The case holding that the custodian of the reorganization company after the merger cannot exercise the avoidance power under Article 78 (1) 4 of the Company Reorganization Act in accordance with the principle of good faith

The case holding that the manager of the reorganization company after the merger cannot exercise the avoidance power under Article 78 (1) 4 of the Company Reorganization Act in accordance with the principle of good faith, in case where a company which entered into a real estate security trust contract for its affiliated company has a special reason to merge with its affiliated company thereafter.

[1] Article 2 of the Civil Code, Article 78 (1) 4 of the Company Reorganization Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 200Na14488 delivered on September 2, 2001

Note Real Estate Trust Co., Ltd. (Law Firm Sejong, Attorneys Lee Ho-ro et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na72342 delivered on July 5, 2002

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the reorganization company New Co., Ltd.; and

The primary purport of the claim is that the defendant shall pay to New Co., Ltd., New Co., Ltd. (1) the amount of money calculated by applying the registration of the Gwangju District Court's net support to each real estate listed in the annexed Table 1, and the registration procedure for cancellation of transfer of ownership made on September 30, 1997 as well as the registration procedure for cancellation of transfer of ownership, (2) the amount of 88,000,000 won from October 1, 1997 to the delivery date of the copy of the complaint of this case, and the amount calculated by applying the rate of 25% per annum from the following day to the full payment date.

Preliminary purport of claim: The defendant will implement the procedure for registration for cancellation of ownership transfer registration, which was made on September 30, 1997 with respect to each real estate listed in Schedule 1. to New Co., Ltd., New Co., Ltd., and each ownership transfer registration, which was made on September 30, 1997.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by the parties, by taking account of the whole purport of testimony and oral argument of Kim Jong-soo, and there is no counter-proving evidence of 1 through 3, 4, 5-1 through 13, 6 through 8, 9-1 through 3, 10, 11, 13, and 15-1, 13, 15-2, each of the statements of 1, 15-1, 2, 15-1, and 15-2, and 3-1, respectively:

(a) Relation to New Zealand Group;

(1) Affiliated companies of the New Zealand Group;

Before the merger, Non-Party Reorganization Co., Ltd. (hereinafter referred to as the "New Co., Ltd.") was the main company of the so-called New Co., Ltd. (hereinafter referred to as the "New Co., Ltd.") that was established as 18 affiliates as of 197 as of December 197 as a company for the operation of department stores, etc., and the Non-Party Reorganization Companies, Inc. (hereinafter referred to as the "New Co., Ltd.") was established as an affiliate of the New Co., Ltd. (hereinafter referred to as the "New Co., Ltd.") for the purpose of housing and civil engineering construction projects within the New Co., Ltd. (hereinafter referred to as the "New Co., Ltd.") as an affiliate of the New Co., Ltd., Ltd., and the non-Party Reorganization and Development Co., Ltd. (hereinafter referred to as the "New Co., Ltd.") was also established as a department store of the New Co., Ltd. or for the purpose of selling Schlage in the department store.

(2) The bankruptcy and merger process of any affiliate affiliated company of the New Zealand;

On November 4, 1997, the above New Zealand, a company affiliated with the New Zealand Group, applied for the commencement of each of the composition procedures to the Seoul District Court immediately after being subject to the disposition of suspension of payment on November 4, 1997, but all of the above courts were dismissed on April 8, 1998, and thereafter, on July 9, 1998, each of the above courts applied for commencement of the company reorganization procedures to the above court on November 16, 1998, and the order of commencement of the company reorganization procedure was issued by the above court on December 3, 199, after obtaining the approval of the reorganization plan by the above court on December 3, 199, the time comprehensive construction and new development were absorption into New Zealand, and the plaintiff was appointed as the manager of the said time comprehensive construction and the reorganization company merged with the new town development on April 10, 199.

(b) Credit transactions for pairs of loans;

(1) The financial standing of the New Zealand Group

From the first half of 1997, New Co., Ltd. suffered from a sudden operational fund difficulties due to unreasonable expansion of business and the deepening of domestic economic depression. The liabilities for the first financial right have also been more than KRW 2.50 billion as of the end of 1996, and it has been more than KRW 3 if it includes funds raised in the second financial right, etc.

