[1] The method of calculating the period of "within 20 days before the application for commencement of rehabilitation procedures" under Article 179 (1) 8-2 of the Debtor Rehabilitation and Bankruptcy Act (i.e., the first day of the application for commencement of rehabilitation procedures is not included in the calculation, but the expiration of the period as of the end

[2] In a case where a claim reported as a rehabilitation claim is confirmed as stated in the table of rehabilitation creditors and is recorded in the table of rehabilitation creditors, whether there is a benefit of litigation over the pending rehabilitation claim (negative)

[1] Article 33 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis to rehabilitation procedures when no provision is provided for in the Debtor Rehabilitation Act, and Article 170 of the Civil Procedure Act provides that the calculation of the period shall be made pursuant to the Civil Act. Meanwhile, the Debtor Rehabilitation Act provides that “The right to claim price for an article that the debtor continues to provide as a result of continuous and normal business activities within 20 days before the application for commencement of rehabilitation procedures” shall be deemed a priority claim (Article 179(1)8-2), and no special provision is provided for the calculation of the period. Therefore, in calculating the period “within 20 days before the application for commencement of rehabilitation procedures” as prescribed in the said provision, the provisions of the Civil Act concerning the calculation of the period shall apply mutatis mutandis. Thus, the first day, which is the date of filing an application for commencement of rehabilitation procedures pursuant to the main sentence of Article 15

[2] Any rehabilitation creditor who intends to participate in rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) shall file a report on rehabilitation claims (Article 148(1) of the Debtor Rehabilitation Act); when an objection is raised against the reported rehabilitation claims, all of the objectors as other parties may file a final claim inspection judgment with the court (Article 170(1) of the Debtor Rehabilitation Act); and any person dissatisfied with the judgment may file a lawsuit seeking objection against the final claim inspection judgment (Article 171(1) of the Debtor Rehabilitation Act). In the absence of any objection against the reported rehabilitation claims, the same shall be confirmed as reported (Article 166 subparag. 1 of the Debtor Rehabilitation Act); when any entry into the final rehabilitation claim in the table of rehabilitation creditors becomes effective as the final and conclusive judgment (Article 168 of the Debtor Rehabilitation Act); and any lawsuit involving the pending rehabilitation claims is illegal as there is no benefit of the lawsuit.

[1] Articles 33 and 179(1)8-2 of the Debtor Rehabilitation and Bankruptcy Act, Article 170 of the Civil Procedure Act, Articles 157 and 159 of the Civil Act / [2] Article 248 of the Civil Procedure Act / [3] Articles 148(1), 166 subparag. 1, 168, 170(1), and 171(1) of the Debtor Rehabilitation and Bankruptcy Act

[2] Supreme Court Decision 2013Da17971 Decided June 26, 2014 (Gong2014Ha, 1457)

U.S. Corporation

A rehabilitation company, O&Wn Co., Ltd., the Nonparty’s legal administrator Nonparty’s lawsuit taking over the lawsuit

Seoul Southern District Court Decision 2018Na66812 decided June 13, 2019

Of the lower judgment, the part concerning the claim for the amount of KRW 1,499,300 on May 26, 2017 is reversed, and that part of the case is remanded to the Seoul Southern District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. Whether the Plaintiff’s claim for the price of goods amounting to KRW 1,499,300 on May 26, 2017 constitutes a priority claim

A. Article 33 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis to rehabilitation procedures when no provision is provided for in the Debtor Rehabilitation Act, and Article 170 of the Civil Procedure Act provides that the calculation of the period shall be made pursuant to the Civil Act. Meanwhile, the Debtor Rehabilitation Act provides that “The right to claim price for the goods that the debtor continues to provide as a result of his/her ordinary business activities within 20 days before the commencement of rehabilitation procedures” shall be deemed a priority claim (Article 179(1)8-2), and there is no special provision regarding the calculation of the period. Therefore, the provision on the calculation of the period shall apply mutatis mutandis to calculating the “within 20 days before the commencement of rehabilitation procedures” as prescribed in the said provision. Therefore, the first day, which is the date of filing an application for commencing rehabilitation procedures pursuant to the main sentence of Article 157 of the Civil Act, shall not be deemed to have expired

