(영문) 대전고등법원 2020.6.11.선고 2019나15418 판결

For the Plaintiff KRW 224,690,180 and KRW 26,400,00 among them, the Defendant shall pay to the Plaintiff 6% per annum from January 1, 2019 to June 11, 2020, and 12% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The defendant will bear 90% of the total litigation costs, and the remainder, respectively.

4. The monetary payment portion in paragraph 1 of this Article may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance is revoked. The defendant shall revoke the judgment of the court of first instance. The defendant shall pay to the plaintiff 253,290,180 won, and from December 13, 2018 to the delivery date of a copy of the application for modification of the claim and the cause of the claim as of May 1, 2020, 6% per annum, and 12% per annum from the next day to the day of full payment (the plaintiff has reduced the purport of the claim as above in this court, and the purport of the appeal has been reduced to the extent that it has been reduced accordingly).

Reasons

1. Basic facts

A. The plaintiff runs the machinery manufacturing and parts processing business under the trade name of "D", and the corporation B (hereinafter "B") aims at manufacturing and installing industrial machinery, manufacturing, assembling and wholesale of machinery and parts, manufacturing and installing automation facilities, and all businesses ancillary to the above subparagraphs.

B. B entered into a contract for the supply of goods with the Plaintiff, and ordered to the Plaintiff the goods equivalent to KRW 55,00,000 (including additional duties; hereinafter the same shall apply) on September 15, 2018 (hereinafter referred to as "supply contract as of September 15, 2018"), and the government goods worth KRW 231,000,000 on September 20, 2018 (hereinafter referred to as "supply contract as of September 20, 2018"), and the said "in combination with the supply contract as of September 15, 2018" was ordered.

C. B paid KRW 28,600,000 to the Plaintiff on November 6, 2018.

D. B filed an application for commencing rehabilitation procedures with the Daejeon District Court 2018 Ma5037 on November 23, 2018, and received a decision on commencing rehabilitation procedures from the above court on December 12, 2018, and the Defendant was appointed as a custodian. B’s rehabilitation plan was authorized on December 13, 2019.

[Reasons for Recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 1 through 5, 7 (including numbers; hereinafter the same shall apply), Eul evidence Nos. 4, 5 and 6, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Plaintiff supplied all the goods under the instant supply contract to B. Accordingly, B is obligated to pay to the Plaintiff the price claim for the goods to be paid to the Plaintiff under the instant supply contract (hereinafter referred to as “the price for the goods of this case”) 253,290,180 won (55,00,000 won under the supply contract entered into as of September 15, 2018 + 198,290,180 won under the supply contract entered into as of September 20, 2018) and damages for delay.

B. On November 21, 2018, the Plaintiff supplied goods under the instant supply contract within 20 days prior to the commencement date of B’s rehabilitation procedure. As such, the Plaintiff’s claim for the price of goods KRW 253,290,180, which is the price for the delivery, constitutes a priority claim, since it constitutes a claim for the price of goods provided as continuous and normal business activities pursuant to Article 179(1)8-2 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”).

C. In addition, on December 12, 2018, the Defendant confirmed that the Plaintiff had a claim for the purchase price of KRW 260 million to the Plaintiff, and selected and supplied the goods produced by the Plaintiff. The Plaintiff’s claim for the purchase price of KRW 253,290,180 against the Plaintiff’s goods amounting to KRW 253,290,180 constitutes a priority claim pursuant to Articles 179(1)7 and 119(1) of the Debtor Rehabilitation Act.

3. Determination

A. The plaintiff's claim for the price of goods against B

1) On November 21, 2018, the Plaintiff supplied B with the goods equivalent to KRW 253,290,180 among the goods under the instant supply contract; the Plaintiff’s repayment of KRW 28,60,000 from B does not conflict between the parties; as seen earlier, I supplied B with the goods excluding the goods equivalent to KRW 34,50,000 (Additional Tax) around November 21, 2018 with respect to the specific delivery date and quantity ; the Plaintiff supplied the goods excluding the goods equivalent to KRW 34,50,000 (Additional Tax), which were the remainder of KRW 14,18 after the application for commencement of the rehabilitation procedure was filed, and the Plaintiff supplied the goods excluding the above 34,50,000 (Additional Tax) and KRW 20,000,000,000, which were the remainder of KRW 250,000,000,000,0000,000.

2) The Plaintiff asserts that the above repayment amount of KRW 28,60,000 is appropriated for a separate raw material cost claim. However, it is not sufficient to acknowledge that the entries in Gap evidence 5-4 (Tax Invoice issued by the Plaintiff) alone with respect to Eul have claims for raw material cost, separate from claims under the supply contract of this case. Rather, according to Gap evidence 4, it is reasonable to deem that the above amount of KRW 28,60,000, in light of the fact that the content of the supply contract of this case includes material cost, it is reasonable to deem that the above amount of KRW 28,60,000 was paid as part of the claim of this case. Eul paid KRW 28,60,000 and there was no agreement or designation on the method of appropriation. Accordingly, this is appropriated to KRW 55,00,000,000 for the claim for the price of goods under the supply contract of this case on September 15, 2018.