(2) The discount of bill under a bill transaction agreement with both forms of money.

Therefore, as the capital shortage has deepened, it was difficult to raise the operating fund in the existing first financial right. Since August 197, it concluded a bilateral financial company with the non-party bankrupt's joint financial company (which was declared bankrupt by the Incheon District Court on November 4, 1998; hereinafter referred to as the "balent money") and entered into a bill transaction agreement with the non-party bankrupt's joint financial company (which was declared bankrupt by the Incheon District Court on November 4, 1998) and made it available to raise the operating fund. The contents of the transaction were issued and delivered by the method of issuing a bill with both types of money and distributing it to the two types of money, and receiving the remaining amount after deducting a discounted amount from the face value of the bill. However, in fact, in order to settle the existing bill at intervals of one to two days, it was done in the form of issuing a new bill and paying the existing bill at discount. In relation to the transaction of the bill, it was performed only in the form of physical credit guarantee provided only to both parties.

(3) Demand for the offer of security for Twin-type New Coins

However, since September 18, 1997, when the obligation to pay the bills of New Zealand was continuously caused to approximately KRW 12 billion to KRW 13 billion under the above Promissory Notes trading agreement, there was a defect in the notice that the obligation under the existing Promissory Notes trading agreement would not be extended when it was demanded to guarantee the obligation under the existing Promissory Notes trading agreement, and that it would not be extended when it was not required to provide the obligation to New Zealand, and that the payment would not be extended due to the extension of the maturity of the bills. On the 20th of the same month, it was proposed that in order to prevent the chain of the entire affiliates of New Zealand Group, part of the real estate owned by the comprehensive construction of the era, which is an affiliate of the New Zealand Group, a real estate trust company, provide a security by giving the right to benefit first to the Defendant Company, which is a real estate trust company, and thereafter, the consultation on the real estate trust between the employees of New Zealand Group and the employees of the Defendant Company was made.

C. The comprehensive construction of times and the real estate security trust contract between the defendant company.

(1) Conclusion of a security trust contract

Therefore, with respect to each of the real estate listed in the annexed Table 1, which is owned by the comprehensive construction of the era on September 29, 1997 (hereinafter referred to as the "each of the real estate of this case"), the real estate security trust contract (hereinafter referred to as the "security trust contract of this case") was concluded between the time and the defendant company as follows.

.Entrusteder: the comprehensive construction of the times;

b)trustee: the Defendant Company;

(a) Debtors: New Zealand;

(a) Preferential beneficiary of the original trust: Twin-use balance;

(i)Maximum amount of preferential rights to benefit: 16 billion won;

(i)The trust period: from September 29, 1997 to September 29, 1998;

.The appraised value of immovable property: 16,559,614,000 won;

(2) Main terms of the security trust agreement

The main content of the instant security trust agreement is that, in order to secure the repayment of the present and future debts (for the foregoing security obligation, including the guarantee obligation for the third party of New Zealand as well as the direct loan to the new-use loan to the new-use loan), the contractor, transferred the ownership of each of the instant real estate owned by the trustor to the defendant company, the trustee, for the purpose of securing the real estate of this case, and if the new-use loan is unable to repay the above security obligation for the two-use loan, the defendant company realized through a public auction at the request of the two-use loan, the preferential beneficiary, and then pays the disposal amount to the two-use loan within the limit of 16 billion won, the upper court's preferential beneficiary interest.

(3) Transfer of ownership and delivery of the certificate of preferential right.

On September 30, 1997 following the date of the conclusion of the instant collateral trust contract, the construction completed the registration of ownership transfer as described in the purport of the claim with respect to each of the instant real estate by reason of trust, and paid KRW 88,000,000 to the Defendant Company as trust fees. On the same day, New Zealand was issued with a registered beneficiary certificate (Evidence A(Evidence A) representing the priority of the two-use loans from the Defendant Company and delivered it to the two-use loans as the priority interest holder. On the other hand, the time comprehensive construction did not receive any consideration or any consideration from the Defendant Company in relation to the conclusion of the instant collateral trust contract.

(4) Extension of the term of the security trust contract

Since then, the trust period under the instant security trust agreement was extended from September 30, 1998 to October 31, 2001.