B. Of the goods-price claims claimed by the Plaintiff, the lower court determined that the part seeking payment of KRW 1,49,300,000, which was derived from June 15, 2017, which was the filing date of the Defendant’s application for commencement of rehabilitation procedures, is a priority claim for the goods-price claim of KRW 2,013,00,00, which was supplied within 20 days, but the claim for the goods-price amounting to KRW 1,49,30, May 26, 2017, which was previously supplied, constituted a rehabilitation claim, was unlawful on

C. However, in light of the foregoing legal doctrine, it is apparent that the period from June 14, 2017, which was the day immediately preceding the filing date of the Defendant’s application for commencement of rehabilitation procedures, to the 20th day from June 15, 2017, which was the day immediately preceding the filing date of the application for commencement of rehabilitation procedures, was May 26, 2017. Accordingly, the Plaintiff’s claim for the purchase of goods amounting to KRW 1,49,300, May 26, 2017, constitutes a priority claim under Article 179(1)8-2 of the Debtor Rehabilitation Act.

Nevertheless, the lower court determined that the Plaintiff’s claim for the purchase of goods amounting to KRW 1,49,300 on May 26, 2017 was a rehabilitation claim. In the lower judgment, it erred by calculating the period prescribed under Article 179(1)8-2 of the Debtor Rehabilitation Act and violating the Act, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

2. Profits in a lawsuit concerning claims for the amount of KRW 464,200, May 22, 2017, among the Plaintiff’s claims

Of the instant lawsuit, the part concerning the claim for the price of goods amounting to KRW 464,200, May 22, 2017 is considered ex officio.

Any rehabilitation creditor who intends to participate in rehabilitation procedures under the Debtor Rehabilitation Act shall file a report on rehabilitation claims (Article 148(1) of the Debtor Rehabilitation Act); when an objection is raised against any reported rehabilitation claim, all of the objectors may file an objection with the court to the final claim inspection judgment (Article 170(1) of the Debtor Rehabilitation Act); and any person dissatisfied with such judgment may file a lawsuit seeking objection against the final claim inspection judgment (Article 171(1) of the Debtor Rehabilitation Act). When no objection is raised against any reported rehabilitation claim, the same shall be confirmed as the reported claim is (Article 166 subparag. 1 of the Debtor Rehabilitation Act); when any entry into the final rehabilitation claim in the table of rehabilitation creditors becomes effective as the final and conclusive judgment (Article 168 of the Debtor Rehabilitation Act); and any lawsuit involving any pending rehabilitation claim is illegal as there is no benefit of the lawsuit (see Supreme Court Decision 2013Da17971, Jun. 26, 2014).

According to the records, the Plaintiff reported the Defendant’s claim for the amount of KRW 464,20,00 as a rehabilitation claim in the rehabilitation procedure, May 22, 2017, as it is, and the Defendant confirmed the content of the claim as stated in the list of rehabilitation creditors. Therefore, the part claiming the payment of the amount of KRW 464,200 on May 22, 2017, among the instant lawsuit, became illegal because it became final and conclusive as stated in the list of rehabilitation creditors as reported in the rehabilitation procedures.

Unlike this, the reasoning of the lower judgment that the filing of a lawsuit seeking the payment of the rehabilitation claim of this case, rather than exercising the right according to the rehabilitation procedure on the claim for the price of goods worth KRW 464,200, May 22, 2017, is inappropriate in the reasoning of the lower judgment that there is no benefit of protecting the rights, but the conclusion that dismissed this part

3. Conclusion

Of the lower judgment, the part concerning the claim for the payment of goods KRW 1,49,300 on May 26, 2017 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Min You-sook (Presiding Justice)