[1] The starting point of the period under Article 80 (1) of the Company Reorganization Act (=the day on which the act of cause takes effect)

[2] Purport of Article 80 of the Company Reorganization Act and whether an act satisfying the requirements for setting up a change in rights is subject to avoidance pursuant to Article 78 of the same Act (negative)

[3] The scope of the "act of the company" subject to the avoidance under Article 78 (1) of the Company Reorganization Act, and whether the act of the creditor or the third party may be subject to the avoidance (affirmative with qualification)

[1] Article 80 (1) of the Company Reorganization Act provides, "In case where an act necessary to oppose a third party by the creation, transfer or modification of a right after an application for the suspension of payment, bankruptcy, commencement of composition proceedings, or commencement of reorganization proceedings has been made, such act may be denied if it is done in bad faith after fifteen days have passed from the date of the creation, transfer or modification of a right," and the period of fifteen days above, which must be satisfied, shall be calculated from the date of the occurrence of the act which causes the change of right, not from the date of the act which causes the change of right,

[2] The purport of Article 80 of the Company Reorganization Act, which provides the requirements for setting up against the company and the requirements for effective effect itself, is that the act meeting the requirements for setting up against the company and the requirements for effective effect should also be set aside under the general provisions of Article 78 of the Company Reorganization Act in its original purpose, but where it is impossible to deny the act which is the cause of the alteration of a right, it shall be interpreted that the act of setting up against the company and satisfies the requirements for setting up against the company and satisfies the requirements for setting up against the company and allowing the company to set aside the requirements specifically only when it satisfies the strict requirements under Article 80 of the Company Reorganization Act while achieving the purpose of the company's intent. Thus, the act of setting up against the alteration of a right can only be set aside if it satisfies the strict requirements

[3] According to the provisions of Article 78 (1) of the Company Reorganization Act, the object of avoidance is, in principle, the act of the company prior to its reorganization. However, even if there was no company's act, in special circumstances such as the collusion with the company prior to its reorganization, in a case where the creditor or a third party's act can be deemed to be identical to the company's act, such act may be exceptionally an object

[1] Article 80 (1) of the Company Reorganization Act / [2] Articles 78 and 80 of the Company Reorganization Act / [3] Article 78 (1) of the Company Reorganization Act

[3] Supreme Court Decision 99Da73159 delivered on July 9, 2002 (Gong2002Ha, 1899) Supreme Court Decision 2001Da46761 Delivered on July 9, 2002 (Gong2002Ha, 1910)

The administrator of Jindo-gu Co., Ltd. (Law Firm Global Law Firm, Attorneys Lee Ma-sung et al., Counsel for the plaintiff-appellant)

Dongyang Integrated Financial Securities Co., Ltd. (Law Firm Namsan, Attorneys Ha-jin, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na32747 delivered on July 24, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The court below acknowledged the facts based on the employment evidence, and determined that the agreement of this case is an agreement between Jindo-do Co., Ltd. (hereinafter referred to as the "Jindo") and the defendant to secure the obligation to return loans to the defendant of Jindo-do, and the defendant is an agreement of so-called "transfer of security for collective claims" of the so-called "transfer of security for collective claims of Jindo-do," and the defendant shall be deemed to have obtained the right to select the sales claims to be transferred in accordance with the above agreement and to obtain the right to complete the reservation to establish the transfer of claims through the completion of the promise for payment in substitutes, and to notify the third debtor of the transfer of the transfer of claims to Jindo-do instead. The above fact-finding or decision of the court below is just in light of the records, and there is no error of law

2. Article 80(1) of the Company Reorganization Act provides, “In case where an act necessary to oppose a third party by means of the creation, transfer or modification of a right after an application has been made for the suspension of payment, bankruptcy, commencement of composition proceedings or commencement of reorganization proceedings, if such act is done in bad faith after fifteen days have passed from the date of the creation, transfer or modification of a right, it may be denied.” Thus, the period of fifteen days above, which must satisfy the requirements for setting up, shall not be the date on which the act of change of right took place, but shall be calculated from the date on which the act