(d) Details of secured debts in respect of pair of paper payments of New Zealand;

(a)guarantee of each Promissory Notes issued by New Zealand Development;

On September 12, 1997, New Zealand guaranteed a bill to the two promissory notes of KRW 5,00,000 at each face value of 5,00,000,000 issued by New Transportation Development (the bill number number of KRW 1157972, 1157973, 11579673, each of the payment dates, September 12, 1997, each of the payment dates of KRW 12,197, 12, 1997; hereinafter referred to as "the bill of this case"), and the two forms of payments were paid by the Korean Commercial Bank (the name of the corporation is changed to Korea Light Bank; hereinafter referred to as "Commercial Bank") after the discount of each of the above bills for New Transportation Development. However, the Bank, as the final holder of the commercial bank, refused payment on December 15, 1997.

(2) Guarantee of Promissory Notes in respect of Promissory Notes issued by New Zealand Planning;

In addition, New Zealand guaranteed a bill of promissory note in the face value of KRW 5,00,00,000 issued by New Zealand (the bill number of KRW 162015 is 162,00,000,000,000,000,000 (the bill number of this case is 162015, the payee corporation, Dongsung Bank, the date of issue, October 11, 1997, and January 12, 1998; hereinafter referred to as "the bill of this case"). New Zealand guaranteed a bill of this case by Dongsung Bank with the guarantee of both kinds of money, but the said bill of this case was discounted from Dongsung Bank with the guarantee of New Zealand and the two types of money, which is the last holder of the date of payment, and the said bill of this case was rejected and the two forms of money was recovered and held as the last holder of the bill.

(e) Details of the progress of reorganization proceedings on each bill guaranteed by the New Zealand;

(1) each Promissory note of the issue of new transport development;

Within the report period, commercial banks reported the total sum of KRW 6,143,356,162 (interest 1,143,356,162 + interest 1,143,356,162 + interest 1,146,712,324 (=6,143,356,162 x 2) of the total sum of principal and interest 6,143,356,712,324 (interest 1,143,356,162 + 162) as reorganization claim. Accordingly, the joint management person at the time of the development of New Zealand was fully decided on January 13, 199, and the trustee in bankruptcy or the defendant company did not make a joint report on the reorganization claim or the bill guarantor at the time of the comprehensive construction or the bill, the truster.

(2) Promissory notes issued for the issuance of New Transportation Planning

(3) On December 15, 1997, the trustee in bankruptcy filed an objection against the bill of this case as a reorganization claim on December 15, 1997. (5,00,000,000,000 + principal + interest 1,066,849,313 + interest 1,000,000 + interest 1,0666,849,313) and the right to preferential benefit under the security trust agreement for this case as a security. However, at the time of the payment date of the new bill of this case, the trustee in bankruptcy filed an objection against the bill of this case as a reorganization claim against the bill of this case on January 13, 1999. Both parties did not file a lawsuit for confirmation of the security interest within one month, and both parties did not file a lawsuit for confirmation of the reorganization claim against the bill of this case or the bill of this case with the truster or the issuer of the new bill of this case.

2. Main claim;

A. Plaintiff’s ground of claim and Defendant Company’s main defense

The plaintiff, around the other hand, constitutes an act stipulated in Article 78 (1) 1 or 3 or 4 of the Company Reorganization Act, which was concluded by the time comprehensive construction between the defendant company and the defendant company, and denies it from the plaintiff's qualification as the manager of New Zealand after the consolidation of the era comprehensive construction, and seek to implement the procedure for cancellation of registration of each transfer of ownership and return of trust fees as to each transfer of ownership stated in the primary purport of each of the real estate of this case against the defendant company as the effect of denial.

As to this, the defendant company cannot change or supplement the ground for exercising the right to set aside under the Company Reorganization Act as a type of the right to set aside. In addition to the exercise of the right to set aside under Article 78 (1) 1 of the Company Reorganization Act at the time when the plaintiff filed the lawsuit in this case, the plaintiff exercised the right to set aside under Article 78 (1) 3 and 4 of the Company Reorganization Act after the lapse of the extinctive prescription period for the right to set aside under Article 92 of the Company Reorganization Act, since the plaintiff exercised the right to set aside under Article 78 (1) 3 and 4 of the Company Reorganization Act after two years from the date when the decision was made to commence reorganization proceedings for the whole construction of the era, each of the above right to set aside was made after the lapse of the extinctive prescription period for the right to set aside under Article 92 of the Company Reorganization Act, the subject matter of the lawsuit for set aside is not the right to set aside itself, but the claim for denial can be changed or supplemented by the date of the argument.

