68.61% of the principal and interest, including interest before the commencement of the reorganization claim for financial institutions, 23.80% of the principal and interest including interest before the commencement of the reorganization claim, 7.59% from 202 to 7.59% of the total amount of the principal and interest payment (in the case of the principal and interest payment for 3 years after the commencement of the reorganization procedure, the total amount of the principal and interest payment for 10 years from 10th of December of 198).

In principle, a financial institution's reorganization claim and a commercial reorganization claim are classified into general reorganization claims under Article 228 (1) 3 of the Act. However, even if the debt of the reorganization company becomes final and conclusive, it is more than 2.7 million won and more than 75% of the total debt amount. Among them, the nature of the reorganization claim of a financial institution is more than 2.7 billion won and more than 2.75% of the total debt amount. The nature of the reorganization claim of a financial institution is due to the provision of credit for the purpose of increasing financial income, such as collection of interest, etc., and the reason why the reorganization company's failure is caused due to bad debt collection, is the poor management of the financial institution. However, if the scale of the debt becomes astronomical, it is not only impossible to reorganize the reorganization company's assets through the implementation of the reorganization plan, but it is also reasonable to view that there is no reasonable change in the financial structure of the company's capital and its related parts to continue to be supplied in the future.

Furthermore, the amount of paid-in capital reaches 65 billion won, and the acquisition, management, and collection of sales bonds, i.e., the so-called factoring financing, which is a company acquiring the reorganization claim in this case, is a company that mainly takes over, manages, and collects sales bonds, and provides the reorganization claim in this case with a promissory note issued with goods such as automobile accessories, etc. supplied by the Initial Automobile Co., Ltd. prior to the merger, along with the goods-price bonds, as collateral is transferred and offered as collateral. In the process of the merger, since the liquidation company took out financial income by collecting interest or fees, it cannot be deemed that there are special circumstances that can be treated differently from other financial company reorganization claims in other financial institutions. Since the mobilized fund is freely established under the Commercial Act, it is a company that can be freely established under the Commercial Act and does not deal with the business of receiving loans, and it is not different from the fact that it does not receive any regulation, supervision, or support and protection from the Government in accordance with the finance-related statutes.

Therefore, there is no violation of the principle of equality under the Constitution or the Article 228, 229, or 233(1)2 of the Act in the order of the court below as a special ground for appeal.

B. On the second ground for appeal

According to Article 112-2 (2) of the Act newly established by the amendment on February 24, 1998, in cases where it is deemed that the failure to repay a reorganization claim may seriously obstruct the reorganization of a company, the court may permit the full or partial repayment at the request of a protective custodian, custodian, or company even before the decision to approve the reorganization plan is made. According to the records, the amount of KRW 385.8 billion issued as a substitute for a new bill among the reorganization claims for which a mobilization order is claimed to be preferentially paid without the reorganization plan is not changed into a public interest claim, but is deemed to have been paid in accordance with the reorganization plan. Other securities, financial institutions, reorganization claims, and commercial reorganization claims, other than those paid by the reorganization plan, fall under the cases where it is deemed that most of the imported parts and most of the reorganization claims are not paid in accordance with the reorganization plan, and it is deemed that there is a risk of considerable impediment to the reorganization of the company without paying in heating to a foreign company, etc.

The Supreme Court Order 98Da11 dated August 28, 1998, pointed out in the special grounds for appeal, was amended and the law applied to the case where the repayment of obligations and the approval of the reorganization plan was made before Article 112-2(2) was established, and the applicable law was different, and it is inappropriate to invoke this case as it differs from this case.

On the other hand, the claims repaid prior to the approval of the reorganization plan by the court is absolutely extinguished to the extent of their repayment (the amount of voting rights shall be reduced to the extent of their repayment), and according to Article 215-2 of the Act, the contents of their repayment are stipulated in the reorganization plan. Thus, it cannot be deemed unlawful on the ground that the reorganization plan did not establish a separate repayment condition.

Therefore, there is no violation of Article 112, Article 112-2, or Article 233 (1) 2 of the Act, which is alleged as a special ground for appeal in the order of the court below, and there is no violation of the law, such as incomplete hearing, incomplete hearing, and inconsistency with the reasoning, or the

2. The grounds for the special appeal by the bankruptcy trustee of the Korea-Japan Comprehensive Finance Corporation, who is a special appeal by the bankrupt, shall be considered as the grounds for the second appeal.

As seen earlier, equality under the Act refers to the substantive equality that does not go against the concept of fairness and fairness, not formal equality, and therefore, even if the reorganization claims or securities of the same rank are subdivided and differentiated in the reorganization plan, if it does not go against the concept of fairness and fairness, it may be differentiated. However, it shall not be permitted to differentiate the conditions of the reorganization plan without reasonable grounds that it does not go against the concept of fairness and fairness, but it shall not be permitted to differentiate the conditions of the reorganization plan with respect to the same kind of reorganization claims or securities, which is the same kind of reorganization claims or securities, and the fact that the Korean Commercial Finance Co., Ltd. (hereinafter referred to as the "Korean Commercial Finance Co., Ltd.") is under bankruptcy and bankruptcy proceedings after being declared bankrupt. Therefore, it cannot be viewed that the reorganization plan of this case does not violate the principle of equality, or violates the characteristics of bankruptcy or its purpose.

