Gold Life Insurance Co., Ltd. (Attorney Park Young-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 201Na1448 delivered on August 1, 2011

April 22, 2004

Seoul Central District Court Decision 2002Gahap323 Delivered on July 10, 2003

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

1. Purport of claim

The plaintiff shall confirm that he has a right to vote in the same amount as security of 4,334,982,993 won for interest in the reorganization company.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

In full view of the evidence Nos. 1 through 6, evidence Nos. 7-1, 2, 8-1 through 4, evidence Nos. 12-1, 2, 13-2, 14, evidence Nos. 15, evidence Nos. 15, evidence Nos. 4 through 7, evidence Nos. 11 through 18, evidence Nos. 11 through 18, evidence Nos. 11 through 6, evidence Nos. 7-1, 2, and 8-1 through 12-1, evidence Nos. 15, each of the following facts can be acknowledged, and there is no counter-proof.

A. From 199 to 199, Nonparty Bank Co., Ltd. entered into a contract to provide credit to the reorganization company in a manner of discounting the bill issued by the reorganization company (limited to the reorganization company). On March 14, 2001, at the face value of 5,00,000,000 won at the face value of the reorganization company and the due date of 13 June 13 of the same year. At the request of the reorganization company, upon the expiration of the due date, the bank deposited funds necessary for the settlement of the above debt into the current lending passbook of the reorganization company and presented the settlement of the bill for the settlement of the gold payment. At the same time, as set forth in paragraph (a) below, at the expiration of the old bill, the balance under (b) subtracting the amount received as set forth in paragraph (d) below from the due date of the new bill, and the new bill was extended over five (c) the due date of the new bill issued by the reorganization company.

본문내 포함된 표 순번 (가)발행일 (나)액면금 (다)만기일 (라)변제금 1 2001.6.13. 5,000,000,000 2001.9.6. ？ 2 2001.9.6. 4,500,000,000 2001.9.7. 500,000,000 3 2001.9.7. 4,400,000,000 2001.9.10. 100,000,000 4 2001.9.10. 4,400,000,000 2001.9.13. ？ 5 2001.9.13. 4,300,000,000 2001.9.17. 100,000,000

B. On September 6, 2001, the reorganization company: (a) disposed of part of its shares by the 5th day of the same month; (b) repaid 1,70,000,000 won with funds borrowed from Japanese banks as payment guarantee until October 16 of the same year; (c) issued 3,00,000 won with borrowed funds from Japanese banks (as above, the reorganization company has prepared a redemption plan for the remaining 4,70,000,000 won out of 5,000,000 won in its original principal; (d) issued 20,000,000,000,000 won in 10,000 won in 20,0000 won in 20,000 won in 20,000 won in 20,000 won in 30,000 won in 20,000 won in 20,000 won in 30,000,0000 won in 20.

C. On September 13, 2001, the Plaintiff received 4,300,000,000 won and interest thereon (hereinafter in this case’s bill bonds) from the bill discount with respect to the reorganization company as above, and on the 17th day of the same month following the due date of the bill transfer from the gold class, the Plaintiff paid 4,296,347,946 won to the gold class with the purchase price of bill bonds (the purchase price of new bill with interest thereon after deducting the discount) and then had the reorganization company pay the above amount in this case’s bill at 00,00,000 won, 40,000 won and 40,000 won and 940,000 won and 940,000 won and 10,000 won and 20,000 won and 40,000 won and 40,000 won and 94,000 won and 94,00.

D. On September 20, 2001, the reorganization company failed to pay other bills issued by it due to the due date of maturity, and the bank transaction was suspended following September 2001. On October 12, 2001, the reorganization company filed an application for the commencement of reorganization proceedings with the Seoul District Court on the 24th of the same month. The order for commencement of reorganization proceedings was issued on October 12, 2001 by the same court, and on March 27, 2003, the liquidation company was appointed as a custodian for the reorganization company and the defendant was appointed as a new

E. During the reporting period of the instant security security, the Plaintiff filed a suit against the Plaintiff for the total amount of KRW 4,334,982,93 (50,088,493-15,500) from September 25, 2001 to October 11, 2001, at KRW 50,068,493, an agreed interest rate of KRW 25% per annum from September 25, 2001, less than KRW 30,068,493, less than KRW 15,085,50,00, which was appropriated for repayment by selling 30,171 shares of Bosteex among the instant security, and the Plaintiff filed a suit against the instant security and security interest within 34,982,982,93 (4,300,000,000 +394,982,93,93).

