Whether the execution of a right to security by means of means of transfer is included in the "mandatory execution, etc. based on rehabilitation security right" under Article 58 (2) 2 of the Debtor Rehabilitation and Bankruptcy Act prohibited at the time the decision on commencement of rehabilitation procedures has been rendered (affirmative), and where rehabilitation procedures commence for a debtor who is a transferor of a claim after a claim has been transferred for the purpose of security, whether the act of filing a lawsuit by a mortgagee of a claim seeking payment of a claim against a third debtor constitutes the act of executing a right to security by means of

According to Article 58(1)2 of the Debtor Rehabilitation and Bankruptcy Act, when a decision is made to commence rehabilitation procedures, compulsory execution, etc. based on a rehabilitation claim or rehabilitation security right shall not be performed. Article 141(1) of the Debtor Rehabilitation Act also provides that a transfer security right shall be included in a rehabilitation security right. Therefore, the “mandatory execution, etc. based on a rehabilitation security right” under Article 58(2)2 of the Debtor Rehabilitation Act, which is prohibited at the time the decision is made to commence rehabilitation procedures, includes the act of executing a transfer security right.

An act of exercising the right to collateral security means that an obligee is ultimately entitled to receive reimbursement by exercising the right to collect against a third party obligor. In particular, if the subject matter of the right to collateral security is a monetary claim, there is no need for separate procedures, such as realizing monetary claims to obtain satisfaction of the secured claim, and if a mortgagee files a lawsuit against a third party obligor seeking performance of an obligation and obtains a favorable judgment, there is no way to prevent the third party obligor from performing the obligation at will to the mortgagee. Therefore, where rehabilitation procedures commence against a debtor who is the transferor of the claim after the transfer of the claim for collateral security, the act of filing a lawsuit seeking payment of the claim against the third party obligor constitutes an act of executing the right to collateral security prohibited by the decision of commencement of rehabilitation procedures. Such interpretation accords with the contents of the Debtor Rehabilitation Act, which provides that the right to collateral security is also included in the right to collateral security after the commencement of rehabilitation procedures for efficient rehabilitation of the debtor.

Articles 58(1)2 and (2)2 and 141(1) of the Debtor Rehabilitation and Bankruptcy Act

Supreme Court Decision 2009Da90146 Decided May 26, 201 (Gong2011Ha, 1268)

The rehabilitation debtor, who is the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit of the party taking over the lawsuit (

Seoul Urban Transit Corporation, a litigation taking over of the Seoul Metropolitan Government Urban Transit Corporation

Korean Bank (Law Firm Democratic, Attorneys Kim Jong-min et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2086037, 2086044 decided July 26, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The reasoning of the lower judgment and the record reveal the following facts.

A. Conclusion of a contract for the purchase of the electric tea of this case and filing of the lawsuit of this case

1) The Seoul Special Metropolitan City shall jointly implement the extension project of the section extension project of the Incheon Metropolitan City, Seocheon-si and Seoul subway 7, and entrusted the Seoul Metropolitan City Urban Railroad Corporation (hereinafter “Seoul Metropolitan City Urban Railroad Corporation”) with the part in charge of the Seoul Metropolitan Government.

2) On June 2010, the Urban Railroad Corporation selected a companyro committee (hereinafter “ro committee”) through a bid, etc., entered into a first electric car purchase agreement with a company that purchases the total amount of KRW 56 of the 51,734,227,710 of the ro committee and the 56 electric car, and completed the payment of the goods by June 8, 201, after being supplied eight percent of the 1 electric car by February 28, 2011. Since then, the joint project operator in Seoul Special Metropolitan City, the remaining timing for the purchase of the dong car is late due to the reasons on the part of the joint project operator in Seoul Special Metropolitan City, and the Urban Railroad Corporation entered into a second electric car purchase agreement with a company that purchases the remaining total of KRW 48 of the 6 electric car and the remaining total of the 48 electric car on December 29, 2011.

3) On June 11, 2012, commission filed an application for the contract amount adjustment with the Urban Railroad Corporation according to the index adjustment rate, and filed the instant lawsuit against the Urban Railroad Corporation seeking the payment of additional goods with respect to the Urban Railroad Corporation that did not comply with the request.

B. Assignment of claims of this case

1) From February 23, 2006 to March 30, 2012, the Committee borrowed funds worth KRW 12.3 billion from an independent party intervenor (hereinafter “participating”). On March 30, 2012, before filing an application for the contract amount adjustment due to price fluctuation with respect to an urban railway corporation, the Committee entered into a contract with an intervenor on March 30, 2012 and the secondary contract with respect to an urban railway corporation for the assignment of the claim for the goods under the secondary contract with respect to the metropolitan railway corporation (hereinafter “the first assignment of claim”), and the Urban railway Corporation approved the assignment of the claim by the Committee on April 3, 2012.

