(영문) 서울고등법원 2021.3.24. 선고 2020나2020584 판결

1. The part concerning the counterclaim among the judgment of the first instance shall be modified according to the claim that was modified by the court as follows.

It is confirmed that the estate claim of the plaintiff (Counterclaim defendant) listed in the attached Table 1 falls under "other estate claims provided for in Article 477 (2) of the Debtor Rehabilitation and Bankruptcy Act."

2. The costs incurred by a counterclaim, out of the total costs of the lawsuit, shall be borne by the plaintiff.

Purport of claim and appeal

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) 210,000,000 won with 6% interest per annum from April 1, 2018 to November 12, 2019, and 12% interest per annum from the next day to the date of full payment.

B. Counterclaim.

In addition, it is confirmed that the plaintiff's estate claim (hereinafter "the claim of this case") stated in the separate sheet No. 1 does not constitute estate claims which take precedence over other estate claims provided for in Article 477 (2) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act"). (The defendant in the first instance court claimed that the claim of this case does not constitute estate claims provided for in Article 477 (2) of the Debtor Rehabilitation Act, and that the claim of this case is not an estate claims provided for in Article 473 of the same Act, and that the conjunctive claim is not an estate claims provided for in Article 477 (2) of the same Act, but the court made it clear that it seeks confirmation as the primary claim, and changes the conjunctive claim in exchange).

2. Purport of appeal

Of the judgment of the court of first instance, the part of the counterclaim against the defendant is revoked. All of the defendant's counterclaims are dismissed (in spite of the modification of the purport of the claim, the contents that seek confirmation as the altered main counterclaim claims are identical to the main counterclaim claims of the court of first instance, so the plaintiff's appeal is valid as against the

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff filed a claim against the Defendant as a principal lawsuit, and the Defendant, as a counterclaim, filed a claim to confirm that the Plaintiff’s claim does not constitute an estate claim under Article 477(2) of the Debtor Rehabilitation Act or an estate claim under Article 473 of the same Act. Accordingly, the first instance court rendered a judgment citing the Plaintiff’s principal claim and the Defendant’s main claim and the Defendant’s main claim.

Accordingly, only the plaintiff appealed against the part of the first instance judgment regarding the counterclaim, and since the defendant modified the purport of the counterclaim, the scope of the trial of this court is limited to the altered main and conjunctive counterclaim.

2. Basic facts

A. B Co., Ltd. (hereinafter referred to as “debtor”) is a company aimed at the development, manufacture, commercialization, distribution, and sale of poly-mixed products. The Ulsan District Court rendered a decision on commencing rehabilitation procedures for the debtor company as of June 13, 2016.

B. The Plaintiff entered into each legal service contract (hereinafter collectively referred to as the “instant legal service contract”) with the debtor company as follows. After the commencement of rehabilitation procedures with respect to the debtor company, the Plaintiff entered into a contract with the Ulsan District Court (hereinafter referred to as the “instant contract”). After maintaining the preexisting contract Nos. 1 and 2, the Plaintiff entered into the contract Nos. 3 and 4 with the permission of the Ulsan District Court, and provided advice related to domestic rehabilitation procedures and advice on the US D’s bankruptcy procedure, the parent company of the debtor company.

A person shall be appointed.

C. On August 28, 2017, the Ulsan District Court ordered a debtor company’s custodian to submit a rehabilitation plan with respect to the continuation of the debtor company’s business until November 13, 2017. However, the custodian and the debtor company did not submit the rehabilitation plan by the above deadline. The debtor company filed an application for bankruptcy with the above court on November 6, 2017. On November 14, 2017, the above court revoked rehabilitation procedures for the debtor and decided to discontinue rehabilitation procedures on November 30, 2017.

D. On December 12, 2017, the Ulsan District Court declared the debtor company bankrupt in accordance with Article 6(2)1 of the Debtor Rehabilitation Act (Ulsan District Court 2017Hahap516, hereinafter “instant bankruptcy procedure”), and the defendant was appointed as the trustee in bankruptcy of the debtor company.

