1. The term “the term” means “the term” means “the term “the term” means “the term” means “the term” means “the term.

Debtor Rehabilitation Company Development Co., Ltd. and two others (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

February 27, 2014

Seoul Central District Court Decision 2012Gahap53180 Decided April 11, 2013

1. The judgment of the court of first instance, including the plaintiff's claim expanded at the trial court, shall be modified as follows.

A. Of the instant lawsuits, the part demanding payment of KRW 223,401,261 and KRW 198,059,40, among the above amounts, shall be dismissed with a rate of 6% per annum from June 26, 2012 to the service date of the duplicate of the instant complaint, and with a rate of 20% per annum from the following day to the date of full payment.

B. The Defendants are jointly and severally liable to the Plaintiff for 228,478,250 won and the above amount:

(i) As regards KRW 68,543,475, May 27, 2010;

Dice 68,543,475 won from June 19, 2010;

Article 79,967,387 won from April 24, 2011:

Applicant 11,423,913 won from November 22, 2013;

By March 27, 2014, 6% per annum and 20% per annum from the next day to the day of full payment.

C. All remaining claims of the Plaintiff are dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

3. The above paragraph 1(b) may be provisionally executed.

1. Purport of claim

Defendants shall jointly and severally pay to the Plaintiff the amount of KRW 472,594,247 and KRW 415,113,737 each year from June 26, 2012 to the service date of the duplicate of the instant complaint; KRW 20% each year from the next day to the date of complete payment; KRW 11,423,913 each year from June 28, 2013 to October 17, 2013 to the service date of the duplicate of the application for modification of the purport of the instant claim and the cause of the claim in this case; KRW 6% each year from the next day to the date of complete payment (the Plaintiff extended its claim from the trial).

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and all of the Plaintiff’s claims against the Defendants corresponding to the revocation part are dismissed.

1. Facts of recognition;

(a) Conclusion, implementation, etc. of a design service contract;

1) On April 23, 2010, the Plaintiff, the comprehensive architect office, the comprehensive architect office, the IMM architect office (hereinafter “joint design group”) changed the name of the company, which was engaged in the manufacturing and selling of electronic equipment, as seen below, to the Ku Treatment Automobile Sales Co., Ltd. (hereinafter “SP”) as a surviving company after the corporate division, as well as 10 companies (hereinafter “Gu Treatment Product Development Co., Ltd.”) including, regardless of whether before and after the corporate division, the joint design group ordered construction of the I-TB building (hereinafter “instant construction”), the basic design and design-related work related to the preparation and design of books, the preparation and implementation of materials related to the design deliberation, the preparation of intellectual property register, etc., and the execution of the construction work and the completion of each of the construction work, and the details of the contract are 10 companies (hereinafter “Gu Treatment Product Development Co., Ltd.”), 400, 700, 700, 400, 750, 700

2) In accordance with the instant contract, the Plaintiff submitted a contract guarantee for basic design services to the Gu Treatment Board on April 26, 2010, and a contract guarantee for working design services on July 23, 2010, respectively. On April 14, 2010, the former Treatment Board, etc. received a bid document for the basic design for the instant construction works from the Incheon Metropolitan Government Free Economic Zone Authority, and on May 13, 2010, was selected as an eligible working design on May 18, 2010 after deliberation on the basic design by the Incheon Metropolitan City Free Economic Zone Authority. After receiving a conditional resolution on construction deliberation from the Free Economic Zone Authority of Incheon Metropolitan City on November 12, 2010, the Plaintiff completed the authorization and permission with a construction permit granted on November 5, 2011, and the Plaintiff supplied construction drawings including design drawings to the former Treatment Service Board until February 24, 2011.

3) With respect to the instant construction project, a building permit was obtained from Incheon Metropolitan City on February 7, 2013, the Joint Design Group submitted a document for approval for use on February 8, 2013, and obtained a provisional use approval from Incheon Metropolitan City on February 22, 2013, and completed approval for use on May 25, 2013, and obtained the certificate of approval for use. The Plaintiff completed the supply of the books of the building management ledger on June 27, 2013.

4) Pursuant to Article 9(1)3 of the instant contract, the Plaintiff claimed a service payment under the instant contract (hereinafter “instant service payment”) from the former Medical Service Board as follows. However, the former Medical Service Board did not pay the service payment claimed by the Plaintiff.