In addition, the issue of whether the KIF money is appropriated for the repayment of the above loan claims in money which is held by the third party by collecting promissory notes issued by the third party as security of the loan claims against the reorganization company does not fall under the necessary matters to be determined by the reorganization plan under Article 211 (1) of the Act. Thus, it cannot be deemed unlawful for the KIF to determine this as the

Meanwhile, according to the records, the special appellant was judged in favor of the reorganization company that confirms that he is a security holder in the lawsuit for confirmation of the reorganization claim against the reorganization company. In this case, since the rights are changed as a security already determined in the reorganization plan pursuant to the provisions of the disposal of the undetermined security holder (Section 8 of Chapter III of the reorganization plan), it cannot be deemed that the reorganization plan was not established. According to the reorganization plan of this case, it cannot be deemed that the fairness was lost because the reorganization security holder is able to change much more favorable rights than the general shareholders. The assertion that the amount to be paid by the reorganization plan in the reorganization procedure of this case is more than the case where the reorganization company is immediately liquidated without going through the reorganization procedure of the reorganization company, it cannot be adopted merely because the opinion that the reorganization company should be resolved more promptly.

Therefore, there is no violation of Article 23, 11, 1, 211, or 233 of the Constitution, which is alleged as a special ground for appeal in the order of the court below.

3. The grounds for special appeal against a lender, middle and industrial company shall be deemed to be grounds for special appeal;

According to the reasoning of the order of the court below, the court below rejected the appeal by the lender industry on the following grounds: (a) considering the following: (b) the reorganization company bears the obligation as the issuer of a bill against the Special Appeal Heavy Industries Co., Ltd. (hereinafter only referred to as the "Large Heavy Industries") and its substance constitutes the guaranteed obligation as defined in the reorganization program, and (c) the reorganization company bears the guaranteed obligation as to the obligations of the same Steel Co., Ltd. (hereinafter only referred to as the "Dongjin Steel"); and (d) the reorganization company bears the principal obligation as well as the preferential protection of the creditors who bear the principal obligation compared to the creditors in the case where the main obligor is separate, compared to the creditors in the case where the reorganization company bears the principal obligor, it does not violate the principle of equity, equity, and equality; and (b) even if there are circumstances such as the introduction of a promissory note paid by the Heavy Heavy Industries to the other secured creditor company, the reorganization company that treats the same as the other secured creditor company does not violate the principle of fairness, equity and equality.

In general, in the case of a guaranteed obligation, since the principal obligor liable for repayment as well as the principal obligor does not necessarily obtain the price corresponding to the guarantee, it shall not be deemed that, in the case of a guaranteed obligation, even if the reorganization claim is a guaranteed obligation, it is against the principles of fairness, fairness, or equality even if it is differentiated compared with the principal obligation. In this regard, the judgment of the court below is acceptable.

However, in the instant reorganization program, the whole amount of guarantee claims is exempted, and such measures are so serious that they are against the principles of fairness, reputation or equality.

First of all, it is clear that the order of priority is prior to the general shareholders under Article 228 (1) 6 of the Act even if the reorganization claim of a lender company is a guarantee claim under the criteria of fair and equitable discrimination, since it constitutes a general reorganization claim under Article 228 (1) 3 of the Act, it shall not be subject to at least unfavorable treatment than the general shareholders of the reorganization company, unless there are special circumstances, such as where the lender Heavy Industries provided the cause of the failure of the reorganization company or has a special relationship with the company, etc. In the case of general shareholders, 10 share shares held by them are combined with 1/10 shares, and the right of calculation is reduced to 1/10, while the reorganization claim of the lender Heavy Heavy Industries is exempted in whole, so it does not go against the concept of fair and equitable discrimination.

Next, in light of the special nature of guarantee claims as seen earlier, the exemption from the whole amount of commercial reorganization claims from the lender, a lender, on the ground that it is a guarantee claim cannot be viewed as discrimination within a reasonable scope compared with the payment of principal in the case of other commercial reorganization claims until the second year at the latest, even though considering the special nature of guarantee claims as seen earlier. Moreover, it cannot be said that the exemption from the whole amount of commercial reorganization claims from the lender, a commercial reorganization claim, is consistent with the concept of fairness and fairness and the principle of equality on the ground that there was an agreement on the exemption from the total amount of guarantee obligations at the creditor financial institution’s representative meeting, which is a commercial reorganization claim on the ground that there was a reorganization claim and commercial reorganization claims exempted from the reorganization plan in this case on the ground that there was an agreement on the exemption from the total amount of guarantee obligations at

Nevertheless, the order of the court below that dismissed an appeal by the lender's Heavy Industries is erroneous in the misapprehension of the legal principles of Articles 228, 229, and 233 of the Act, which affected the conclusion of the appeal, and the argument of the special appeal that contains the purport of pointing this out has merit.

However, in light of the fact that not only the majority of interested parties consented to the reorganization plan in this case but also the plan has already been implemented, and the impact on the society and economy has not been small, the court below should promptly revoke the first instance decision on the ground that there is such partial violation, but also consider the relationship with other interested parties, the possibility of implementing the reorganization plan, etc. by applying Article 234(1) of the Act mutatis mutandis, and revise the first instance decision to authorize the reorganization plan by prescribing provisions protecting the rights of the lender industry.

4. Conclusion

Therefore, the part of the order of the court below regarding the special appeal lender Heavy Industries is reversed, and that part of the case is remanded to the Seoul High Court in order to re-examine and determine the case, and the administrator of the special appeal and the re-appeal administrator of the provisional appeal and the non-appeal 2, respectively, shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)