[1] Meaning of “equal” under Article 229 of the former Company Reorganization Act, and whether the extent of alteration of right to reorganization claim of a controlling stockholder, a person in a special relationship with him, or an affiliated company may be determined differently from other reorganization creditors within the reasonable scope (affirmative)

[2] The case holding that Article 229 of the former Company Reorganization Act does not violate Article 229 of the former Company Reorganization Act, where a reorganization claim is not treated as a debt to an affiliate company of the reorganization company, and a protection provision of rights is established in the same manner as that of a large commercial creditor's debt to the large

[1] Article 229 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see Article 218 of the current Debtor Rehabilitation and Bankruptcy Act) / [2] Article 229 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see Article 218 of the current Debtor Rehabilitation and Bankruptcy Act)

[1] Supreme Court Order 9Do35 delivered on January 5, 2000 (Gong2000Sang, 539) Supreme Court Order 2002Da121 Delivered on December 10, 2004 (Gong2005Sang, 227)

The manager of the company's career of the reorganization company is the company taking over the lawsuit of Park Jong-sung (Law Firm Gyeong & Yang, Attorneys Kang Jong-sung et al., Counsel for the plaintiff-appellant)

Oral Corer Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Order 2004Ra375 dated May 31, 2005

The special appeal is dismissed.

The grounds of special appeal are as follows: First and Second points are considered as same.

1. A special appeal may be filed only on the ground that there is a violation of the Constitution that affected the trial on the relevant decision or order, or that a judgment on the violation of the Constitution or the Act, which is the premise of the trial, is unreasonable (Article 449(1) of the Civil Procedure Act).

2. Article 229 of the former Company Reorganization Act (amended by Act No. 7428 of Mar. 31, 2005) provides, “The conditions of the reorganization plan shall be equal among persons holding rights of the same nature.” The meaning of equality refers not to formal equality, but to substantive equality that does not go against the concept of fairness and fairness. Even if the reorganization plan discriminates in consideration of the difference in nature of reorganization claims or securities, if it does not go against the concept of equity (see Supreme Court Order 2002Da121 of Dec. 10, 2004, Supreme Court Order 9Da35 of Jan. 5, 2000, etc.). The claims against the controlling shareholder of the reorganization company and its related parties or its affiliated companies against the reorganization company or the controlling shareholder, related parties, etc. may be compared to those of the reorganization company in the bankruptcy procedure by comprehensively taking into account the degree of failure, the amount of claims caused by the reorganization of the company, the time when claims occur and the extent of change in rights against other reorganization creditors.

3. The reorganization claim in this case was succeeded to Macker Co., Ltd. (hereinafter referred to as "Dacker Co., Ltd.") in the course of the reorganization company (hereinafter referred to as "Macerererer Co., Ltd.") but it was merged after acquisition of reorganization procedure for the reorganization company by Orcerer Co., Ltd. (hereinafter referred to as "Macerererer") through the reorganization procedure for three years prior to the commencement of reorganization procedure for the reorganization company. It deviates from the affiliates of the reorganization company; the type and amount of the reorganization claim in this case disputing the degree of change of rights; the time and details of the reorganization claim in this case; the reorganization claim in this case was succeeded to Macerer by the merger prior to the commencement of reorganization procedure; investment in career Ccererer Co., Ltd.; the provision of guarantee and guarantee to the reorganization company was likely to affect the finance of the reorganization company; however, it is not sufficient to view that the reorganization claim in this case was not considerably unfavorable to other reorganization creditors, and the part of the reorganization claim in this case's interest claim in the progress of the reorganization plan is exempted.

4. Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)