The claim amount (including value-added tax) based on the start money of April 26, 2010 on the base date of the request for the classification in the table contained in the main sentence (including the value-added tax) and the start money of KRW 9,029,70 on May 19, 2010 and KRW 68,543,475 on July 23, 2010 and KRW 426,537,650 on October 31, 2010.

(b) the commencement of rehabilitation procedures for the old Treatment Commission and the progress of issues thereafter;

1) On August 10, 201, the former Treatment Review Board received a decision to commence rehabilitation procedures in the Seoul Central District Court 201 Gohap105 Debtor Rehabilitation case (hereinafter “instant rehabilitation procedures”), and the Nonparty was appointed as the manager of the former Treatment Review Board.

2) In the instant rehabilitation procedure on September 2, 2011, the Plaintiff notified the Nonparty, who was in charge of the former Medical Treatment Review Board, of whether the contract of this case was terminated, terminated, or performed, pursuant to Article 119(2) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). On November 14, 2011, the custodian notified the Plaintiff that he would perform the instant contract (maintenance).

3) On December 9, 201, the former Treatment Review Board received a decision to authorize the rehabilitation plan.

4) On December 19, 201, according to the approved rehabilitation plan, the former Medical Service Commission was divided into Daewoodo Development Co., Ltd., the Defendant Treatment Industry Development Co., Ltd. (hereinafter “Defendant Treatment Industry Development”), the Defendant Treatment Automobile Sales Co., Ltd. (hereinafter “Defendant Treatment Automobile Sales Co., Ltd.”), and the Defendant Treatment Automobile Sales Co., Ltd. (hereinafter “Defendant Treatment Automobile Sales”) with the change of the company name of the former Medical Service Commission as a divided surviving company on December 19, 201, according to the approved rehabilitation plan. Since the former Medical Service Commission’s manager, a rehabilitation company, was changed to the Defendant’s order on February 7, 2013, the latter Defendant taken over the lawsuit (hereinafter “Defendant’s manager”).

[Reasons for Recognition] The facts without dispute, Gap evidence 1, Gap evidence 3 through 15-5, Gap evidence 23-1 through Gap evidence 27-16, Gap evidence 30, Gap evidence 35 through Gap evidence 64, Gap evidence 69 through Gap evidence 75, the purport of the whole pleadings, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The Plaintiff asserted that he/she had a claim for the service payment of this case against the Plaintiff, and filed a lawsuit of this case seeking payment of the service payment of this case against the Defendant’s treatment industry development divided in the Defendant’s administrator and the former Medical Service Self-Governing Board, and Defendant’s self-employed car sales. On this point, the Defendants asserted that the lawsuit of this case, the interest of which is lacking due to the following reasons

1) The instant service contract does not constitute an executory contract provided for in Article 119 of the Debtor Rehabilitation Act, since the Plaintiff’s business performed after the decision to commence rehabilitation procedures for the pre-approval of the joint design group under the instant service contract, including the duty to prepare (construction) books and the duty to supply the books of buildings and the duty to supply the books, is merely an incidental duty or a duty to cooperate with the shop design stipulated under the instant service contract, and does not have an equal contractual relationship. Therefore, the instant service contract does not constitute an executory contract provided for in Article 119 of the Debtor Rehabilitation Act. Therefore, since the instant service payment claim is a rehabilitation claim, it is unlawful for the Plaintiff to seek payment

2) Design service duties stipulated in the instant contract are differentiated, and the payment of the instant service price is a way to confirm and pay the final judgment for each interim process. As such, a claim for service payment for the portion of design service that was completed prior to the commencement order of rehabilitation procedures ought to be deemed rehabilitation claims. Therefore, it is unlawful for the Plaintiff to seek the payment of this part of the service price through a separate lawsuit irrespective of the former Medical Service Commission’s rehabilitation plan. In addition, even if the entire design service under the instant contract is not indivisible, at least the cost of the service under the instant contract, under the basic design contract, the payment of the cost and the service under the shop design contract, and the payment of the cost are divisible. Accordingly, the service price for the basic design constitutes rehabilitation claims. Therefore, it is unlawful for the Plaintiff to seek the payment of the basic design through a separate lawsuit

B. Determination

1) First, we examine the Defendants’ assertion that the instant contract does not constitute an executory bilateral contract under Article 119 of the Debtor Rehabilitation Act and thus, there is no interest in the lawsuit.