Therefore, the following should be examined as to whether the instant security trust contract is subject to the avoidance under Article 78(1)1, 3, and 4 of the Company Reorganization Act.

(b) Whether it falls under malicious act (Article 78 (1) 1 of the Company Reorganization Act);

(1) The plaintiff and defendant company's assertion

The plaintiff asserts that the security trust contract of this case is a fraudulent act which absolutely reduces the creditors' property of liability against the comprehensive construction of the times or an act detrimental to the fairness with other creditors, and that it is a malicious act committed while being aware of the fact that it would prejudice reorganization creditors or security holders (hereinafter referred to as "resolution creditors, etc.") in the era's comprehensive construction, and thus, it is subject to avoidance under Article 78 (1) 1 of the Company Reorganization Act. The defendant company at the time of the security trust contract of this case, the defendant company did not know the fact that it would prejudice the reorganization creditors, etc. of the era's comprehensive construction at the time of the security trust contract of this case, so it does not constitute the proviso of the same subparagraph, and therefore, it does not require further review whether the requirements for denial are established or not.

(2) Facts of recognition

Therefore, as alleged by the Defendant Company, as to whether the Defendant Company was unaware of the fact that it would harm reorganization creditors, etc. in the era of comprehensive construction as a result of the instant security trust contract, the following facts can be acknowledged in full view of the purport of the pleadings in relation to each testimony of witnesses, witnesses, and Kim Acquisition.

(A) At the time of the conclusion of the instant security trust contract, the Defendant Company did not recommend the conclusion of the instant security trust contract to New Zealand or the time comprehensive construction, but was aware of the usefulness of the relevant security trust contract as it used the security trust contract in transactions with financial institutions as it was based on the relationship with which the security trust contract in the past is likely to reduce costs and ensure the security value compared to the collateral security contract in the relationship with the financial institutions. However, as the instant security trust contract was demanded from the double-use balance of the instant security trust contract, the new group requested the Defendant Company to conclude the security trust contract first.

(B) The security trust belongs to the type of trust business for management and disposal among the businesses handled by the Defendant Company. The main business of the Defendant Company, the trustee, is the acquisition of secured real estate for the loan claims of the first beneficiary and the disposal act in the event of nonperformance of obligations. Thus, the Defendant Company generally conducts an investigation into the realization of secured real estate, the adequacy of secured real estate, and the defects in public record in dealing with the secured trust business, and does not conduct any particular investigation into the truster’s financial standing

(C) At the time of the conclusion of the instant collateral trust contract, Defendant Company did not specifically investigate the financial status or debt amount of the time comprehensive construction, New Zealand, or New Zealand Group’s subsidiaries. From May 197 to May 197, Defendant Company did not have any detailed information about the current comprehensive construction, the current company’s financial status, and the debt amount. However, at the time of the conclusion of the instant collateral trust contract, Defendant Company did not have any comments about the current comprehensive construction, the current company’s financial status, and the debt amount. In the course of the conclusion of the said contract, there was no comments about the current comprehensive construction or the employees of the New Zealand Group on the financial status or debt amount.

(3) Determination

In full view of the above facts and the content of the business of collateral trust and the practice of the real estate trust company, the defendant company did not have a specific perception as to whether the comprehensive construction was in a state of exceeding the obligation at the time of entering into the instant collateral trust contract, and accordingly, there was no specific perception as to whether the conclusion of the instant collateral trust contract would prejudice the creditors of the times comprehensive construction (i.e., whether the act was in bad faith). Therefore, the plaintiff's assertion is without merit without examining whether the remainder of the requirements

(c) Whether it falls under any dangerous act (Article 78 (1) 3 of the Company Reorganization Act);

