Whether provisional seizure, etc. which has lost its effect pursuant to Article 62 of the former Composition Act shall be returned in cases where a decision of revocation of composition has become final and conclusive pursuant to Article 68 (2) of the same Act (negative)

Pursuant to Articles 40(2) and 62 of the former Composition Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), where compulsory execution based on composition credit commenced prior to the decision of commencement of composition and provisional seizure and provisional disposition are not completed until the time of the decision of commencement of composition is completed, the continuation of the procedure is prohibited until composition procedures are completed, and the procedure is terminated as a matter of law retroactively due to the final decision of approval of composition, and the provisional seizure, etc. invalidated by the final decision of approval of composition is not restored even if the decision of revocation of composition becomes final and conclusive pursuant to Article 68(2) of the same Act.

Articles 40 (2) (see current Article 58 (2) 2 of the Debtor Rehabilitation and Bankruptcy Act), 62 (see current Article 256 (1) of the Debtor Rehabilitation and Bankruptcy Act), and 68 (2) (see current Article 256 (2) of the Debtor Rehabilitation and Bankruptcy Act) of the former Composition Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005)

Plaintiff (Attorney Lee Han-woo et al., Counsel for plaintiff-appellant)

Defendant (Appointed Party)

Gwangju High Court Decision 2004Na2402 decided July 27, 2005

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

We examine the grounds of appeal.

1. As to the appeal against the designated parties except for the designated parties 22

A. As to the second ground for appeal

In a lawsuit of demurrer against distribution, the plaintiff does not assert or prove the facts constituting the grounds for objection against distribution. Thus, the creditor who filed an objection against distribution by asserting that the other party's claim is disguised shall bear the burden of proof (see Supreme Court Decision 97Da32178, Nov. 14, 1997).

Based on these legal principles, the court below rejected the Plaintiff’s assertion that the medical corporation’s ○○ Medical Foundation (hereinafter “○○ Medical Foundation”) transferred part of medical expenses claims held by the ○○ Medical Foundation against the National Health Insurance Corporation (hereinafter “the Korea Health Insurance Corporation”) on the grounds stated in its reasoning as follows: (a) it was based on false claims based on which part of the medical expenses claims held by the ○○ Medical Foundation to the designated parties, including the Defendant (appointed parties); (b) 1, 2, 3, 4, 5, 6, 7, 6, 7, 8, 6, 9, 9, 10, 10, 11, 12, 12, and 12 of the designated parties (hereinafter “the Korea Health Insurance Corporation”) were invalid on the ground that it constitutes false claims for which it constitutes a false declaration of intention of conspiracy

The judgment of the court below is not erroneous in finding facts due to violation of the rules of evidence or incomplete deliberation or in violation of the principle of pleading, which affected the conclusion of the judgment. The ground of appeal pointing this out cannot be accepted.

B. Ground of appeal No. 3

The notification of the assignment of claims is a notification of the fact that a specific claim has been transferred to a specific transferee. It is sufficient that the assigned claim is sufficient to identify the identity, and that the assignee is sufficient if it is specified by name, etc.

In light of the records, the ○○ Medical Foundation transferred medical expenses for the portion of March 28, 2002 to the Selection Construction, 14 of the Selection, the Doyang Pharmaceutical Co., Ltd., the Kuyang Pharmaceutical Co., Ltd., the Jinyang Pharmaceutical Co., Ltd., Jinyang Pharmaceutical Co., Ltd., the 2002 medical expenses for the medical expenses for the portion of December 2001, together with the medical expenses for the medical expenses for the 2002 Medical Care Corporation, and the medical expenses for the portion of the 2001 medical expenses for the ○ Medical Foundation. The notification of the transfer of the fixed date reached the ○○ Medical Foundation on April 2, 2002, and the ○○ Medical Foundation transferred the medical expenses for the portion of March 10, 200, to the ○ Medical Foundation Co., Ltd., Ltd., the ○○ Medical Foundation transferred medical expenses for the 21st, etc., and the 2002 notified of the transfer of the credit.

The court below did not err in finding facts due to violation of the rules of evidence or incomplete deliberation, or in misunderstanding the legal principles as to the assignment of claims, which affected the conclusion of the judgment. This part of the grounds of appeal cannot be accepted.

C. Regarding ground of appeal No. 1

Article 40 (2) of the former Composition Act (amended by Act No. 7428 of Mar. 31, 2005, Apr. 1, 2006, hereinafter "the Act") provides that "Compulsory execution, provisional seizure or provisional disposition against the debtor's property with respect to composition credit prior to the commencement of composition shall be suspended during the composition procedure." Article 62 of the Act provides that "if the approval of composition becomes final and conclusive, the compulsory execution, provisional seizure or provisional disposition suspended under Article 40 (2) shall lose its effect." Thus, the compulsory execution based on composition credit, provisional seizure or provisional disposition which was commenced prior to the commencement of composition is prohibited until the commencement of composition procedure is completed, and its procedure shall be terminated retroactively retroactively from the final and conclusive decision of approval of composition, and it is reasonable to view that provisional seizure, etc. which became void even if the decision of approval of composition becomes final and conclusive pursuant to Article 68 (2) of the Act is not restored.

According to the records, the plaintiff's monetary claim against the ○○ Medical Foundation on April 29, 1998 (the composition claim) was clearly attached in provisional attachment of KRW 360 million out of the medical expenses claim that ○○ Medical Foundation has against the ○○ Medical Foundation. ○○ Medical Foundation applied for commencement of composition around August 1998 and received the commencement decision of composition on December 28, 1998, and confirmed the commencement decision on January 15, 1999. The decision of revocation of composition on September 18, 2002 against the ○○ Medical Foundation was made and confirmed around that time. According to the above facts, the provisional attachment against the ○○ Medical Foundation was suspended by the commencement of composition decision against the ○○ Medical Foundation, but it was justified in the judgment of the court below that the provisional attachment of the ○○ Medical Foundation was invalidated at the same time as the above decision of revocation of the ○○ Medical Foundation's loan for consumption was invalidated at the same time as the above decision of revocation of the ○○ Medical Foundation's.

The judgment of the court below is not erroneous in finding facts due to violation of the rules of evidence or incomplete deliberation or by misapprehending the legal principles as to the reorganization contract, which affected the conclusion of the judgment. This part of the grounds of appeal is not acceptable.

2. As to the appeal against the Appointor 22

The court of final appeal may investigate and determine only to the extent that an appeal is filed based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the law. Therefore, the grounds of final appeal should be treated as failing to submit the grounds of final appeal unless the grounds of final appeal submitted by the appellant contain such specific and explicit reasons (see Supreme Court Decision 97Da55126, Mar. 27, 1998, etc.).

Even if examining the contents of the appellate brief submitted by the Plaintiff in the instant case, it cannot be said that there was a legitimate appellate brief, inasmuch as there was no specific and explicit statement of the lower judgment as to the claim against the selector 22, and there was no particular statement of the grounds for appeal in the petition of appeal.

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.

Justices Shin Hyun-chul (Presiding Justice)