Bilateral contract under Article 119 of the Debtor Rehabilitation Act, which grants an option to perform or cancel the contract to the administrator in the event of a bilateral contract not performed by both parties, refers to a contract under which both parties bear an equal contractual obligation, and is originally intended to function as a security in the formation, performance, and existing legal and economic relationship between both parties. Thus, for the application of the above provision, the whole or part of the contractual obligation under an equal contractual relationship should not be performed, and even if the contractual obligation is related to the contractual obligation, the above provision does not apply to cases where the obligation to cooperate or the incidental obligation is not fulfilled (see Supreme Court Decisions 92Da56865, Jan. 11, 1994; 2005Da38263, Sept. 6, 2007, etc.).

As to whether the duty to use the books and the duty to supply books and the duty to supply books are contractual obligations on mutually equal terms on bilateral contract terms, among the service duties under the instant contract, which have not been performed until the time the decision to commence the rehabilitation procedure was made. As such, the following circumstances revealed by the above-mentioned facts, etc., ① “support for the administrative work related to the preparation and completion of approval books” under Article 6 and Appendix 1 of the instant contract, and “production of completion books” under Article 2(28) of the “Design Instructions” are stipulated as the scope of the joint design group’s business. Article 4 of the instant contract prescribes the service period of “production of construction books and documents” independently from the period of basic design and working plans. ② Under Article 9 of the instant contract and Article 9 of the instant contract, the Plaintiff is not obliged to separately prepare and supply books and documents related to the construction of the books and documents attached to the instant contract, and there is no need to recognize that the Defendants were not obliged to use the books and documents as part of the execution order’s basic design and work drawings.

In addition, on October 17, 201, the former Medical Service Commission notified the Plaintiff that the Plaintiff would perform the instant contract at the time of the commencement of the rehabilitation procedure. On October 17, 201, the Plaintiff notified the Nonparty, the administrator of the former Medical Service Commission, who is a rehabilitation company, to confirm whether the contract of this case was rescinded or implemented, and the Nonparty notified the Plaintiff that he would perform the instant contract on November 14, 201.

According to this, in this case, the Plaintiff and the former Medical Service Board constitute a time when all of the instant contract, which is a bilateral contract under Article 119(1) of the Debtor Rehabilitation Act, has not yet been fulfilled at the time the rehabilitation procedure commenced, and the Nonparty, the administrator of the former Medical Service Board, who is the rehabilitation company, selected the implementation of the instant design service contract pursuant to Article 179(2) of the same Act. As such, the Plaintiff’s service payment claim constitutes a public-interest claim under Article 179(1)7 of the Debtor Rehabilitation Act. Therefore, barring any special circumstance, the Plaintiff may claim for the performance of the instant service payment claim against the Defendant without resorting to the rehabilitation procedure pursuant to Article 180(1) of the Debtor Rehabilitation Act.

The defendants' assertion on this is without merit.

2) Next, we examine the Defendants’ assertion to the effect that the claim for construction cost under the instant contract is divisible.

A) In the contract for construction works, even if there is an agreement to be paid the price according to the work terms and conditions, the construction works to be completed by the contractor are indivisible in principle. Thus, except in exceptional cases where the claim for the price occurred due to the cause prior to the commencement of rehabilitation procedures and the claim for the price for the construction works is not completed, if the entire construction works were not completed, the part of the original construction works shall be removed, and the contractor’s obligation for the said portion shall not be deemed to have been completed. Thus, in the absence of the payment for the completed construction works, rehabilitation procedures commence for the company which is the contractor, while the obligor was not paid the price for the completed construction works, and the other party notified the custodian of the rehabilitation company to confirm whether the contract of this case was rescinded, terminated, or performed, under Article 119(2) of the Debtor Rehabilitation Act, and the administrator selects the other party’s claim for the price for the already completed construction works upon receipt of the demand and choice for the performance of the obligation, etc. constitutes public-interest claim under Article 179(1)7 of the Debtor Rehabilitation Act (see, 612, Feb. 69, 69, 2012).

