After the commencement of rehabilitation procedures for the medical corporation Gap who operates the medical institution, the case holding that in case where Eul and Eul, designated as the priority negotiation object, concluded a free contribution and loan agreement with the medical corporation Gap, stating that " Eul had the right to recommend executives of the medical corporation Gap and Eul," and the rehabilitation plan was resolved at the meeting of interested persons, the case holding that in case where the free contribution agreement and the rehabilitation plan are not contrary to Article 33 of the Medical Service Act that restricts the opening entity of the medical institution, and that other requirements provided for in Article 243 (1) of the Debtor Rehabilitation and Bankruptcy Act are also satisfied, the rehabilitation plan was approved

After the commencement of rehabilitation procedures for the medical corporation Gap who operates the medical institution, the case holding that Article 33 of the Medical Service Act limits the subject of establishment of the medical institution to doctors, medical corporations, non-profit corporations, etc., and Article 243 (1) of the Debtor Rehabilitation and Bankruptcy Act, in a case where the rehabilitation plan was resolved at the meeting of interested persons, the administrator entered into a free contribution and loan agreement with the medical corporation Eul, designated as the subject of priority negotiation, and the subject of priority negotiation, and the subject of establishment and operation of the medical institution, and the subject of establishment and operation of the medical institution is still the medical corporation, even though the Eul is not a person who contributed funds to and lent the medical corporation, and the subject of establishment and operation of the medical institution is merely a person who has the authority to recommend the officers of the medical corporation Gap by making contributions and lending, and it is difficult to view that the subject of such contribution agreement and rehabilitation plan are contrary to the provisions of the Medical Service Act that limits the establishment of the medical institution.

Articles 242(1) and 243(1) of the Debtor Rehabilitation and Bankruptcy Act, Article 33 of the Medical Service Act

The Berne Medical Foundation increased by a medical corporation

○ ○

The attached rehabilitation plan shall be authorized.

1. The outline of the debtor;

(a) Establishment and operation;

The debtor was established on June 19, 2001 for the purpose of establishing and operating a medical institution, and the non-applicant 1 took office as the representative of the debtor. On May 2002, the debtor certified the use of the name of the hospital by the Bobane medical corporation in the UK and opened the Bobane Child Hospital on October 2006, and the Bobane International Hospital on November 201.

(b) Financial failure;

The debtor acquired land for the opening of the hospital and incurred a large amount of debt in the new construction of the building, and the financial difficulties have increased by issuing or endorsement bills in the name of the debtor on behalf of the company operated by the non-applicant 1 on behalf of the non-applicant 1, and by having the debtor bear the joint and several liability for the above company.

2. Progress of rehabilitation procedures;

(a) Progress the previous rehabilitation procedures;

On September 16, 2015, the debtor filed an application for commencement of rehabilitation procedures with Suwon District Court 2015 Ma13, and received a decision on commencement of rehabilitation procedures on October 6, 2015. After which the debtor received a decision on commencement of rehabilitation procedures on October 6, 2015, the debtor paid 60% of guaranteed claims, 50% of specially related claims, and exempted the remainder of the rehabilitation claims, and submitted a rehabilitation plan to pay 10% of the rehabilitation security rights and other rehabilitation claims. On May 25, 2016, the debtor submitted the rehabilitation plan to the assembly of related persons for the examination and resolution of the rehabilitation plan held on May 25, 2016, the above rehabilitation plan was rejected with the consent of 10% in the rehabilitation secured creditors and 46.8% in the rehabilitation creditors group, and the above court decided to discontinue rehabilitation procedures

B. The progress of the rehabilitation procedure of this case

On June 9, 2016, the debtor filed an application for commencing rehabilitation procedures again with this court. On June 28, 2016, this court appointed one of the directors as a custodian, while commencing the rehabilitation procedure on June 28, 2016.

On October 18, 2016, a custodian entered into a free contribution or loan agreement (hereinafter “instant contract”) with a debtor on November 4, 2016, with the permission from this court to designate a hotel hotel as a priority negotiation subject, and entered into a contract for free contribution or loan agreement (hereinafter “instant contract”) with the hotel hotel with the debtor on November 4, 2016.