E. The Plaintiff did not receive a total of KRW 501,152,615 for legal advice provided from June 13, 2016 to December 11, 2017, which was the date of commencing the rehabilitation procedure for the debtor company, from June 13, 2016 to December 11, 2017.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 10 (including satisfy number), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

3. Relevant statutes;

The major Acts and subordinate statutes related to the instant case are as shown in attached Form 2.

4. Determination on a counterclaim

A. The defendant's assertion

At present, compared to the bankruptcy estate, since the total amount of the estate claims of the debtor company is significantly high compared to the debtor company, the defendant is expected to make a pro rata repayment of the estate claims pursuant to Article 477(1) and (2) of the Debtor Rehabilitation Act. Although the claim in this case is an estate claim under Article 6(4) of the Debtor Rehabilitation Act, the claim in this case is not an estate claim under Article 473 subparag. 4 of the Debtor Rehabilitation Act, nor an equivalent claim is an estate claim that takes precedence over other estate claims under Article 477(2) of the Debtor Rehabilitation Act (hereinafter referred to as " estate claim"), and thus, it cannot be deemed an estate claim (hereinafter referred to as "a preferential estate claim"). However, the plaintiff asserts that the claim in this case is an estate claim under Article 473 subparag. 3, 4, and 7 of the Debtor Rehabilitation Act, which constitutes an estate claim under Article 477(2) or should be treated as an equivalent claim.

Accordingly, the Defendant seeks to confirm that the instant claim constitutes “other estate claims” under Article 477(2) of the Debtor Rehabilitation Act, and seek confirmation that the instant claim does not constitute estate claims under Article 477(2) first of all.

B. Judgment on the main claim

1) Whether a priority claim constitutes an estate claim

The instant claim constitutes a priority claim under Article 179(1)5 of the Debtor Rehabilitation Act and becomes a estate claim under Article 6(4) due to the declaration of bankruptcy against the debtor company. However, for the following reasons, the instant claim cannot be deemed a estate claim first under Article 477(2) of the Debtor Rehabilitation Act.

A) Under the literal interpretation of the Debtor Rehabilitation Act, the priority claim arising from the rehabilitation procedure prior to the declaration of bankruptcy is not based on Article 477(2) of the same Act.

(1) Article 477 of the Debtor Rehabilitation Act provides for general estate claims under Article 473 and special estate claims under other special provisions for the purpose of proceeding the fair and smooth bankruptcy proceedings, and Article 477 of the same Act provides for the method of repayment when the bankruptcy estate is unable to repay the total amount of estate claims. The estate claims that take precedence over other estate claims listed in the Debtor Rehabilitation Act shall be treated with special circumstances so that the estate claims can be repaid prior to other estate claims, either smoothly or fairly, or in the public interest and political reasons. Therefore, as far as possible, the content of the estate claims that can be predicted and clearly interpreted in accordance with the language and text of the Debtor Rehabilitation Act shall be interpreted.

(2) According to Article 477(1) of the Debtor Rehabilitation Act, where it becomes clear that the bankruptcy estate is insufficient to fully repay the total amount of the estate claims, the repayment of the estate claims shall be made in proportion to the amount of unpaid claims, notwithstanding the preferential right prescribed by other Acts and subordinate statutes.

Since Article 477(2) of the Debtor Rehabilitation Act provides for special exceptions to such principles, it is reasonable to interpret that only the estate claims enumerated in Article 473(1) through (7) and (10) explicitly provided for in Article 477(2) should take precedence over other estate claims. However, Article 477(2) of the Debtor Rehabilitation Act does not list the "public-interest claims that constitute estate claims under Article 6(4)" as well as the "Article 473(1) through (7) and (10)."

