[1] The purport of Article 240 (2) of the Company Reorganization Act

[2] Whether the guarantor's liability is exempted in a case where a reorganization plan, the content of which is the assumption of an obligation with exemption, is approved or finalized (negative)

[3] In a case where a trustee in bankruptcy raises an objection to the reported claim or an obligee fails to file a lawsuit for confirmation of bankruptcy claim within the statutory period on the claim inspection date and is excluded from the distribution, whether the interruption of prescription due to participation in bankruptcy proceedings becomes invalid (negative)

[1] Article 240 (2) of the Company Reorganization Act provides that the reorganization plan does not affect any rights held by reorganization creditors or reorganization security holders against guarantors or other persons who bear obligations together with the company, and any security provided by those other than the company for reorganization creditors or reorganization security holders. This provision aims at realizing the purpose of the Company Reorganization Act, which aims to promote reorganization and reorganization of the business by adjusting the understanding of creditors, stockholders and other interested persons in the case of a stock company which faces bankruptcy due to financial difficulties but is anticipated to be corrected but is anticipated to be corrected.

[2] Even if the reorganization plan is approved and finalized in the company reorganization procedure, the acquisition of the principal obligation by a third party is not deemed to have been actually satisfied by the assumption of an obligation itself, so the scope of the guarantor's liability under Article 240 (2) of the Company Reorganization Act does not affect all the scope of the guarantor's liability. Meanwhile, Article 459 of the Civil Act, which provides for the extinguishment of the guarantee liability in the assumption of an obligation with the exemption from liability, is excluded in this case.

[3] Article 171 of the Civil Code provides that the participation in bankruptcy proceedings shall not have the effect of interrupting prescription in a case where the creditor has cancelled it or the claim has been rejected. Thus, even if the trustee in bankruptcy raises an objection to the reported claim or the creditor has not filed a lawsuit for confirmation of bankruptcy claim within the statutory period on the claim inspection date and the dividend has been excluded from the distribution, it shall not be deemed to fall under "when the claim is rejected" as referred to in the above provision. Accordingly, the interruption of prescription due to the participation in

[1] Article 240 (2) of the Company Reorganization Act / [2] Article 240 (2) of the Company Reorganization Act, Article 459 of the Civil Act / [3] Article 171 of the Civil Act, Article 233 of the Bankruptcy Act

[1] Supreme Court Decision 94Da57800 delivered on October 13, 1995 (Gong1995Ha, 3771) / [2] Supreme Court Decision 2004Da27143 delivered on January 27, 2005 (Gong2005Sang, 308)

Choung Bank (Law Firm, Kim & Lee, Attorneys Jeon Byung-hee et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Law Firm continental, Attorneys Inn Jong-chul et al., Counsel for the bankruptcy)

Seoul High Court Decision 2004Na66935 delivered on April 20, 2005

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

1. Article 240 (2) of the Company Reorganization Act provides that the reorganization plan does not affect any rights held by reorganization creditors or reorganization security holders against guarantors or other persons who bear obligations together with the company, and any security provided by those other than the company for reorganization creditors or reorganization security holders. This is a provision to realize the purpose of the Company Reorganization Act, which aims to promote reorganization and reorganization of the company reorganization by adjusting the understanding of creditors, stockholders and other interested persons in the case of a stock company which faces bankruptcy due to financial difficulties but is anticipated to be corrected (see Supreme Court Decision 94Da57800 delivered on October 13, 195).

In light of the purport of the above provision, even if the reorganization plan is approved and finalized in the company reorganization procedure that provides that a third party assumes the main obligation with exemption, it shall not be deemed that the debt is actually satisfied by the assumption of the obligation itself. Thus, the scope of the guarantor's liability pursuant to Article 240 (2) of the Company Reorganization Act does not affect the scope of the guarantor's liability (see Supreme Court Decision 2004Da27143, Jan. 27, 2005). On the other hand, Article 459 of the Civil Act that provides for the extinguishment of the guarantee liability in the assumption of an obligation with exemption, is excluded from the application in this case.

The judgment of the court below to the same purport is just, and there is no error of omission of judgment, etc. as alleged in the grounds of appeal.

2. Article 171 of the Civil Code provides that the participation in bankruptcy proceedings shall not have the effect of interrupting prescription if the creditor has cancelled it or the claim is dismissed. Thus, even if the trustee in bankruptcy raises an objection to the reported claim or the creditor has not filed a lawsuit for confirmation of bankruptcy claim within the statutory period on the claim inspection date and the dividend has been excluded from the distribution, it shall not be deemed to fall under "when the claim is rejected" as referred to in the above provision. Accordingly, the interruption of prescription due to the participation in bankruptcy proceedings shall continue to exist until

The judgment of the court below which is the same purport is just, and it does not accept any allegation in the grounds of appeal that there is an error in the misapprehension of legal principles as to interpretation and application of Article 171 of the Civil Act

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)