In the same purport, the court below is just in holding that the right at the time of the promise for payment in kind cannot be deemed to have been transferred in the case of the promise for payment in kind, and that the right at the time of the promise completion shall be deemed to have been transferred on May 16, 201, which is the time of the above promise completion, so long as the defendant acting in Jindo-do on behalf of the obligor within 15 days from the date of the above promise and notified the obligor of the assignment of the claim as stated in the attached list 1 of the judgment below, the right to set aside under the above Article shall not be acknowledged

3. The purport of Article 80 of the Company Reorganization Act, which stipulates the requirements for setting up against the company and the requirements for effective effect itself, is that the act meeting the requirements for setting up against the company should also be set aside under the general provisions of Article 78 of the Company Reorganization Act, which is originally an act of setting up against the company, but where it is impossible to deny the act of setting up the requirements for setting up against the company and establishing the requirements for setting up against the company, it is interpreted that the act of setting up against the company can be set aside only if it satisfies the requirements for setting up against the company and satisfies the strict requirements stipulated in Article 80 of the same Act while achieving the purpose of the company's intent. Thus, the act of setting up against the company's transfer of rights can only be set aside if it satisfies the strict requirements stipulated in Article

On behalf of Jindo on May 16, 2001, the court below decided that the act of the defendant's notification to the debtor of each claim listed in the annexed Table 1 of the judgment of the court below on behalf of Jindo does not constitute an opposing power for the transfer of claims after notifying the debtor of the transfer of claims effective by the exercise of the right to complete the reservation. Thus, the act itself is not subject to avoidance under Article 78 of the Company Reorganization Act, separate from the agreement of this case, which is a cause act, and rejected the plaintiff's assertion against it. Such decision of the court below is just in accordance with the above legal principles and there is no error

4. According to the provisions of each subparagraph of Article 78(1) of the Company Reorganization Act, the subject of avoidance is, in principle, the act of the company prior to its reorganization. However, even if there was no company's act, in special circumstances such as the collusion with the company prior to its reorganization, in a case where the creditor or a third party's act can be deemed as identical to the company's act, such act of the creditor or the third party may be subject to avoidance (see Supreme Court Decision 2001Da46761 delivered on July 9, 20

Therefore, the court below's decision is just in rejecting the plaintiff's assertion that the defendant's act on May 16, 2001 was an act of exercising the right to choose the sales claim and the right to complete the reservation under the agreement of this case, and it is only the defendant's act of exercising the right to set aside, and it does not constitute the plaintiff's act of transferring the right to set aside, and there is no evidence to acknowledge special circumstances that can be seen as the defendant's act of exercising the right to set up the right to set up the reservation, such as the defendant's act of exercising the right to set up the reservation in collusion with the Jindo company, which is the company prior to the reorganization, and the defendant's act constitutes the object of setting aside under Article 78 (1) of the Company Reorganization Act, and there is no error of misunderstanding the legal principles or misunderstanding the legal principles as otherwise alleged in the ground of appeal.

5. The court below held that, in the case of so-called collective security transfer for security, the agreement cannot be deemed null and void as it violates Articles 607 and 608 of the Civil Act because it is determined that all of the above claims are claims arising from future changes in the amount of claims stated in the specification of claims, and it is possible for an obligor to additionally submit the specification of claims and thus, it cannot be confirmed at the time of the promise, and it is specified only when the obligee issues a notice of the assignment of claims. Therefore, it cannot be confirmed whether the value of the claim to be transferred or acquired in the future exceeds the aggregate of the borrowed amount and the interest, since the agreement exceeds the total amount of claims for the purpose of transfer, it cannot be deemed null and void as it is in violation of Articles 607 and 608 of the Civil Act, since it does not affect the conclusion of the judgment of the court below and there is no error in the misapprehension of legal principles as to misunderstanding of facts due to violation of the rules of evidence or incomplete deliberation, or as to Article 607 and Article 608 of the Civil Act.

6. The court below rejected the plaintiff's assertion that the agreement in this case itself has a ground for denial under Article 78 (1) 1 of the Company Reorganization Act, because Jindo-do, which had already been in excess of its obligation, reduced the liability property as joint collateral for the bankruptcy creditors and caused unfair treatment among the bankruptcy creditors. This decision of the court below is justified in light of the records, and it is not erroneous in the misapprehension of facts due to violation of the rules of evidence or incomplete deliberation, as alleged in the grounds for appeal.

7. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the losing plaintiff. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)