On November 18, 2016, a custodian submitted a rehabilitation plan to pay in cash 10% for specially related persons among rehabilitation claims, and the remainder is exempted. The rehabilitation security rights and other rehabilitation claims submitted a rehabilitation plan to pay in full within five business days after approval of the total rehabilitation plan, but on December 12, 2016, submitted the rehabilitation plan (the second amendment) to raise the rate of cash repayment for the above specially related persons' claims to 25%. On December 14, 2016, the meeting of interested persons was held to examine the rehabilitation plan (the second amendment) but the meeting of interested persons was postponed to examine the rehabilitation plan to further examine the classification of specially related persons among the rehabilitation claims.

Then, on January 2, 2017, Sari Industries Construction Co., Ltd., which is classified as a specially related person in the above rehabilitation plan, dismissed the application for challenge against the full bench No. 2017Kagi97, Jan. 13, 2017, on January 2, 2017, the Seoul Central District Court 2017Kagi444, Taejin Sari 2017, Jan. 6, 2017, and the application for challenge against the full bench No. 2017Kagi97, Jan. 10, 2017. The court dismissed the application for challenge against the Supreme Court No. 2017Kagi44, Jan. 13, 2017, which became final and conclusive as the reappeal of the Supreme Court on July 28, 2017, and this court dismissed the application for challenge against the Supreme Court No. 20175, Sep. 11, 2017.

On September 14, 2017, the administrator revised the rehabilitation plan several times, and on September 14, 2017, paid 80% in cash for the responsible claims among rehabilitation creditors, exempted the remainder, and on rehabilitation security rights and other rehabilitation claims, submitted the rehabilitation plan (the fifth amendment; hereinafter “instant rehabilitation plan”) to pay the total amount of the rehabilitation security rights and other rehabilitation claims within one month after the approval of the rehabilitation plan.

On September 19, 2017, the instant rehabilitation plan was resolved upon with the consent of 100% for rehabilitation secured creditors and 78.7% for rehabilitation creditors at the meeting of interested persons for the examination and resolution of the rehabilitation plan held on September 19, 2017.

3. Judgment on major issues

The following issues are examined about whether the requirements for authorization of the rehabilitation plan of this case are met.

A. As to violation of the Medical Service Act and the Civil Act

We examine whether the instant contract and the instant rehabilitation plan reflecting the contract violate the Medical Service Act that limits the main body of operation of medical institutions.

Article 33 of the Medical Service Act limits the establishment entity of a medical institution to medical doctors, medical corporations, non-profit corporations, etc. In this case, the entity that establishes and operates Bobasan Hospital, etc., which is a medical corporation, is a debtor who is a medical corporation, and the instant gratuitous contributor is merely a person who contributed to and lends the debtor’s funds. In addition, even if the contributor has the authority to recommend the debtor’s executive through contributions and loans, the entity that establishes and operates a medical institution is still a debtor, and the entity that establishes and operates the medical institution does not change. Therefore, it is difficult to deem that the instant contract and rehabilitation plan contravene

Furthermore, Article 31 of the Civil Act provides that a juristic person shall not be established unless it is governed by the provisions of the law. The substance of the contract in this case is that the gratuitous contributor in this case has the right to recommend the director of the debtor and contributed funds free of charge and has the right to recommend the director of the debtor. Thus, the approval of the rehabilitation plan in this case only requires the change to the debtor's officer's position, and the

B. Whether it constitutes prohibited conduct of foreign-capital invested companies

We examine the issues that the free contributor of this case is a foreign-capital invested company and cannot establish a medical institution.

As seen earlier, the instant contract only results in the gratuitous contributor of the medical corporation to have the right to recommend executives of the medical corporation as the contributor or creditor of the medical corporation, and it cannot be seen as the same as the gratuitous contributor directly opens a medical institution. Therefore, it is unnecessary to examine the issues related to foreign-invested enterprises.

(c) Permission from the competent authority;

In order to implement the instant rehabilitation plan, the permission of the Sungnam market, which is the competent authority, has expressed the opinion opposing the present rehabilitation plan, so whether there is no possibility to implement the instant rehabilitation plan, or whether there is a difference in the opinion of the administrative authority in terms of the matters requiring the permission, authorization, license, and other disposition of the administrative agency in the rehabilitation plan.

The main point of the written opinion submitted several times by the Sungnam market is that if a medical corporation's basic property disposition is accompanied, it is necessary to obtain permission from the competent authority, and that excessive loans exceeding the appraised value of the corporation and the excessive debt ratio are not adequate.