(3) Article 477(3)3 of the Debtor Rehabilitation Act, newly established on February 4, 2020 and enforced on the same day, when the bankruptcy estate is insufficient to repay the total amount of the estate claims, the new loans among the claims that become the estate claims pursuant to Articles 6(4) and (9) and 7(1) and the employees’ wages, etc. shall take precedence over other estate claims, and the order of the remainder claims shall be determined pursuant to Article 477(2). As such, Article 477(4) explicitly provides that some of the public-interest claims which become the estate claims pursuant to Article 6(4) shall take precedence over other estate claims. In light of the interpretation of the foregoing provision, it is reasonable to deem that the remainder claims not provided for in Article 477(3) does not take precedence over the other estate claims. Even if the aforementioned estate claims were newly established, regardless of the type of the claims previously established, the said estate claims are not deemed to have taken precedence over other types of estate claims.

B) It is difficult to find reasonable grounds to grant the status of estate claims, taking into account the nature of public-interest claims that constitute estate claims.

(1) Estate claims recognized as having priority over other estate claims are arising after the declaration of bankruptcy, and either have the nature of expenses and claims necessary to carry out the bankruptcy procedure (Article 473 subparag. 1, 3, 4, and 7), or have the nature of a claim recognized as estate claims for equity in the situation where the other party takes losses only when he/she obtains profits from the bankruptcy estate, or has the nature of a claim recognized as estate claims for equity (Article 473 subparag. 5 and 6) in special social and policy considerations, such as tax collection or protection of workers (Article 473 subparag. 2 and 10). On the other hand, public-interest claims include claims for other purposes necessary for the debtor’s rehabilitation (see Article 179 of the Debtor Rehabilitation Act), and where estate claims are declared pursuant to Article 6(1) or (2) of the Debtor Rehabilitation Act, it is difficult to recognize, in principle, an act performed by the bankruptcy administrator under Article 473 subparag. 2 and 10 of the Debtor Rehabilitation Act prior to the declaration of bankruptcy.

(2) The purpose of rehabilitation procedures is to coordinate legal relations among interested parties, such as creditors, shareholders, equity right holders, etc. with respect to debtors facing distress due to financial difficulties, and to promote efficient rehabilitation of the debtor or his/her business, and the purpose of the two systems is to fairly facilitate patients and distribute the debtor's assets that are difficult to recover (see Article 1 of the Debtor Rehabilitation Act). In addition, taking into account the fact that there is a time interval between the time the rehabilitation procedure commences and the time the debtor files an application for commencement of rehabilitation procedures and the time the debtor is declared bankrupt under Article 6(1) or (2) of the Debtor Rehabilitation Act, and that there may be a difference in the debtor's property status, it cannot be deemed that recognizing priority over other estate claims accords with the purpose of bankruptcy procedures.

C) The Plaintiff asserts that the instant claim is similar to the “claim arising from the act performed by the trustee in bankruptcy with respect to the bankrupt estate” under Article 473 subparag. 4 of the Debtor Rehabilitation Act, and that the instant claim ought to be deemed claims falling under Article 473 subparag. 4. This is the same in that both the trustee and the trustee in bankruptcy in the rehabilitation procedure hold the right to dispose of and dispose of the debtor’s property (Articles 56 and 384 of the Debtor Rehabilitation Act). However, as seen earlier, due to the difference between the purpose of the rehabilitation procedure and the bankruptcy procedure, the trustee’s business focuses on the debtor’s rehabilitation, while the trustee in bankruptcy’s business focuses on the realization of the debtor’s property at the highest price and distributing it fairly, it is difficult to see that two institutions are identical [Article 77(1) of the Debtor Rehabilitation Act, Article 27 subparag. 5 of the Commercial Act, and Article 287-17 subparag. 4 of the Debtor Rehabilitation Act are dissolved if the trustee in bankruptcy continues to continue to perform bilateral contract between the debtor’s.

In full view of these facts, the act of the custodian of the rehabilitation procedure is immediately the same as the act of the trustee in bankruptcy, and the instant legal service contract is treated the same as that of the Defendant, who is the trustee in bankruptcy, and the instant claim cannot be deemed to constitute “the claim arising from the act of the trustee in bankruptcy with respect to the bankruptcy estate” under Article 473 subparag.

