(영문) 대법원 2016.5.12.선고 2015다78215 판결

The part of the judgment of the court below, excluding the part on the Appointor D, shall be reversed, and that part of the case shall be remanded to the Seoul Southern District Court. The remaining appeal shall be dismissed.

The costs of appeal between the appointed party D and the defendant shall be borne by the said appointed party.

Reasons

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court rejected the Plaintiff’s assertion that the instant advisory contract and the issuance of promissory notes thereunder have been revoked pursuant to Article 110(1) of the Civil Act, on the grounds that there is insufficient evidence to support that the Defendant’s deception had concluded the instant advisory contract.

In light of the records, the lower court did not err in its judgment by misapprehending the rules of evidence or by misapprehending the legal doctrine on the cancellation of declaration of intent by fraud, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

Based on its stated reasoning, the lower court rejected the Plaintiff’s assertion that the instant advisory contract was null and void in violation of Article 109 subparag. 1 of the Attorney-at-Law Act. Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on legal affairs under Article 109 subparag. 1 of the Attorney-at-Law Act

3. As to the third ground for appeal

A. The lower court determined that the Defendant’s claim based on the authentic deed of promissory notes can only be asserted as an objection according to the instant legal proceedings, and thus, the Defendant’s failure to report the claim as a rehabilitation claim in the rehabilitation proceedings against the Plaintiff, and the above claim cannot be deemed as forfeited solely on the ground that it is not indicated in the rehabilitation claim details.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) A rehabilitation creditor who intends to participate in rehabilitation procedures under Articles 148 and 152 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) shall file a report on the rehabilitation claim. The rehabilitation claims listed in the list under Article 151 of the Debtor Rehabilitation Act are deemed to have been reported. Barring any special circumstance, any unreported rehabilitation claims shall be forfeited when it is decided to authorize the rehabilitation plan under Article 251 of the Debtor Rehabilitation Act (see Supreme Court Decision 2007Da44354, Dec. 9, 2010; 2007Da44361, Dec. 9, 2010).

2) According to the records, on April 12, 2013, the Plaintiff and Selected D jointly issued promissory notes (hereinafter “instant promissory notes”) at par value 50,00,000, the Defendant, and the date of issuance, April 12, 2013, and June 30, 2013 to pay remuneration under the instant advisory agreement, and delivered them to the Defendant by a notary public under the notarial deed No. 346, Sept. 1, 2014, where the instant lawsuit was pending, the decision to commence rehabilitation proceedings was rendered with respect to the Plaintiff on September 1, 2014. ③ The Plaintiff’s administrator did not enter the Plaintiff’s claim list based on the notarial deed of this case, the Defendant did not report the existence of the rights and obligations of the instant promissory notes as rehabilitation claims, and the Defendant did not later report the existence of the rights and obligations of the Plaintiff on the notarial deed, but did not request the Defendant to supplement the rehabilitation plan.

3) Examining the aforementioned factual basis in light of the legal principles as seen earlier, it is reasonable to view that the Defendant’s claim based on the notarial deed of promissory notes of this case against the Plaintiff constitutes rehabilitation claims, and that the claim based on the notarial deed of this case constitutes rehabilitation claims, and there was no report as rehabilitation claims, and otherwise no special circumstance exists that the rehabilitation claims will not be forfeited even if the rehabilitation plan is authorized. Therefore, it is reasonable to deem that the Defendant’s claim based on the notarial deed of this case against the

Nevertheless, the lower court erred by misapprehending the legal doctrine on the forfeiture of unreported rehabilitation claims, thereby adversely affecting the conclusion of the judgment.

However, even if the Defendant’s rights against the Plaintiff were forfeited, it does not affect the Defendant’s right to the Appointed D, a joint issuer of the Promissory Notes of this case (see Supreme Court Decision 2003Da18685, May 30, 2003). Therefore, the lower court’s conclusion that dismissed the Defendant’s claim against the Appointed D among the instant case is justifiable.

Therefore, the part of the judgment of the court below, excluding the part regarding the Appointor D, is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed, and the costs of appeal between the Appointor D and the defendant are assessed against the losing party. It is so decided as per Disposition by