2) On March 29, 2013, after filing an application for contract price adjustment, the Committee transferred to the intervenors an amount equivalent to one billion won out of the goods price claims to be increased following the contract price adjustment (hereinafter “the second assignment of claims”), and notified the Urban Railroad Corporation by content-certified mail on the same day, and the above notification of transfer reached the Urban Railroad Corporation around that time. At the time of the second assignment of claims, the Committee and the Intervenor agreed that “at the time of entry into force of the transfer, the following obligations against the Intervenor are discharged (or the obligation is discharged to the extent of the amount of the transferred claims).”

(c) Commencement of rehabilitation procedures for the Commission, reporting on the rehabilitation security rights of the Intervenor, and the Intervenor’s application for participation in the case of the independent party;

1) On May 14, 2014, during the first instance trial, rehabilitation procedures for the Commission were commenced on May 14, 2014. The Intervenor reported the total sum of the principal and interest of the loan claims (principal KRW 4,193,658,98,98 (principal KRW 3,488,650,709 among them) as rehabilitation claims within the period for reporting the obligation under the said rehabilitation procedures, and any objection thereto was not raised. The Intervenor filed a subsequent report on the rehabilitation security right by subsequent completion while having been granted the security right for the said loan claims, and at the time the Intervenor stated only the transfer security right based on the first assignment of claims as security right.

2) After the commencement of the wind rehabilitation procedure, the intervenor filed an application for intervention by the independent party to the instant case, claiming that the urban railway corporation is a mortgagee or transferee of the additional goods payment claim against the urban railway corporation, separately from the subsequent report on the completion of the rehabilitation security right.

3) Under the above rehabilitation procedure, the manager of the Commission raised an objection against the rehabilitation security right reported by the Intervenor on the grounds that the Intervenor’s claim for the same loan was reported as the rehabilitation claim, and that the claim for the additional goods in this case does not fall under the object of the first assignment of claims. The Intervenor filed a final judgment on the inspection of the rehabilitation security right against the manager of the Commission.

(d) Authorization of the rehabilitation plan for the window and the termination of the rehabilitation procedures;

On December 16, 2014, when the first instance court was in progress, the rehabilitation court approved the Master Committee rehabilitation plan, and completed the rehabilitation procedure for the Commission on October 23, 2015. The main contents of the above rehabilitation plan are as follows.

1) With respect to loans for rehabilitation security rights, the full amount of the interest at issue and interest accrued prior to commencement shall be repaid in cash, 90% of which shall be repaid in 2015, and 10% shall be repaid in 2018. The interest accrued after commencement shall be repaid on the date of repayment from 2014 to 2018, applying the annual interest rate of 3%.

2) A security right of a rehabilitation secured creditor shall continue to exist according to the previous order, as a security right secured by a rehabilitation security right, the rights of which are modified according to the present rehabilitation plan. However, a security right which is not recognized as a rehabilitation security right,

3) With respect to rehabilitation claim lending obligations, 66% of the existing principal and interest prior to commencement shall be converted into equity, 34% shall be repaid in cash, 15% per annum from 2019 to 2023 shall be repaid in installments from 2024, and 25% per annum from 2024 shall be repaid in installments. The interest accrued after commencement shall be exempted in full.

4) In the event that an unregistered claim is confirmed as a rehabilitation security right or a rehabilitation claim by a final inspection judgment or a final confirmation lawsuit, the reimbursement shall be made according to the method of alteration and satisfaction of the right, which is most similar in light of the nature and content of the right. If there is any dispute over applying such alteration of right and the method of repayment, the rehabilitation court shall be determined upon the

(e) Taking over the status of a party;

In the process of the judgment of the court below, the plaintiff taken over the proceedings of the Committee on the grounds that the plaintiff merged the Committee and comprehensively succeeded to the rights and obligations of the Urban Railroad Corporation and the defendant established by the merger between the Urban Railroad Corporation and the Seoul Urban Railroad Corporation, and taken over the proceedings of the Urban Railroad Corporation.

2. Determination on the grounds of appeal Nos. 1 and 3

The lower court, on the grounds indicated in its reasoning, determined that the first assignment of claims was included in the subject-matter of the right to collateral transfer based on the first assignment of claims based on an intervenor’s loan claim as the secured claim. Furthermore, the lower court determined that the second assignment of claims was not the secured purpose, but the second assignment of claims based on the additional amount of KRW 1 billion in lieu of the repayment of claims.

