In case where a joint guarantor of the liquidation company pays part of the claim to the creditor, whether he/she may exercise his/her right as a reorganization creditor together with the creditor (negative)

In the event that several persons are liable for performance in full, the company reorganization procedure is commenced for one person, and when a creditor exercises his right as a reorganization creditor with respect to the total amount of the claim, the person holding the future right to indemnity against the reorganization company cannot exercise his right as a reorganization creditor, but in the case where the future claimant has made a payment for the total amount of the claim as soon as possible, the creditor may exercise his right as a reorganization creditor by changing the name of report under Article 128 of the Company Reorganization Act in case where he has made a payment for the whole amount of the claim, but only the creditor may exercise his right as a reorganization creditor with respect to the total amount of the claim he has at the time of the commencement of the reorganization procedure, and it shall not be said that the person who has made a subrogation for

Articles 102, 110, and 128 of the Company Reorganization Act

Southyang Metal Co., Ltd. (Attorney Kim Jae-jin, Counsel for the defendant-appellant)

Seoul High Court Decision 200Na11448 decided May 1, 200

Seoul High Court Decision 2000Na50802 delivered on March 20, 2001

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

1. Summary of the reasoning of the judgment below

According to the reasoning of the judgment below, the court below judged as follows. The plaintiff's new non-party corporation on May 27, 1997 and 48 billion won of bonds issued on May 13, 1997 and guaranteed the payment of 3.3 billion won of the principal and interest of non-party 1 corporation (hereinafter referred to as "non-party 1 corporation") on behalf of the plaintiff for the above bonds, and decided that the new company's new company company's corporate reorganization decision was ordered as of February 3, 200 and the defendant was appointed as administrator, and the plaintiff's new company's non-party 2 corporation's claim for reorganization claim was rejected as of February 22, 200, the non-party 1 corporation's claim for indemnity against non-party 20 billion won was non-party 1 corporation's claim for reorganization claim as of February 24, 200, the plaintiff's claim for indemnity against non-party 200 billion won of the amount of indemnity claim as of February 3, 2000.7 billion won of subrogation claim.

2. Judgment on the grounds of appeal

In the event that several persons are liable for performance in full, reorganization procedures are commenced for one person, and when a creditor exercises his right as a reorganization creditor with respect to the total amount of the claim, a person holding future right to indemnity against the reorganization company cannot exercise his right as a reorganization creditor. However, in the case where a person holding future right to indemnity has made a payment in full as of the date of making a return under Article 128 of the Company Reorganization Act, in case where a person holding future right to indemnity has made a payment in full of the claim, he may exercise his right on behalf of a creditor by changing the name of report under Article 128 of the Company Reorganization Act. However, if a portion of the claim has been subrogated, only the creditor may exercise his right as a reorganization creditor with respect to the total amount of the claim he

Even though the court below held that the plaintiff's right to indemnity against the reorganization company by discharging joint and several liability obligations, it cannot be recognized as a reorganization claim unless the ground for the claim occurred prior to the commencement of the company reorganization procedure, and the part of the court below's decision as if the plaintiff could not exercise the creditor's right by subrogation even if the plaintiff pays the total amount

However, in the case of this case, the amount of the plaintiff's subrogation for the non-party 1's non-party 1's non-party 1's 2.34 billion won is less than 2.34 billion won, and therefore, unless the non-party 1's 1's 1's 1's 1's 2,901,778,657 was reported by the non-party 1's 1's 1's 1's 2.3 billion won, the non-party 1's 2,900 won cannot be satisfied with the total amount of the claim, the non-party 1's 1's 2,900 won can only exercise his right as a reorganization creditor with respect to the total amount of the claim held by the non-party 1's 2,90

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)