B) As to the instant case, when determining the time to pay the service price under the contract of this case, the time to claim the service price of the joint design group shall be determined and the old treatment board, etc. shall be paid within 30 days from the date of the claim. As to the time of the claim, it is recognized as follows: (a) the part on the basic design and the part on the working design after dividing it into the part on the basic design; (b) the time to submit the performance guarantee insurance policy and supplement the matters in the design deliberation after the successful tender of the working design in the case of the working design; and (c) the time to complete inspection after the delivery of construction books; and (d) the time to obtain the inspection after the delivery of construction books; and (e) the time to pay the above service price after the delivery of the construction books, it is difficult to view that the payment of the service price is made after the completion of the authorization or permission, and there is no other reasonable ground to recognize that the Defendants’ payment of the above service price is to be made separately for each of the above construction work payment of the specific work price and other than the construction work price.

C) However, the following circumstances revealed in the above facts, i.e., (i) the scope of services was divided into the basic design and the working design work in concluding the instant contract with the old medical service plate, etc.; (ii) the proviso to Article 4(2) of the instant contract, where the old medical service plate, etc. was not selected as an eligible business entity for the basic design, the service contract for the working design was automatically terminated in mind that the possibility of invalidation of the service contract for the basic design can be determined separately from the service contract for the basic design; and (iii) the details of the design cost attached to the instant contract are divided into the basic design service and the working design service in setting the service period or service cost and the time for payment for the basic design (the details of the design cost attached to the instant contract are divided into the basic design cost and the working design); (iii) the detailed implementation criteria for the basic design, etc. (Public Notice of the Ministry of Land, Infrastructure and Transport regarding the size, installation, outline, etc. of facilities and the preparation of the design document, etc. as necessary for the maintenance of the basic design document.

In addition, according to the above facts of recognition, the joint design group submitted a bid document for the basic design concerning the instant construction on April 14, 2010, and completed deliberation on the basic design on May 13, 2010, as the former treatment board, etc. was selected as an eligible person for the basic design on May 18, 2010, performed a service contract for the basic design among the instant contracts before the commencement of rehabilitation procedures for the former treatment board.

Therefore, it is difficult to view the part of the basic design service contract as an executory bilateral contract in the case of the instant contract, and thus, it is reasonable to see that the unpaid service cost of the instant contract concerning the basic design service contract is KRW 198,059,40 (i.e., retainer fee of KRW 99,029,700 + the remainder of KRW 99,029,700 + the remainder of KRW 99,029,70

Ultimately, the Plaintiff, under the Debtor Rehabilitation Act, shall seek for the performance of the basic design service payment claim under the instant contract against the Defendant custodian, etc. under the rehabilitation procedure. However, the Plaintiff filed a claim for the performance of the instant service payment claim under this part of the instant contract without resorting thereto. As such, the part seeking the payment of the unpaid basic design service cost and the damages for delay in the instant lawsuit (i.e., the unpaid basic design service cost of KRW 198,059,400 + damages for delay up to June 25, 2012 up to June 25, 2012 + damages for delay from 12,857,626 won + damages for delay up to June 25, 2012 for remainder payment until June 25, 2012; and damages for delay from June 26, 2012 to June 6, 2012 to 200 per annum of the instant complaint.

3. Judgment on the merits

A. Occurrence of a duty to pay part of the shop design service contract out of the instant service price

According to the above, the Plaintiff completed the obligation to provide services under the contract of this case. The Plaintiff’s claim on the part of the shop design service contract of this case is a public-interest claim, and the Plaintiff is entitled to claim for the performance of the instant contract without resorting to rehabilitation procedures pursuant to Article 180(1) of the Debtor Rehabilitation Act. The Plaintiff is jointly and severally liable for the payment of the part of the shop design service contract of this case’s administrator’s 228,478,250 won out of the contract of this case’s 20th day after the 20th day after the 20th day after the 20th day after the 20th day after the 1st day after the 3th day after the 20th day after the 3th day after the 20th day after the 1st day after the 20th day after the 20th day after the 3th day after the 20th day after the 20th day after the 3th day after the 20th day after the 20th day after the 3th day after the 3th day after the 20th day after the 3th day after the 20th day after the 3th day.

B. Determination as to the defendants' assertion

1) As to the assertion regarding joint and several liability

A) The defendants' assertion

In the rehabilitation procedure of this case, the former Medical Service Board was divided into the development of the Defendant Treatment Industry and the sale of the Defendant Self-Employed Vehicles, and was a surviving company. The approved rehabilitation plan succeeded to the development of the Defendant Treatment Industry as the part of the I-Tow Business related to the contract of this case. As such, the service payment obligation of this case is not the joint and several obligation of the Defendants, but the sole obligation of the development of the Defendant Treatment Industry.