In light of the relevant legal principles and records, the court below did not err by misapprehending the legal principles as to the interpretation of the object of the security of the first assignment of claims and the legal nature of the second assignment of claims, due to violation of the rules of evidence, and the transfer

3. Judgment on the second ground for appeal

A. According to Article 58(1)2 of the Debtor Rehabilitation and Bankruptcy Act, when a decision is made to commence rehabilitation procedures, compulsory execution, etc. based on a rehabilitation claim or rehabilitation security right may not be conducted. Article 141(1) of the Debtor Rehabilitation Act also provides that a transfer security right shall be included in a rehabilitation security right. Therefore, the term “voluntary execution, etc. based on a rehabilitation security right” under Article 58(2)2 of the Debtor Rehabilitation Act, which is prohibited when the decision is made to commence rehabilitation procedures, includes an act of exercising a security right (see Supreme Court Decision 2009Da90146, May 26, 201).

An act of exercising a right to collateral security means that an obligee is ultimately entitled to receive reimbursement by exercising the right to collect against a third party obligor. In particular, in a case where the subject matter of a right to collateral security is a monetary claim, there is no need for separate procedures, such as realizing monetary claims to obtain satisfaction of the secured claim. If a mortgagee files a lawsuit against a third party obligor seeking performance of an obligation and a judgment is rendered in favor of the third party, there is no way to prevent the third party obligor from performing the obligation at will to the mortgagee. Therefore, in a case where rehabilitation procedures commence against a debtor who is the assignee of the claim after the transfer of the claim for collateral security, the act of filing a lawsuit seeking payment of the claim against the third party obligor constitutes an act of executing the right to collateral security prohibited by the decision on commencement of rehabilitation procedures. Such interpretation accords with the contents of the Debtor Rehabilitation Act, which provides that the obligee’s individual exercise of rights after the commencement of rehabilitation procedures for efficient rehabilitation of the debtor

B. On the grounds stated in its reasoning, the lower court determined that, in the event rehabilitation procedures commence against a debtor who is a security right holder in the transfer of claims, the mortgagee’s right to claim performance against a third debtor cannot be readily concluded as an act of exercising a security right prohibited by the commencement of rehabilitation procedures, and barring any special circumstance, the third debtor’s right to claim performance is against a mortgagee who is a rehabilitation secured creditor, not a debtor’s custodian, and accordingly, the claimant for the instant additional goods payment

C. However, in light of the aforementioned legal principles and records, it is difficult to accept the judgment of the court below as it is for the following reasons.

An intervenor filed a rehabilitation security right in the rehabilitation procedure of the Commission by asserting that a right to collateral security was established on the instant additional goods payment claim as a creditor of loan by the Commission, and filed an application for intervention by the independent party in the instant case seeking payment of the additional goods payment claim against the defendant who is the garnishee. However, the Intervenor’s above application was filed after the commencement of the rehabilitation procedure of the Commission. Thus, even if the intervenor is a rehabilitation secured creditor of the Commission, the Intervenor’s application for intervention by the independent party was made after the commencement of the rehabilitation procedure of the Commission. Thus, even if the intervenor is a rehabilitation secured creditor of the Commission, the Intervenor’s application for intervention by the independent party is prohibited according to the commencement of the rehabilitation procedure of the Commission as an execution of the right to collateral security included in the “voluntary execution, etc. based on the rehabilitation security right” as provided by Article 58(1)2 of the Debtor Rehabilitation Act (in addition, it was not confirmed whether the intervenor is a rehabilitation secured creditor of the Guro and

D. Nevertheless, the lower court accepted the Intervenor’s claim by deeming that the Intervenor’s application for participation in the instant independent party seeking payment of additional goods based on the transfer security right does not constitute an act of enforcement of the transfer security right prohibited by the decision on commencing rehabilitation procedures. In so determining, the lower court erred by misapprehending the legal doctrine as to the scope of enforcement of the transfer security right prohibited by the decision on commencing rehabilitation procedures under the Debtor Rehabilitation Act. The allegation contained in

However, inasmuch as there is an objection against a rehabilitation security right reported in the rehabilitation procedure by a custodian, etc., the existence and content of the rehabilitation security right is determined in the claim inspection procedure, so that whether the intervenor is a rehabilitation secured creditor of the Rome is determined in the claim inspection procedure under progress between the intervenor and the plaintiff who succeeded to the window, and as a result, it is determined whether the intervenor’s right to collateral security is extinguished or still exists under Article 251 of the Debtor Rehabilitation Act according to the rehabilitation plan of the Street. As long as the rehabilitation plan of the Rome Committee is already authorized and the rehabilitation procedure is terminated, the court below should also examine these issues together.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-gu (Presiding Justice)