(1) The plaintiff and defendant company's assertion

In addition, the security trust contract of this case was concluded in order to secure obligations under the bill security transaction agreement between 13 billion won and 13 billion won which New Zealand had already borne by the two kinds of gold, and it was concluded in order that the comprehensive construction of this case was to provide security to the two-use gold who is a specific creditor. The date of conclusion of the security trust contract of this case was September 29, 1997. The date of the first default on payment to New Group was October 21, 1997. Thus, the security trust contract of this case is an act related to the provision of security within 30 days before the date of suspension of payment or bankruptcy, commencement of composition procedure or reorganization procedure ("payment suspension, etc."), and thus, the company asserted that it did not fall under the so-called act of setting aside within the period of 30 days prior to the amendment of the former Company Reorganization Act (amended by Act No. 5130, Dec. 31, 199; Act No. 857, Feb. 6, 199).

(2) Facts of recognition

First of all, as alleged by the plaintiff, whether the execution of the security trust contract in this case was an act within 30 days prior to the "Suspension of Payment, etc.", as examined in the above 1-based facts, it is clear that the execution date of the security trust contract in this case was an act conducted on September 29, 1997 and then 35 days prior to the date of the conclusion of the security trust contract in this case, and according to the witness testimony, the fact that the plaintiff made a decision on October 21, 1997 by the company subject to the deferment of the default agreement based on the deferment of Payment Agreement of the Federation of Banks can be acknowledged and there is no counter-proof.

(3) Determination

"Suspension of payment" under Article 78 (1) 3 of the former Company Reorganization Act refers to the case where the debtor explicitly and explicitly expresses that the debtor is unable to repay his/her obligations due to lack of self-sufficiency, and the lack of self-sufficiency refers to the case where the debtor does not have any assets for which he/she is able to repay his/her obligations, and the case where he/she has no credit rating to be paid with loans sufficient to postpone the repayment or to repay his/her obligations.

However, the so-called insolvency grace agreement is concluded between financial institutions, such as banks, merchant banks, insurance companies, securities companies, etc. with the aim of preventing the largeization of non-performing loans and enhancing the soundness of financial assets by taking a joint account of creditor financial institutions early on April 21, 1997 in order to promote the normalization of insolvent enterprises and efficiently dispose of non-performing loans (the name of the formal agreement is "the agreement between financial institutions for the promotion of the normalization of insolvent enterprises and the efficient liquidation of non-performing loans") and between financial institutions which were implemented from April 21, 1997, and it is judged that the possibility of normalization is possible after assessing the possibility of normalization for enterprises with insolvency signs in the management crisis, it shall continue support as stipulated in the agreement, and if it is judged that it is impossible to normalize itself, it shall start legal management, bank management, third-party takeover or liquidation, etc. for the disposal of non-performing loans, and it shall temporarily suspend the exercise of claims and provide funds required for normal business activities by the financial institutions for the period of such evaluation.

Thus, it cannot be deemed as the date of the disposition of suspending payment on the ground that there was a decision of the company subject to the non-performance grace agreement under the non-performance grace agreement. Thus, the plaintiff's assertion is without merit without examining whether the remaining requirements of

(d) Whether it falls under the gratuitous act (Article 78 (1) 4 of the Company Reorganization Act);

(1) The plaintiff and defendant company's assertion

Finally, the plaintiff asserts that the security trust contract of this case is a gratuitous act that transferred the ownership of each of the real estate of this case to the defendant company without any consideration in order to secure the debt for the joint use of New Zealand, and it is an act that was done within 6 months prior to the suspension of payment. Thus, the defendant company asserts that the comprehensive construction of this case is an affiliated company of New Zealand and the company of this case is subject to the avoidance under Article 78 (1) 4 of the Company Reorganization Act. In light of the fact that the debtor's default, including the comprehensive construction of the era, led to the bankruptcy of the new Asia group as a whole, including the whole construction of the era, since the security trust contract of this case, as long as the new coaches actually made a loan of business funds, and the comprehensive construction of the new Asia and the age becomes unable to escape from the bankruptcy, it cannot be deemed that the security trust contract of this case constitutes an act without consideration, and even if it is a free domestic act, it is justifiable in view of the process of conclusion of the contract, and it cannot be seen that the comprehensive construction of new acquisition of real estate of this case.

