(영문) 대법원 2020.3.2.선고 2019다243420 판결

Of the lower judgment, the part concerning the claim for the purchase-price of KRW 1,49,300 on May 26, 2017 is reversed, and that part of the case is remanded to the Seoul Southern District Court.

The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Of the Plaintiff’s claims, whether the claim for the price of goods KRW 1,49,300 on May 26, 2017 constitutes a common benefit claim. Article 33 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) provides that the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis to rehabilitation procedures unless otherwise prescribed by the Debtor Rehabilitation Act, and Article 170 of the Civil Procedure Act provides that the period shall be calculated in accordance with the Civil Act. Meanwhile, the Debtor Rehabilitation Act provides that “The debtor’s claim for the price of goods provided as a continuous and normal business activity within 20 days prior to the commencement of rehabilitation procedures” as a common benefit claim (Article 179(1)8-2), and there is no special provision regarding the calculation of the period. Accordingly, the provision concerning the calculation of the period when calculating the period within 20 days prior to the commencement of rehabilitation procedures is applied mutatis mutandis. Thus, the first day of the commencement of rehabilitation procedures, which is the date of filing an application for the commencement of rehabilitation procedures pursuant to the main sentence of Article 157 of the Civil Act.

B. The lower court, among goods-price claims claimed by the Plaintiff, filed an application for commencing rehabilitation procedures, 2017.

6. A claim for the amount of KRW 2,013,00 supplied within 20 days retroactively from May 15, 201, is a priority claim, but a claim for the amount of KRW 1,49,300, which was supplied before the claim is deemed to constitute a rehabilitation claim on May 26, 2017, and thus, determined that the part seeking the payment of KRW 1,49,300 is unlawful on the grounds that there is no benefit in the protection of rights.

C. However, in light of the foregoing legal doctrine, the day from June 14, 2017, the day immediately preceding the date of the application for commencement of rehabilitation procedures by the Defendant, which falls under the 20th day from June 15, 2017, which was the day immediately preceding the date of the application for commencement of rehabilitation procedures by the Defendant, shall be May 2017.

26. The fact-finding is apparent. Accordingly, a claim for the purchase-price of KRW 1,49,300 filed by the Plaintiff on May 26, 2017 constitutes a priority claim under Article 179(1)8-2 of the Debtor Rehabilitation Act.

Nevertheless, the lower court determined that the Plaintiff’s claim for the purchase of goods amounting to KRW 1,49,300 on May 26, 2017 was a rehabilitation claim. In so doing, the lower court erred by calculating the period prescribed in Article 179(1)8-2 of the Debtor Rehabilitation Act and violating the Act, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

2. On May 22, 2017, among the Plaintiff’s claims, the part concerning the claim for the payment of goods amounting to KRW 464,200 is deemed ex officio as to the claim for the payment of goods amounting to KRW 464,20 on May 22, 2017, among the lawsuits in which interest in the claim for the payment of goods is brought.

Any rehabilitation creditor who intends to participate in rehabilitation procedures under the Debtor Rehabilitation Act shall file a report on a rehabilitation claim (Article 148(1) of the Debtor Rehabilitation Act); when an objection is raised against any reported rehabilitation claim, all of the objectors may file an application with the court for the final claim inspection judgment (Article 170(1) of the Debtor Rehabilitation Act); and any person who is dissatisfied with such judgment may file a lawsuit seeking objection to the final claim inspection judgment (Article 171(1) of the Debtor Rehabilitation Act). When any objection is not raised against the reported rehabilitation claim, the same shall be confirmed as the reported claim is (Article 166 subparag. 1 of the Debtor Rehabilitation Act); and when any confirmed rehabilitation claim is entered in the table of rehabilitation creditors, such entry is deemed as having the same effect as the final and conclusive judgment (Article 168 of the Debtor Rehabilitation Act); and thus, the lawsuit regarding any pending rehabilitation claim is inappropriate as there is no benefit of lawsuit (see Supreme Court Decision 2013Da17971, Jun. 26, 2014).

According to the records, the Plaintiff reported the claim for the purchase price of goods of KRW 464,20 on May 22, 2017 to the Defendant as a rehabilitation claim in the rehabilitation procedure for the Defendant, and the Defendant confirmed the content of the claim as stated in the table of rehabilitation creditors, following the Defendant’s acceptance of the claim as it is. Therefore, among the instant lawsuit, the part claiming the payment of the purchase price of KRW 464,200 on May 22, 2017, which was determined as stated in the table of rehabilitation creditors, became illegal as it became final and conclusive as stated in the list of rehabilitation creditors.

Unlike this, the reasoning of the lower judgment that the lawsuit seeking the payment of the rehabilitation claim of this case is inappropriate in that it did not exercise the right according to the rehabilitation procedure regarding the claim for the price of goods of KRW 464,200 on May 22, 2017, which is the rehabilitation claim, but rather, the lawsuit seeking the payment of the rehabilitation claim of this case is not an interest in the protection

3. Conclusion

Of the lower judgment, the part concerning the claim for the amount of goods KRW 1,49,300 on May 26, 2017 among the judgment below is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.