Whether the holder of a bill solely reported as a reorganization creditor in the company reorganization procedure of the issuing company is against the good faith to exercise the right of recourse against the endorser after the period for filing the reorganization claim expires (negative)

Article 108 of the Company Reorganization Act provides that "where several persons are liable to perform in full, if reorganization proceedings commence with respect to all or some of them, a creditor may exercise his right as a reorganization creditor in each reorganization proceeding, with respect to the total amount of the claims held by him at the time of the commencement of the reorganization proceedings." In this context, "where several persons are liable to perform in full" includes cases where several persons are jointly liable pursuant to the Bills of Exchange and Promissory Notes Act. Meanwhile, Article 110 (1) of the same Act provides that "where several persons are liable to perform in full, if reorganization proceedings commence with respect to all or some of them, a person who holds a right to indemnity that may be exercised in the future against them may exercise his right as a reorganization creditor with respect to the total amount of the claim." Furthermore, Article 10 (2) of the same Act provides that "Where a creditor has exercised his right as a reorganization creditor with a total amount of a claim, he may not exercise his right as a holder of a promissory note after the payment of a bill has been made by subrogation to a creditor."

Articles 108 and 110 of the Company Reorganization Act, Article 2 of the Civil Act, Article 43 of the Bills of Exchange and Promissory Notes Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other

Southern Construction Co., Ltd. (Law Firm South Korea, Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul District Court Decision 96Na15427 delivered on November 27, 1997

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

The defendant's attorney's grounds of appeal are examined.

1. On the first ground for appeal

In light of the records, the plaintiffs are legitimate holders of the bill of this case, and the judgment of the court below that the plaintiff 2 reported the plaintiff 2 as the reorganization creditor in the company reorganization procedure for the non-party reorganization company to the non-party reorganization company (hereinafter the non-party company) is not a hindrance to the plaintiff 1's exercise of the right of recourse against the defendant. There is no violation of law such as the theory of lawsuit.

2. On the second ground for appeal

In the lawsuit of this case, although the plaintiff 2 acquired the same right as the final and conclusive judgment if he won the lawsuit of this case, the defendant lost the opportunity for the plaintiff 2 to report as the reorganization creditor after the period for filing a lawsuit expires, the lawsuit of this case which was filed after the period for filing a lawsuit of this case goes against the principle of good faith and the plaintiff 2 cannot be held liable for the lawsuit against the defendant. However, in order to prevent such improper result, it is only the defendant's assertion that the defendant only takes place in the court of final appeal, and Article 108 of the Company Reorganization Act provides that "if several persons are liable for the performance in full, the creditor may exercise his right as the reorganization creditor in each reorganization procedure concerning the total amount of the claim which he holds at the time of the commencement of the reorganization procedure of this case." However, the defendant's assertion that "where several persons are liable for the performance in full, it cannot be viewed that the plaintiff 2 is liable for the total amount of the claim or the right to indemnity of this case."

3. On the third ground for appeal

According to the reasoning of the judgment below, the court below decided on October 5, 192, 192 that the defendant received a subcontract from the non-party company's non-party company's non-party company's construction of 23 block 23 block 1 unit, Changwon-si, and the non-party 1 was in charge of accounting and general management at the construction site as the site general manager of the defendant company at the time, but the non-party 2 was in charge of accounting and general management of the construction site at the time of the non-party company's construction site at the time of the subcontract, which was delivered with the non-party company's management division at the time of the non-party company's subcontract as wages and other personnel expenses, but violated the original promise to pay in cash. The non-party 2 refused to accept the above promissorysory note at the time of receiving a discount from the plaintiffs' company's purchase of the above promissory note, but the non-party 1's request for a discount to the non-party 1's name and endorsement was made under the defendant's name.

In light of the records, we affirm the above recognition and judgment of the court below as just, and there is no error of law by misunderstanding facts against the rules of evidence. The argument is without merit.

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

Justices Shin Sung-sung (Presiding Justice)