In a case where Gap filed a lawsuit against Eul, claiming the price for goods and the damages for delay, and thereafter, the judgment of the court of first instance was rendered on the commencement of the rehabilitation procedure for Eul, and Byung was deemed the administrator; Eul filed a report on the price for the goods and the damages for delay as a rehabilitation claim within the rehabilitation claim reporting period; Byung filed an objection against Byung; Byung filed an application for Byung to take over the litigation procedure before one month has elapsed from the end of the inspection period of the rehabilitation claim and the rehabilitation security right; Byung filed an objection against Byung; and Byung did not take over the litigation procedure by the expiration of the above period, the case holding that Byung's principal and interest claims under the judgment of the court of first instance became final and conclusive as the rehabilitation claim regardless of Gap's request for taking over the lawsuit against Byung, on the grounds that Byung did not

A filed a lawsuit against B, claiming the price for goods and the damages for delay, and subsequently, the first instance court rendered a decision on the commencement of the rehabilitation procedure for B, and subsequently deemed C as C’s custodian. Upon reporting the price for the goods and the damages for delay as a rehabilitation claim within the rehabilitation claim reporting period, C filed an objection to C’s rejection of the full amount on the ground that C’s rehabilitation claim is in progress, and then C filed an objection to C’s acceptance of the litigation procedure before one month has elapsed from the end of the inspection period of the rehabilitation claim and the rehabilitation security right, but C’s application was not taken over until C’s expiration

The court of first instance held that since a final judgment referred to in Article 174 (1) of the Debtor Rehabilitation and Bankruptcy Act is applicable to cases where a final judgment exists, and since a lawsuit is pending in the court at the time the rehabilitation procedures commence, Byung who is an objection thereto shall take over the litigation procedures against Gap who is a rehabilitation creditor pursuant to Articles 174 (2) and (3) and 170 (2) of the same Act within one month from the end of the inspection period for rehabilitation claims and rehabilitation security rights, and if not, Byung is deemed to have recognized the rehabilitation claim of the part thereof pursuant to Article 174 (4) of the same Act, Byung did not take over the lawsuit within the above period, and therefore, the principal and interest claim of the first instance judgment becomes final and conclusive as a rehabilitation claim regardless of Gap's request for taking over the lawsuit against Byung.

Articles 170(2) and 174 of the Debtor Rehabilitation and Bankruptcy Act

Plaintiff (Law Firm Shin, Attorneys Park Won-won et al., Counsel for the plaintiff-appellant)

The administrator of the original superior company, who is the taking-off of the lawsuit of the original superior company, is the defendant (the Central Law Firm, Attorney Cho Jong-hee, Counsel for the defendant-appellant)

Busan District Court Decision 2017Da24737 Decided December 11, 2018

October 16, 2019

1. Upon an exchange change at the trial, it is confirmed that the Plaintiff’s rehabilitation claim against the original debtor company for the rehabilitation is 34,942,479 won and the amount calculated at a rate of 15% per annum from July 29, 2017 to May 31, 2019, and 12% per annum from the next day to the date of full payment.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The plaintiff's rehabilitation debtor company is confirmed to be the amount calculated at the rate of 15% per annum from the day following the delivery of a copy of the complaint of this case to May 31, 2019, and the amount calculated at the rate of 12% per annum from the next day to the day of complete payment (as of May 24, 2019, the plaintiff seeks confirmation of the rehabilitation claim in the court of first instance after the commencement of the rehabilitation procedure for the plaintiff's rehabilitation debtor company (hereinafter referred to as "original beneficiary"), regardless of whether it was before or after the commencement of the rehabilitation procedure (as of May 24, 2019, the plaintiff is changed to exchange the lawsuit seeking confirmation of the rehabilitation claim).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Progress, etc. of the instant lawsuit

A. On July 7, 2017, the Plaintiff filed the instant lawsuit against the prime contractor for the payment of KRW 34,942,479 and damages for delay thereof. The first instance court accepted the Plaintiff’s claim on December 11, 2018.

B. Meanwhile, on the other hand, on January 9, 2019, the original Co., Ltd. filed an application for commencing rehabilitation procedures at this Court 2019 Ma1001, and the said court rendered a decision on commencing rehabilitation procedures on May 24, 2019, considered the Defendant as a custodian, and set the inspection period of rehabilitation claims and rehabilitation security rights as the inspection period until July 12, 2019 (hereinafter “inspection period”).

C. The Plaintiff filed a report on the amount of principal of the instant claim as rehabilitation claim within the rehabilitation claim reporting period, and damages for delay calculated at the rate of 15% per annum from May 24, 2019, and damages for delay calculated at the rate of 9,534,98 won and 15% per annum from May 23, 2019. However, the Defendant filed an objection on the ground that the lawsuit is pending.

D. On August 2, 2019, the period from July 12, 2019, which was the end of the rehabilitation claim inspection period, the Plaintiff filed an application with this court for taking over the instant litigation procedure.

[Reasons for Recognition] Unsatisfy, Gap evidence 9, 10, Eul evidence 11, the purport of the whole pleadings

2. Determination

A. Relevant legal principles

Where any objection is raised to a rehabilitation claim or title with executory power pursuant to the provisions of Article 174 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Act"), an objector may raise an objection only according to the litigation procedures that the debtor is permitted to take (paragraph (1)); where a lawsuit on the rehabilitation claim continues to exist in the court, an objector shall take over the litigation procedures with the rehabilitation creditor as other party (Paragraph (2)); and where a lawsuit on the rehabilitation claim continues to exist in the court, an objection shall take over the litigation procedures with the rehabilitation creditor as other party (Paragraph (Article 2). A request for taking over the litigation procedures shall be made within one month from the end of the inspection period or from the special inspection date (Article 170(2)). In cases where an objection is not taken over pursuant to the provisions of paragraphs (2) and (3) of the aforesaid Article, if the custodian is a custodian, such

B. Pursuant to the above legal provisions, the part of the “payment damages calculated at the rate of 15% per annum from July 29, 2017 to the date of full payment” as to this case’s health department, “34,942,479 won, and damages for delay calculated at the rate of 15% per annum from July 29, 2017, constitutes a case where a final judgment is rendered under Article 174(1) of the above Act. Furthermore, since a lawsuit is pending in a court at the time of commencement of rehabilitation procedures, the Defendant, who is an objection, shall take over the litigation procedures against the Plaintiff, who is a rehabilitation creditor, within one month from the end of the inspection period pursuant to Articles 174(2) and (3) and 170(2) of the above legal provisions, and if not, the Defendant recognized the above part of the rehabilitation claim pursuant to Article 174(4) of the above Act. However, the Plaintiff’s claim under the judgment of the first instance becomes final and conclusive as a rehabilitation claim regardless of whether the Plaintiff’s claim against the Defendant.

C. Therefore, the Plaintiff’s rehabilitation claim against the original superior company is a total of 34,942,479 won for the unpaid goods and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from July 29, 2017 to May 31, 2019, following the delivery of a copy of the complaint of this case, as sought by the Plaintiff, after the date of the supply of the goods.

3. Conclusion

It is so decided as per Disposition by the plaintiff to accept the claim of this case which the plaintiff changed in exchange at the trial.

Judges Sung-dae (Presiding Judge) (Presiding Justice)