[1] Whether interest or delay damages incurred before a claim secured by the right to collateral security is secured by the right to collateral security (affirmative)

[2] Meaning of “security offered by a person other than a company for a reorganization creditor or security holder” under Article 240(2) of the former Company Reorganization Act, and whether a mortgage may be executed on the basis of the secured claim prior to the change into the reorganization plan even if a third party purchaser who acquired ownership of mortgaged real estate from the reorganization company prior to the commencement of the company reorganization procedure, even if there is such third party purchaser (affirmative

[3] Where the secured debt of the right to collateral security has been partially extinguished due to the repayment, etc. by the debtor or a third party, but the remaining amount exceeds the maximum debt amount, whether the third party purchaser of the real estate, who became the object of the right to collateral security, may assert that his/her responsibility has been reduced by the repayment, etc

[1] Where a claim secured by the right to collateral security becomes final and conclusive due to reasons such as a request for auction by the mortgagee, the original claim arising from a new transaction relationship after the determination shall not be secured by the right to collateral security, but the interest accrued after the determination or the claim for delay incurred before the determination shall be still secured by the right to collateral security within the scope of

[2] Article 240 (2) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) provides that even if the obligations of the reorganization company are exempted or changed pursuant to the reorganization plan, such obligations as a surety shall not be exempted or changed. Here, the "security offered by a person other than the company for reorganization creditors or security holders" refers to a security right that the reorganization creditor, etc. has a security right as a secured claim against the reorganization company with a third party's property. Thus, even if a third party purchaser acquired ownership to the mortgaged real estate from the reorganization company prior to the commencement of the company reorganization procedure, the security holder may execute the mortgage on such real estate within the scope of the maximum debt amount based on the secured claim under the initial agreement before the reorganization plan is amended.

[3] The third acquisitor of a real estate, which is the object of the right to collateral security, bears the responsibility for the secured debt of the right to collateral security within the scope of the maximum debt amount. Thus, even if the third acquisitor partly extinguished the secured debt due to the repayment, etc. by the debtor or a third party, he cannot assert that the remaining secured debt exceeds the maximum debt amount, his responsibility arising from the repayment, etc. of the secured debt.

[1] Article 357 of the Civil Code / [2] Article 240 (2) 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) (see Article 250 (2) of the current Debtor Rehabilitation and Bankruptcy Act) / [3] Article 357 of the Civil Code

[1] Supreme Court Decision 89Meu15601 delivered on November 28, 1989 (Gong1990Sang, 146) Supreme Court Decision 9Da6649 delivered on June 1, 2001, Supreme Court Decision 2005Da6235 Delivered on July 8, 2005 / [2] Supreme Court Decision 2003Da18685 Delivered on May 30, 2003 (Gong2003Ha, 1452)

The administrator of the non-party, who was appointed by the reorganization company, was the non-party administrator of the reorganization company (Law Firm Gyeong & Yang, Attorneys Kim Won-il et al., Counsel for the plaintiff

Korea Standards Bank, Inc., the Bank of Korea

Korea Asset Management Corporation (Law Firm Sam Young, Attorneys Kim Jong-ok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na68203 delivered on May 25, 2005

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

We examine the grounds of appeal.

1. In light of the evidence admitted by the court below, the judgment of the court below on the overdue interest for the indemnity obligation owed to the defendant under the corporate bond payment guarantee contract between the defendant and the Dongyang Detailed Co., Ltd. (hereinafter "Dong Yang Detailed"), is just, and there is no violation of the rules of evidence against the rules of evidence.

2. Where a claim secured by the right to collateral security becomes final and conclusive due to the reasons such as a request for auction by the mortgagee, the original claim arising from a new transactional relationship after the determination is not secured by the right to collateral security, but is still secured by the right to collateral security within the scope of the maximum debt amount (see, e.g., Supreme Court Decisions 9Da6649, Jun. 1, 2001; 2005Da6235, Jul. 8, 2005).

The court below held that, in principle, the defendant's right to collateral security as well as interest and delay damages on the real estate of this case has been secured by the above principal claim, even if the company reorganization procedure for the joint venture has commenced and its principal claim has been finalized, in order to secure the defendant's obligation arising from the dynamic accuracy such as the debt under the above payment guarantee contract for corporate bonds and the continuous transaction between the defendant. In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles or omission of judgment or omission of legal principles.

3. A. According to Article 240(2) of the former Company Reorganization Act (repealed by Act No. 7428, Mar. 31, 2005), the reorganization plan provides that any rights held by a reorganization security holder against a guarantor or any other person who bears an obligation together with the company and any security provided by a person other than the company for a reorganization creditor or a security holder shall not affect such rights. This provision provides that even if the obligations of the reorganization company are discharged or modified in accordance with the reorganization plan, the obligation of the secured creditor or security holder shall not be exempted or modified. Here, the term "security provided by a person other than the company for a reorganization creditor or security holder" refers to a security right held by a third party with a claim against the reorganization company as a secured claim against the company as a secured claim against the property of the third party (refer to Supreme Court Decision 2003Da18685, May 30, 2003). Even if a reorganization security holder has acquired an ownership over the real estate from the reorganization company prior to the commencement of the reorganization plan, the remaining secured claim cannot be claimed within the maximum maximum amount of the secured claim within the third party.

The court below held that the reorganization plan does not affect the plaintiff's right to collateral security on the real estate of this case, so long as the reorganization plan does not affect the plaintiff's right to collateral security on the real estate of this case, and that the defendant's right to collateral security is all secured by the defendant's right to collateral security on the same real estate of this case, while even if the contents of the defendant's right to collateral security related to the plaintiff's right to collateral security have been reduced to the principal amount of 3.5 billion won and the due date for payment, it is only reduced to the above amount of 10 billion won, which is the maximum debt amount of the right to collateral security. Thus, although the defendant's right to collateral security in the auction procedure on the same real estate of this case after the above reorganization plan was approved, it cannot be deemed that the obligation of the plaintiff's right to collateral security, including damages for delay, is extinguished due to the above dividends, in light of the legal principles as seen above, the court below's judgment is justifiable or incomplete.

B. Meanwhile, the reorganization plan against the plaintiff provides that "if a security holder has implemented a security right established in the property of a third party after the date of approval of the reorganization plan and received the payment, it shall be appropriated in the reverse order from the estimated amount of payment for the last year of the reorganization plan in the order of the principal, transitional interest, and the interest accrued, but the payment of interest shall be appropriated for the interest accrued." In light of the language and purport of the provision, it is reasonable to interpret that in the case where a reorganization security holder executes a security right established in the property of a third party other than the reorganization company and receives the payment, and the payment is partly extinguished, the order of appropriation should be determined. However, the court below determined that the above provision applies only to the case where the reorganization company is the principal debtor and the third party as a surety's surety. However, as seen above, the court below erred in its determination that the defendant received a partial amount of the secured debt from the auction procedure for the same kind of property, but the obligation of the plaintiff still remains extinguished, which did not affect the conclusion of the judgment below.

4. 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 Jeon Soo-ahn (Presiding Justice)