[1] Whether Article 149 and Article 147 (2) of the former Company Reorganization Act concerning the person who is responsible for taking over a lawsuit and the period of taking over a lawsuit infringe on the right to trial under the Constitution (negative)

[2] Where a request for resumption of a lawsuit is filed after one month has elapsed from the date of investigation, the legality of the lawsuit for confirmation of the reorganization claim and security right (Additional Law)

[3] The purport of Article 146 of the former Company Reorganization Act concerning the notice duty of the court of reorganization and its notification method

[1] In order for a company reorganization procedure to coordinate the interests of creditors, shareholders, and other interested persons and to achieve the purpose of reorganization and reorganization of the company's business facing distress due to financial deficiencies, it is necessary to adjust the interests of interested persons, such as reorganization creditors, reorganization security holders, and the scope of their rights more accurately and finally. To this end, it is necessary to adjust the interests of many interested persons in a lump sum. In particular, it is necessary to promptly proceed with the reorganization procedure including the preparation of the reorganization plan by promptly establishing obligations owed by the reorganization company, thereby promoting a rapid stability of legal relations. One-month period is a relatively sufficient period for applying for taking over the suspended litigation, and it cannot be viewed as the rejection of the trial in fact. In light of the provisions of the law itself, it is necessary under the Constitution that the provisions of the law, which stipulate that if the reorganization claim or security interest is not complied with one-month application period, the right of action may be lost if it is not complied with, or if it is sufficiently limited to the right holder of the company's right to request the reorganization procedure without reasonable warning under Article 14(2).

[2] The constitutional interpretation of Article 149(2) and Article 147(2) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) to deem that a reorganization creditor, reorganization security holder, or reorganization security holder dissatisfied with a reported right to file an objection to file an application for the resumption of a lawsuit after one month from the date of the investigation of the pertinent right to file an objection to such a right to file an objection as unlawful is the constitutional interpretation of Article 149(2) and Article 147(2) of the former Company Reorganization Act. Since the reorganization creditor, reorganization security holder, or reorganization security holder was aware of the fact that he/she raised an objection to the reported right by the notice of the court of reorganization, or did not know such fact, the starting date of the period of filing an application for the resumption of the reorganization claim and security holder

[3] The purpose of Article 146 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) which provides that when there is an objection against the rights of reorganization creditors, etc. who were absent on the date of investigation, notification to the right holder shall be given, it shall not be deemed that the court notifies the reorganization creditors, reorganization security holders, of the fact that they are not absent on the date of investigation so that they cannot be denied the qualification for participation in reorganization proceedings by going against the period of request for continuation, etc., and it shall not be deemed that the reorganization creditors, reorganization security holders, and reorganization security holders may not be deemed that they intend to take the starting point of the period of request for continuation for one month from the date of receipt of the court's objection as the date of receipt of the court's objection, and the notification shall be made in such a way that the reorganization creditors, reorganization security holders, and other places of service

[1] Articles 147(2) (see current Article 170(2)), 149 (see current Article 172 of the Debtor Rehabilitation and Bankruptcy Act), 11(1), 27(1), and 37(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), 149 of the former Company Reorganization Act (see current Article 172 of the Debtor Rehabilitation and Bankruptcy Act), 11(1), 27(1), and 37(2) of the Constitution / [2] Article 147(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), Article 149 (see current Article 170(2) of the Debtor Rehabilitation and Bankruptcy Act, Article 172 of the Debtor Rehabilitation and Bankruptcy Act (see current Article 178(2) of the Debtor Rehabilitation and Bankruptcy Act) of the Act)

[1] Constitutional Court en banc Order 95Hun-Ga15, Aug. 29, 1996 (Hun-Ga17, 444) en banc Order 2006Hun-Ba11, Dec. 27, 2007 (Hun-Gong135, 76) / [2] Supreme Court Decision 89Da52312, Feb. 11, 2000 (Gong2000Sang, 679), Supreme Court Decision 2002Da56505, Feb. 11, 2003 (Gong2005, 2079)

Patent Court Decision 201Hun-Ba416 decided May 1, 201

The non-party administrator of Scene Scene Scene Scene Co., Ltd., Ltd. (Law Firm Schen, Attorneys Gyeong-Jon et al., Counsel for the plaintiff-appellant-appellant)

Seoul High Court Decision 2005Na16647 delivered on December 28, 2005

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 4

Article 149(1) 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, hereinafter “former Company Reorganization Act”). Article 149(2) of the same Act imposes the obligation to take over the lawsuit interrupted by the decision to commence the company on the right holder, who is not the administrator of the reorganization company, and Article 147(2) of the same Act which applies mutatis mutandis under paragraph (2) of the same Article limits the period of request for resumption to one month from the date of investigation. In order for the company reorganization to coordinate the interests of creditors, shareholders, and other interested persons and to achieve the purpose of reorganization and reorganization of the company faced with insolvency due to financial deficiencies, it is necessary to adjust the above provisions to the extent of rights of interested persons such as reorganization creditors, security interest holders, etc., and to achieve the reasonable period of request for continuation of reorganization proceedings by promptly establishing obligations owed by the majority parties, and thus, it is necessary that the above provisions of the Constitutional Court cannot be seen as a simple period of procedure.