2. Judgment on the finalization of securities

A. According to the above facts, the plaintiff acquired a mortgagee's status as the security holder of the instant security, which is the property of the reorganization company, by acquiring bonds or stock certificates, etc. (the instant security is deemed to have been transferred in whole by means of bearer bonds or stock certificates, etc.) for the purpose of securing the claim for the instant bill, which occurred before the commencement of reorganization proceedings for the reorganization company. (It is reasonable to view that the plaintiff does not acquire the instant security through gold payment, but is the beneficiary directly acquired from the reorganization company) The fact that the instant bill bond does not exceed the value of the instant security does not conflict between the parties, and therefore, the plaintiff acquired the instant bill bond for the instant amount secured as the instant security and satisfies the requirements for setting up against the third party prior to the commencement of reorganization proceedings, barring special circumstances, shall be deemed to have voting rights in the liquidation company as well as the above amount of 4,334,982,93 won.

B. The defendant's right to set aside (Article 78 (1) 3 of the Company Reorganization Act)

Accordingly, the defendant asserts that the reorganization company's act of offering collateral of this case is "any act concerning the provision of collateral within 60 days before the suspension of payment, which does not belong to the company's duty" under Article 78 (1) 3 of the Company Reorganization Act, and thus, the right to set aside is exercised.

On September 13, 2001, which the reorganization company offered the security of this case to the plaintiff as security, it is apparent that the period of payment suspension for the reorganization company on the 21st day of the same month, or on the 24th day of the same month when an application for commencement of reorganization proceedings was made. The offering of the security of this case is to collect the loan without extending the maturity of the bill at the maturity of the bill issued by the reorganization company on September 6, 2001, with a view to repaying some loans in sequence and extending the maturity of the bill while presenting a specific repayment plan, and it is to extend the maturity of the bill by presenting a specific repayment plan to the reorganization company, and it is ultimately conducted in writing without any obligation of the reorganization company for the extension of maturity of the bill, so it is justifiable to exercise the right to set forth in the letter of security of this case as security of this case between the plaintiff and the reorganization company, even if there is no obligation of the reorganization security of this case to the plaintiff who purchased the bill of this case from the gold No.3 company.

C. The plaintiff's bona fide re-claim

The plaintiff asserted that the plaintiff could not be known to the plaintiff because the reorganization company, upon receiving a request for collection of the loan from the gold heading on September 6, 2001, provided that the reorganization company's financial structure was relatively superior to the financial structure prior to the bankruptcy, and the repayment of part of the loan to the gold heading, promised to dispose of the stocks held and repay the loan from the Japanese bank with the guarantee of the industrial bank, etc. <2> the reorganization company offered the security of this case to the plaintiff who purchased the commercial paper from the gold heading gold heading, the plaintiff actually deposited the settlement amount in the cash heading loan account of the reorganization company through the gold heading, and ③ the payment was made by the method of collecting the old bill or the extension of the maturity of the plaintiff's new bill was made by the method of delivering the new bill, and the plaintiff was unaware of the fact that the maturity of the new bill was extended several times prior to the purchase of the new bill.

In light of the following facts: (a) the Plaintiff had been issued a new bill with the maturity of Nos. 5, 6, 11-2, 15, and 11-7, and (b) the Plaintiff had been issued a new bill with a maturity of No. 100,000,000 issued a new bill with a maturity of No. 100,000,000 won for the purpose of this case’s loan transaction; (b) the Plaintiff had been issued a new bill with a maturity of No. 9,000,000,000 issued a new bill with a maturity of No. 100,000,000,000 issued a new bill with a maturity of No. 9,000,000,000 won for the purpose of this case’s new bill; (c) the Plaintiff had no longer been issued with a maturity of No. 1,6,0000,0000,000 won; (d) the Plaintiff attempted to repay loans to the Defendant.

D. The plaintiff's subsequent assertion as the subsequent purchaser

Although the Plaintiff asserted the same purport as the preceding paragraph on the premise that he himself is a subsequent purchaser who acquired the instant bill claim and the instant security from his gold gold, it is reasonable to view that the Plaintiff was aware of the fact that, in light of each of the above facts, the Plaintiff provided the instant security to gold gold with the knowledge that the reorganization company would impair equality with other reorganization creditors, etc. at the time of the transfer of the instant security, even though the Plaintiff acquired the instant security directly from the reorganization company, as seen earlier, and the Plaintiff’s assertion is nothing more than the subsequent purchaser who acquired the instant security from the gold gold.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed and it is so decided as per Disposition.

[Attachment List omitted]

Justices Kim Jin-jin (Presiding Justice)