D) The Plaintiff asserts that if an estate claim is not treated as a estate claim with a preferential right to payment under Article 6(4) of the Debtor Rehabilitation Act, it cannot be protected if the debtor is unable to recover and go through bankruptcy proceedings, and thus, it is contrary to the purport of Article 6(4) of the Act deeming the priority claim as a estate claim.

However, as seen earlier, public-interest claims, as a matter of principle, have the character as bankruptcy claims, and are limited to those acknowledged as estate claims giving preferential repayment and making occasional repayment (Articles 475 and 476 of the Debtor Rehabilitation Act). In light of the above, it is difficult to accept the Plaintiff’s assertion that public-interest claims must be recognized as estate claims first of all as stipulated in Article 477(2) in light of the following: (a) protection is more strong than other bankruptcy creditors; and (b) if the bankruptcy estate is not in a situation sufficient to repay the total amount of the estate claims, the estate claims still take precedence over the bankruptcy claims (Article 477 and Articles 475 and 476).

E) When the decision to discontinue the rehabilitation procedures is confirmed pursuant to Article 291 of the Debtor Rehabilitation Act, the Plaintiff asserts that, except in the case where a bankruptcy is declared pursuant to Article 6(1), the custodian is obliged to repay the public-interest claims with the debtor’s property and the public-interest claims are protected, the Plaintiff should first be recognized as a estate claim even in the case where a voluntary bankruptcy is declared pursuant to Article 6(2), so as not to be placed in a position more favorable than the other estate claims.

However, insofar as a bankruptcy is declared pursuant to Article 6(2) of the Debtor Rehabilitation Act, the debtor’s property should be fairly liquidated in compliance with the purpose of the bankruptcy procedure. Public-interest claims should be preferentially liquidated as estate claims despite their nature, despite having the nature of bankruptcy claims, and thus, the status of public-interest creditors is sufficiently protected. Moreover, it cannot be interpreted that the status of public-interest claims should be given equal status to other estate claims arising after bankruptcy is declared. Moreover, considering that the change in status of other claims arising from the performance of bankruptcy procedures is made by the fair realization of assets and public-interest needs, it is unnecessary to recognize public-interest claims as estate claims. The Plaintiff’s above assertion cannot be accepted.

F) The Plaintiff’s assertion that the instant claim should be recognized as an estate claim under Article 473 subparag. 4 of the Debtor Rehabilitation Act, since the trustee in bankruptcy recognized damages for delay after the declaration of bankruptcy among the instant claim as an estate claim under Article 473 subparag. 4 of the same Act.

However, since estate claims are frequently repaid, the trustee in bankruptcy is obligated to repay the claims when they are estate claims (Article 475 of the Debtor Rehabilitation Act). In the event that the claims are not repaid, the trustee in bankruptcy is obligated to repay the claims when they are estate claims (Article 475 of the Debtor Rehabilitation Act), and at least obligations arising from nonperformance due to the act of the trustee in bankruptcy prescribed in Article 473 subparag. 4 may be deemed as obligations arising from the act of the trustee in bankruptcy (see, e.g., Supreme Court en banc Decision 2013Da64908, Nov. 20, 2014). The approval of the trustee in bankruptcy as estate claims under Article 473 subparag. 4 is limited to the portion of delay damages, not to the entire claim in this case (Evidence No. 10). In light of the fact that there is no other evidence that the trustee in bankruptcy approves the entire claims as a foundation

G) Meanwhile, according to Article 477(3) of the Debtor Rehabilitation Act, the Plaintiff asserts that the claim of this case, which is a special estate claim, should be recognized as a estate claim in preference to the application of Article 477(2).