Even if not, the defendants are liable only for the portion divided and transferred in the rehabilitation plan among the service charges of this case.

B) Determination

Under the rehabilitation procedure of this case, the following facts are acknowledged: “The part of the I-Tow Construction Corporation related to the contract of this case among the business areas of the former Madow Construction is transferred to the development of the defendant treatment industry; the service payment debt of the former Madow Construction Corporation is 356,069,848 won; 21,837,317 won for the development of the defendant treatment industry; and 37,206,571 won for the sale of the defendant's automobile; and each of the above divided companies is divided into 37,206,571 won for the sale of the above transferred debt; and the above divided companies are not in dispute between the parties; and there is no evidence of evidence as to No. 7; No. 81, No. 31, No. 31, No. 31, No. 41, and No. 1, No. 3206, and No. 1, No.

However, the rehabilitation plan cannot provide for the provisions that affect the rights of public-interest creditors, such as reduction and exemption of claims with respect to public-interest claims, and even if such provisions were provided in the rehabilitation plan, the effect of change of rights does not extend to public-interest creditors unless they consent to such change (see Supreme Court Decision 2009Da40349, Jan. 28, 2010, etc.). If a debtor who is a stock company pursuant to the rehabilitation plan is divided into a corporate pursuant to the rehabilitation plan pursuant to Article 272(4) and (1) of the Debtor Rehabilitation Act without the creditor protection procedure provided for in Article 527-5 of the Commercial Act, if the newly established or surviving company becomes liable for the company's obligations before such division without the creditor protection procedure provided for in Article 530(1) of the Commercial Act, it constitutes a provision that affects public-interest creditors' rights, and thus the change of rights can not affect public-interest creditors without the consent of the creditors.

As seen earlier, the part of the shop design service contract among the service payment claims of the Plaintiff’s service payment claims against the Plaintiff is a public-interest claim. The above rehabilitation plan includes the contents of exemption of the Defendants’ joint and several liability against the Plaintiff and exemption and reduction of the Defendants’ debts, which affect the Plaintiff’s rights as a public-interest creditor. Therefore, in order to realize the validity of the above rehabilitation plan, the above provisions of the rehabilitation plan must be subject to the Plaintiff’s consent. Nevertheless, there is no evidence to acknowledge that there was the consent of the Plaintiff regarding the above provisions of the rehabilitation plan. Thus, the above provisions of the rehabilitation plan are invalid for the Plaintiff. The Defendants still are jointly and severally

2) Determination as to the assertion regarding the remainder KRW 11,423,913

The defendant manager and the defendant self-employed car sales claim for the remainder of KRW 11,423,913, which is the price for the plaintiff's construction drawings and the services for the management ledger of buildings, can only be claimed against the defendant treatment industry development who received the services after the corporate division.

However, the Plaintiff has a claim for the service price in this case as consideration for the Defendant’s performance of all design services under the contract in this case. Of the service price claim in this case, the part of the working design service contract containing KRW 11,423,913, which includes the above remainder of 11,423,913, is a public-interest claim, and on the other hand, Defendant Treatment Industry Development newly established following the corporate division conducted in the rehabilitation procedure for the former Medical Service Price, and Defendant Il-il Automobile Co., Ltd. shall be jointly and severally liable for the service price obligation of this case, which is the company’s obligation before the division, pursuant to Article 530-9(1) of the Commercial Act. The rehabilitation plan provisions of the different contents are deemed to have no validity as to the part of the working design service contract among the service price of this case, which is a public-interest claim. Accordingly, even if the supplementation of the above construction work drawings and the supply of the books for the management ledger, as argued by the above Defendants, unlike the above recognition, it cannot avoid the above Defendants’ assertion.

4. Conclusion

Therefore, among the plaintiff's lawsuits of this case, 223,401,261 won and the above 198,059,400 won, 6% per annum from June 26, 2012 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment, shall be dismissed as unlawful. The plaintiff's remaining claims shall be accepted within the scope of the above recognition, and all other claims shall be dismissed as without merit. The judgment of the court of first instance shall be dismissed as it is partially unfair, and it shall be modified as the judgment of the court of first instance, including the claims extended in the trial. It is so decided as per Disposition.

【Attached Contract omitted】

Judges Kim Yong-dae (Presiding Judge)