B. Whether the claim for the price of the instant goods constitutes a priority claim under Article 179(1)8-2 of the Debtor Rehabilitation Act

1) Article 179(1)8-2 of the Debtor Rehabilitation Act provides for “The debtor’s right to claim the price for the goods that the debtor continues and is supplied as a result of a continuous and normal business activity within 20 days prior to the commencement of rehabilitation procedures” as a priority claim.

2) In full view of the following facts and circumstances acknowledged by the purport of Gap's evidence Nos. 1 through 4, 9, 14, Eul evidence Nos. 1 and 2 and the whole purport of the pleadings, the instant product price claim constitutes the right to claim the price for the goods that Eul continues to engage in and obtain through normal business activities within 20 days prior to the application of Eul for commencement of the rehabilitation procedures. Eul continued to engage in the business of manufacturing and installing industrial machinery, and the goods supplied by the plaintiff and the Malaysia are processed in such a manner as cutting or saving steel plates, etc., and this is needed for the business continued by Eul.

② In addition to the Plaintiff, B has traded with the company as raw materials for the manufacture and manufacture of machinery, such as F, G, H.I, J, K, K, L, L, M, and N. It can be recognized that the Plaintiff entered into the instant supply contract with the Plaintiff around April 2018. Thereafter, B entered into the instant supply contract with the Plaintiff for the supply of government-owned goods and lass, and accordingly, the instant goods-related claim was created.

(3) The process that the Plaintiff concludes with the supply contract with the B and delivers the goods to the B and the goods to the B does not seem to have any special problems or problems.

④ There is no dispute between the parties that there is the goods supplied by the Plaintiff to B. The Plaintiff asserts that the specific date and quantity were all supplied to B on November 201, 2018, and the Defendant also recognized that the Plaintiff supplied all the goods under the instant supply contract to B on November 21, 2018 (the Defendant’s reply dated 26, 2019, and the Defendant’s document as of September 23, 2019). However, it is argued to the effect that the goods under the instant supply contract were delivered in sequence and the final delivery was completed on November 21, 2018. The Defendant asserted to the effect that, without any explanation, it can be specifically asserted as to the date of delivery as the delivery by the delivery party, it is difficult to believe that this is the Defendant’s assertion to the effect that it cannot be well known that the previous content was partially reversed.

3) Although the defendant's argument is inconsistent, since the delivery date of some of the goods under the supply contract of this case cannot be specified by the defendant himself/herself, but may not be specified within 20 days prior to the application date for commencement of rehabilitation procedures, this part of the goods payment claim of this case constitutes a priority claim if it can be specified. As seen earlier, this part of the goods payment claim of this case constitutes a priority claim under Article 179 (1) 7 and Article 119 (1) of the Debtor Rehabilitation Act, and the above assertion based on other factual relations is without merit (the defendant is deemed not to have asserted that the goods were supplied after November 23, 2018). However, even if it is so, if the administrator requested for the performance of the plaintiff and actually supplied the goods, if it constitutes a priority claim under Article 179 (1) 7 and Article 119 (1) of the Debtor Rehabilitation Act.

4) In addition, the Defendant argues that it is unfair to interpret public-interest claims under Article 179(1)8-2 of the Debtor Rehabilitation Act limited to cases where both the cause of the claim for the price of goods and the supply of goods are within 20 days before the application for commencement of rehabilitation procedures. Thus, this case’s claim for the price of goods under the supply contract of this case made 20 days after the application for commencement of rehabilitation procedures is not a public-interest claim, and the delivery result within 20 days before the application for commencement of rehabilitation procedures by the Plaintiff after the delivery date is made by the Plaintiff is unfair. However, Article 179(1)8-2 of the Debtor Rehabilitation Act provides that the actual time of the supply of goods is set as the basis for classification of claims. The newly established purport of the above provision is to strengthen the protection of commercial creditors so that the debtor using the rehabilitation procedures can secure continuity of business through continuous commercial transactions, and thus, if the other party to the transaction fails to supply goods within the deadline for commencement of rehabilitation procedures (referring to the debtor who applied for commencement of rehabilitation procedures and constitutes an order contract of this case’s.).

C. Sub-decision

Therefore, according to the above 24,690,180 won in total and 1.26,400 won in the supply contract of September 15, 2018 (55,000 won - 28,6000 won in the repayment amount) for the plaintiff 26,400 won in the amount due under the supply contract of September 15, 2018 (20% in the amount due from December 13, 2018 to September 20, 2018) and there is no other obligation to pay the plaintiff 20% in the amount due under the supply contract of the above 198,290,18, 200 won in the amount due to the above 20% of the annual amount due from the 20th day following the date on which the plaintiff 20,000 won in the supply contract of this case, and there is no other obligation to pay the plaintiff 20% of the total amount due from the 15th day after the day after the plaintiff 20th day after the claim.

4. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed for lack of merit. Since the court of first instance partially accepted the plaintiff's appeal, and the part against the plaintiff corresponding to the above order of payment among the judgment of first instance shall be revoked and the order of payment of the above amount shall be issued. As to the remaining claims, the court of first instance which dismissed only the plaintiff's appeal cannot be sentenced to the judgment of dismissal which is more unfavorable to the plaintiff under the principle of prohibition of disadvantageous alteration in this case where only the plaintiff appealed against the judgment of first instance. Thus,