According to the rehabilitation plan of this case, since the free contributor of this case is incorporated into the debtor's basic property after the approval of the rehabilitation plan and used it for the repayment of the debt, permission of the Sungnam market, which is the competent administrative agency, is deemed necessary to use the above free contribution. Therefore, the rehabilitation plan of this case has the same opinion as the administrative agency about the matters requiring permission of the administrative agency. Since the opinion of the Sungnam market does not oppose the rehabilitation plan of this case, matters requiring permission, authorization, license, and other disposition of the administrative agency are not different in terms of the opinion of the administrative agency. In addition, according to the rehabilitation plan of this case, even if the permission of the Sungnam market is not obtained with respect to the use of the free contribution as the financial resources for repayment, the rehabilitation plan of this case can be repaid with the remaining funds, regardless of whether permission of the Seongbuknam market is granted.

On the other hand, the opinion of the Sungnam market on the debt ratio seems to have expressed the opinion as the competent authority to properly supervise the debtor, and therefore the contents of the opinion do not affect the judgment on the requirements for authorization of the rehabilitation plan in this case.

D. Concerning defects in an application for commencing rehabilitation procedures

The application for commencement of the rehabilitation procedure of this case is based on the defective resolution of the board of directors, and it was made by a defective resolution of the board of directors concerning the application for commencement of rehabilitation procedures. Therefore, it is examined whether the rehabilitation procedure of this case was unlawful and failed to meet the requirements for

The argument disputing the legality of the rehabilitation procedure on the grounds of the defect in the resolution of the board of directors is substantially the same as the argument disputing the legitimacy of the decision to commence the rehabilitation procedure. With respect to the decision to commence the rehabilitation procedure, the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) provides for the appeal procedure as an immediate appeal procedure (Articles 53 and 13(1)). The reason why the Act provides an immediate appeal against the decision to commence the rehabilitation procedure at the early stage of the rehabilitation procedure is to establish an institutional foundation for the administrator to stably proceed with the rehabilitation procedure after setting a statement of the final decision to commence the rehabilitation procedure, which is a collective debt mediation procedure, to coordinate various interested parties’ legal relations. Accordingly, allowing the claim as to the defect in the resolution of the board of directors on the application to commence the rehabilitation procedure at the authorization stage of the rehabilitation plan as to the legality of the rehabilitation procedure would result in the elimination of the purport of the provision on an immediate appeal against the decision to commence

Examining the instant case’s return, the said decision became final and conclusive without an immediate appeal after the decision on commencing the rehabilitation procedure was rendered on June 28, 2016. Accordingly, insofar as the decision on commencing the rehabilitation procedure becomes final and conclusive lawfully, and the custodian appointed by the court is a public trustee with the right to manage and dispose of the debtor’s business and property, and the rehabilitation procedure is carried out under the supervision of the court, it is reasonable to deem that the rehabilitation procedure of this case against the debtor was carried out in conformity with the statutory provisions in determining the requirements for authorization of the rehabilitation plan (Article 243(1)

(e) relating to the limits of time for resolution;

We examine whether the resolution of the rehabilitation plan of this case was made with the deadline for resolution set forth in Article 239 of the Act.

As seen earlier, the rehabilitation procedure in this case was suspended due to the motion for challenge, and thus, the period in which the rehabilitation procedure was suspended pursuant to the main sentence of Article 48 of the Civil Procedure Act does not include the period in which the resolution was passed pursuant to the above Act (On the other hand, even if the motion for challenge was filed, the court made a decision to designate the date for granting permission to conduct an act necessary for the debtor's business maintenance, and for holding the meeting of interested parties for the examination and resolution of the rehabilitation plan in accordance with the proviso of Article 48 of the Civil Procedure Act that exceptionally permits the motion for challenge. Therefore, in this case, as seen earlier, as seen earlier, the period from January 2, 2017 in which the initial motion for challenge was rejected until September 11, 2017 shall be excluded from the period of resolution. Thus, the rehabilitation plan in this case shall be deemed

4. Conclusion

Thus, the rehabilitation plan of this case was resolved at the meeting of interested persons for the resolution of the rehabilitation plan, and it is recognized that all the requirements stipulated in Article 243(1) of the Act are met, so it is decided as per the disposition to authorize it.

Judges Lee Ji-hee (Presiding Judge) Contribution to the Constitution