First of all, Article 477(3) of the Debtor Rehabilitation Act cannot be applied to this case, which is a case declared bankrupt prior to the enforcement of the said provision. In addition, the purport of the said provision is to first reimburse claims for new loans, etc., unlike those provided for in paragraph (2), and to apply the remainder as it is, however, Article 477(2) of the Debtor Rehabilitation Act; it is difficult to deem that all claims for public loans, etc., which were claims for estate claims, constitute estate claims as priority as provided for in Article 477(2); and the purport of Article 477(3) of the same Act, which provides that a new loan, as provided for in Article 180(7), shall be repaid prior to other estate claims, is to reflect the purport that a new loan is repaid prior to other

2) Judgment on the Plaintiff’s abuse of rights

A) The Plaintiff asserted that the Defendant’s claim for the counterclaim of this case against the Plaintiff should be dismissed as abuse of rights since the Defendant’s claim for confirmation that the claim of this case against the Plaintiff is not an estate claim, because it unfairly discriminates against the public interest creditors, although the Defendant, as a public interest creditor against the obligor company, had actually given preferential repayment to E (hereinafter “E”) in a position similar to the Plaintiff.

B) According to the evidence Nos. 3 and 4, since the estate claims repaid by E can be recognized as having been claims for ethyl price arising after the declaration of bankruptcy, it cannot be recognized that the defendant's abuse of rights as alleged by the plaintiff. This part of the plaintiff's assertion is without merit.

C. Sub-decision

Therefore, the instant claim constitutes “other estate claims” under Article 477(2). As long as the Plaintiff contests this, there is a benefit to seek confirmation. As long as accepting the Defendant’s primary counterclaim claim, it does not separately examine the conjunctive counterclaim claim.

5. Conclusion

Therefore, the defendant's primary counterclaim should be accepted on the grounds of its reasoning. Since the defendant modified the purport of the claim in this court, the judgment of the first instance court should be modified in accordance with the amended purport of the claim. It is so decided as per Disposition.

Judges

The presiding judge shall be appointed by a judge.

Judges Yoon Young-gu

Judges in the order of rank

Note tin

1) According to the ruling of the declaration of bankruptcy No. 3, the following is indicated as the declaration of bankruptcy under Article 6(1) of the Debtor Rehabilitation Act. However, it appears to be a clerical error under Article 6(2) of

2) Articles 474, 337(2), 347(2), 348(2), 398(1), 469, and 6(4) and (9) of the Debtor Rehabilitation Act

3) This does not apply to this case, since it is applied from a bankruptcy estate that constituted a bankruptcy declaration case that was decided after enforcement pursuant to Article 2 of the Addenda.

4) The Debtor Rehabilitation Act (Act No. 16920, Feb. 4, 2020) states that with respect to the grounds for the enactment and amendment of the aforementioned provision, when there is funds borrowed with the permission of the court to continue the debtor's business among the claims arising from the borrowing of funds and other acts conducted after the commencement of rehabilitation procedures by the custodian with respect to the debtor's business and assets in order to boost the inflow of new funds in the corporate rehabilitation procedures, and the claims arising from the debtor's business and the purchase of materials and other acts indispensable for the debtor's business continued after the commencement of rehabilitation procedures after the commencement of rehabilitation procedures, the custodian intends to give priority to other estate claims, such as the claims for new funds and the wages of workers.

5) Under the age of rehabilitation procedures, rehabilitation secured creditors are restricted from exercising their rights in accordance with the rehabilitation procedures. During that period, public-interest creditors are entitled to receive preferential reimbursement than rehabilitation secured creditors. However, if the rehabilitation procedures are implemented, the secured party can promptly liquidate and dispose of securities outside the bankruptcy procedures. Furthermore, taxation claims that were rehabilitation claims in the rehabilitation procedures and public-interest claims that are rehabilitation claims and the collection priority order is superior to the general bankruptcy claims (health insurance premiums, etc.) are superior to the general bankruptcy claims (health insurance premiums, etc.) in the rehabilitation procedures. Such change is based on the public interest and policy needs to achieve the purpose of the bankruptcy procedures.