Therefore, it is constitutional to view that a reorganization creditor, reorganization security holder, or reorganization security holder who has raised an objection to the reported right as unlawful in a lawsuit filed for the commencement of the lawsuit after one month from the date of the investigation of the relevant right as unlawful (see, e.g., Supreme Court Decisions 89Da4113, Apr. 11, 1989; 9Da52312, Feb. 11, 2000; 99Da52312, Feb. 11, 200). Since it was known that he/she had an objection to the reported right by the notice of the court of reorganization or reorganization, or did not know such objection, the starting date of the period of the commencement of the request for resumption of one month cannot be deemed as the date when the reorganization creditor, reorganization security holder received an objection, or the actual date of such objection (see, e.g., Supreme Court Decisions 200Da11461, May 16, 2000; 205Da5655, Mar. 615, 2015

Meanwhile, Article 146 of the former Company Reorganization Act provides that "if a reorganization creditor or reorganization security holder fails to attend on the date of investigation of a reorganization claim or security, and there is an objection to such right, the court shall notify the right holder thereof." The purport of the above provision is that the court shall call attention to the court so that the reorganization creditor or reorganization security holder absent on the date of investigation does not deny the qualification for participation in the reorganization proceedings because of the period of request for continuation, etc., the period of request for succession, etc., and it shall not be deemed that the time when the reorganization creditor or reorganization security holder receives the notice of objection from the court is the starting point of counting the period of request for continuation for one month, and the notification shall be made in such a manner that it is deemed reasonable as the address, residence or other place of service reported by the reorganization creditor, reorganization security holder, and it does not necessarily require the delivery method or requirements as stipulated in

In light of the above legal principles and records, the court below held that the lawsuit for confirmation of reorganization claim of this case was unlawful since it was filed one month after the special fraud date of reorganization claim of the plaintiff against Sweak Sweak Sweaks (hereinafter "Sweaks"), and the defendant's objection to the plaintiff's reported claim was defective, the reorganization court served a notice of objection to the location of the principal office stated in the plaintiff's report of reorganization claim of the plaintiff, and it cannot be deemed that there was any error in the measure of not giving subsequent notice when it was received by the plaintiff's representative address after it was impossible to serve the notice again to the plaintiff's representative address, and it cannot be viewed that there was any error in the measure of not giving subsequent notice after it was received by the person who is called his employee. Whether there was an objection to the original reorganization court's notice can not affect the plaintiff's expiration of the reorganization claim of this case, and thus, it did not err in the misapprehension of legal principles as to interpretation of Article 149 (1) and Article 147 (2) of the former Company Reorganization Act, contrary to the grounds for appeal.

2. As to the grounds of appeal Nos. 2 and 3

In light of the records, the court below is just in holding that the defendant notified the first instance court of the fact that the decision was made to commence the company's reorganization proceedings against Sweak Sweak Sweak, and it cannot be deemed that the plaintiff provided a false foundation of trust with regard to the observance of the period of request for continuation merely because the defendant was absent on the date of pleading of the lawsuit in this case that was proceeding with the suspension of the proceedings, and that the lawsuit for confirmation of the reorganization claim in this case is unlawful because the lawsuit for confirmation of the reorganization claim in this case does not constitute a violation of the prior act, and there is no error in the misapprehension of legal principles as to the interpretation of Article 149 (1) and (2) and Article 147 (1) and (2) of the former Company Reorganization Act, as otherwise alleged in the ground of appeal.

In addition, the court below erred in the misapprehension of legal principles in holding that the pending defect in the procedure of this case is subject to waiver or loss of the right to object after the decision to commence the corporate reorganization proceedings against Schan Schen Scingro, and that there was an error in violation of the rules of evidence in finding the facts as if he illegally removed the building in the status of the decision to suspend compulsory execution, even though Scingingro, Scingro, Inc. illegally removed the building in the status of the decision to suspend compulsory execution, and that it was against the rules of evidence as if he restored possession by his own ability. Thus, as long as the lawsuit to confirm the reorganization claim of this case should be dismissed in an unlawful manner, it merely

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)