(2) Whether a free act is recognized

(A) Facts of recognition

In full view of the facts found in the above 1. Basic facts, it can be recognized that the time comprehensive construction had transferred the ownership of each of the instant real estate to the Defendant Company for the purpose of securing obligations arising from the lending transaction of the two-way loans to New Zealand, and it can be recognized that the Defendant Company or New Coins, and the two-years did not receive any payment (e.g., the purchase price or the guarantee fee for land and buildings) from the Defendant Company or New Coins, and there is no counter-proof, and the date when the application was filed for the suspension of payment and the commencement of composition for the time comprehensive construction was made on November 4, 1997. The date when the collateral trust contract was concluded on September 29, 1997, which was 35 days before that date, and it is apparent that the act was conducted within six months from the suspension of payment, etc.

(b) the sales board;

The "free act" under Article 78 (1) 4 of the Company Reorganization Act refers to an act in which a company reduces its positive property without receiving any consideration, or increases its obligations, i.e., small property, and offering a guarantee or security on behalf of another person without any obligation by the reorganization company, even in cases where it directly causes an obligee's contribution to the principal obligor, it is reasonable to interpret that it constitutes a gratuitous act unless the reorganization company receives any economic benefits as a consideration. This legal principle does not change with the case where the principal obligor is a so-called affiliated company or family company. It is sufficient to determine it in relation to the reorganization company, and it does not consider whether it is free of charge from the obligee (see Supreme Court Decisions 97Da20755 delivered on March 26, 199; 9Da32875 delivered on May 8, 2001).

Therefore, even though the process of concluding the instant collateral trust contract as alleged by the Defendant Company was conducted to prevent the chain chain of companies affiliated with the New Zealand Group including new coaches and the comprehensive construction of the era due to the aggravation of the financial standing of the New Zealand Group, and the company can be temporarily exempted from default due to the occurrence of business financing, it is not a comprehensive construction in the era of New Zealand, but a continuous discount transaction (i.e., the discount of a new bill and the settlement of an existing bill) due to the conclusion of the instant collateral trust contract, and the comprehensive construction in the era is not a comprehensive construction in the era of New Zealand, and even if the company is an affiliate of the New Zealand Group, even if it is a separate company in the same manner as New Zealand group, so long as the comprehensive construction in the era was seriously exempted from the chain of de facto chain due to the conclusion of the instant collateral trust contract, it is merely an act of acquiring economic benefits from each of the instant real estate transfer and thus, it cannot be deemed as a compensation for the transfer of ownership in the era of the instant trust contract.

(3) Whether the avoidance power is exercised under the good faith principle

(A) Meanwhile, in principle, the standard point of time for determining gratuitous act should be the time of the act. In general, as to whether the exercise of the manager's right to set aside under the Company Reorganization Act can be deemed as contrary to the good faith, an act subject to setting aside is a company that filed an application for commencing corporate reorganization proceedings, and the exercise of the right to set aside is a company that has filed an application for commencing corporate reorganization proceedings, and the exercise of the right to set aside is a separate existence and the exercise of the right to set aside is the inherent authority of the manager to comply with the non-party company's act subject to set aside before the commencement of reorganization proceedings, and thus, it cannot be said that the manager exercises the right to set aside generally violates the good faith principle or constitutes abuse of rights (see Supreme Court Decision 96Da

(B) However, the company reorganization procedure is aimed at coordinating the interests of creditors, shareholders and other interested persons with respect to a corporation which faces bankruptcy due to financial difficulties but which is worth economic rehabilitation, and reorganization and reorganization of the business. As a part of the achievement of these objectives, the company reorganization procedure sets forth as the object of denial for the company's property after the commencement of free act as stipulated in Article 78 (1) 4 of the Company Reorganization Act as the object of restitution for the company's property and the company's profit-making power

However, according to the above 1. Basic facts, it is recognized that the construction of the era was absorptiond and merged into New Zealand as of December 3, 1999. Thus, as long as the plaintiff was able to obtain satisfaction of the claims from the creditors of the era comprehensive construction as of December 3, 199, the plaintiff not only came to concurrently hold the position of the manager of New Zealand, but also, after the merger, the overall succession of the rights and obligations of the era comprehensive construction when the corporate merger occurred. Thus, although the two companies were separate companies at the time of the merger, the two companies were deemed to be a separate company at the time of the merger, but the two companies were the same as a juristic person after the merger, and at the time of the plaintiff's exercise of the right to set aside as the lawsuit of this case, the rights, obligations and effects of the security trust contract of this case are already attributed to New Zealand after the merger. From the perspective of the creditors of the era comprehensive construction, it is also possible to obtain the payment of new bonds from the viewpoint of the construction contract of this case.

Therefore, as in this case, it would result in a merger between a company which has performed a gratuitous act after the company reorganization procedure and a company which has received the price or a profit therefrom, or automatically recover the corporate profit due to the special circumstances corresponding thereto, or after the merger, it would result in the same result as receiving the economic compensation for the gratuitous act. Even if a gratuitous act is in form at the time of the merger, allowing the manager of the company after the merger to exercise the right to set aside on the ground of gratuitous act. Thus, it would be reasonable to view that the custodian cannot exercise the right to set aside if there are special circumstances under the good faith principle to prevent the manager from exercising the right to set aside against the company after the merger, in exceptional cases where there is an exceptional circumstance under which the right to set aside under the Company Reorganization Act is recognized.

Therefore, even if the transfer of ownership by the time comprehensive construction based on the instant security trust agreement constitutes a gratuitous act, as long as the Plaintiff exercises the right to set aside as a custodian of New Zealand after the time comprehensive construction and the merger between new coaches, the right to set aside under Article 78 (1) 4 of the Company Reorganization Act cannot be exercised for the same reason as seen earlier. Accordingly, the Plaintiff’s assertion is without merit.

3. Preliminary claim.

A. The plaintiff's ground for claim

The plaintiff, preliminaryly, the right to preferential benefit based on the instant trust agreement is a kind of security right that functions as a security to secure the claim of the pair-type gold as the debtor under the instant trust agreement. Although the trustee in charge of the trust of the pair-type gold reported the above right to preferential benefit as a security, he/she did not file a lawsuit for confirmation of the security within one month after he/she received an objection from the joint manager in the claim inspection date on January 13, 1999, but did not file a lawsuit for confirmation of the security within one month after he/she did not report the completion of the reorganization plan for the comprehensive construction of the era or new town development, and thus, the right to preferential benefit, which is a security for the two-type loan, has become extinct as the waiver of the right to preferential benefit. Thus, since the trust of each of the instant real estate becomes impossible to achieve the purpose of trust, the trust of each of the instant real estate shall be deemed to have been terminated pursuant to Article 55 of the former Trust Act, claiming that each of the instant real estate transfer registration should be reverted to the plaintiff.

(b) Markets:

However, a trust under the Trust Act refers to the legal relationship that a truster transfers a specific property right to a trustee to a trustee or takes other dispositions, and has a trustee manage and dispose of such property right for the benefit of a beneficiary or for a specific purpose. Thus, if a truster concludes a trust agreement with a trustee to manage and dispose of real estate for the security of another person's obligation under a bill transaction agreement, and grants a creditor preferential right to the trust principal, and if a trustee has completed a registration of ownership transfer based on a trust in the future, the truster's trust shall be deemed to have reverted to the trustee. If a company reorganization procedure for a truster has commenced for a truster, the right to benefit from the trust real estate held by a creditor shall be deemed to have been vested in the trustee. If the reorganization plan is not affected by the "security provided by a person other than the reorganization company for a reorganization creditor or security holder" under Article 240 (2) of the Act, even if the creditor did not report within the reorganization claim reporting period, the right to be forfeited shall be limited to the reorganization claim or security held by the truster, and the right to the trust property held in the trust (see.).

Therefore, according to the plaintiff's assertion, the two-use loans reported the preferential right to benefit under the trust agreement of this case as a security, and even if the two-use loans did not file a lawsuit for the confirmation of the security within one month, the preferential right to benefit to the defendant company of the two-use loans shall not be affected by the above company reorganization procedure. Thus, the plaintiff's assertion based on the premise that the preferential right to benefit to the defendant company of the two-use loans has been forfeited due to the non-performance of the reorganization procedure, is without merit.

4. Conclusion

Therefore, all of the plaintiff's main and conjunctive claims of this case are dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-soo (Presiding Judge)