[1] Whether a special appeal can be made solely on the ground that the decision violated the law (negative)

[2] The criteria for determining whether there is an inevitable reason or need to revise the reorganization plan approved in the company reorganization procedure under the former Company Reorganization Act

[3] The scope of discretion and criteria for determining whether a reorganization court approves a modified plan which has rejected a claim for protection of rights against the holder of the right to the group who consented to the modified plan

[4] The case holding that there is no special ground for appeal against the decision to amend the reorganization plan, where it is inevitable or necessary to revise the approved reorganization plan under the former Company Reorganization Act, or where the court of reorganization claims against the right holder of the group who consented to the revised reorganization plan, and the decision to approve the revised reorganization plan is justified

[1] Special appeal is permitted only when there is a violation of the Constitution that affected the trial of a decision or order that is not legally entitled to appeal, or when there is a violation of the Constitution that affected the trial of the court, or on the ground that the judgment of whether the order, rule, or disposition, which is the premise of the trial, is unreasonable (Article 449(1) of the Civil Procedure Act). Thus, the ground for a violation of the Act cannot be deemed as a violation of the Constitution that affected the

[2] Whether there is an inevitable reason or need to revise an approved reorganization plan in the company reorganization procedure under the former Company Reorganization Act (repealed by Article 2 of the Addenda of the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), the liquidation court shall, in comparison with the reorganization plan, examine the financial structure and business situation of the reorganization company, financial balance, smooth repayment possibility of the reorganization debt, etc., consider the necessity of financing and new investment of the reorganization company, the current state of domestic and overseas economic situation, etc., and determine by comparing and balancing the opinions and disadvantages of the interested parties affected by the revision of the reorganization plan, and by taking into account the degree of disadvantage to the interested parties due to the maintenance and reorganization of the reorganization company.

[3] In light of the purport of Articles 233(1) and (2), 234(1), and 270(2) 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), whether to approve a revised plan that has been rejected by the reorganization court in a specific case shall be determined at a discretion by taking into account all the circumstances such as the financial structure, business situation, and corporate value of the reorganization company, and further, it is sufficient that the reorganization court selects data which evaluate the value of the reorganization company according to reasonable procedures and methods and grants substantial value to the right holder of the non- consented group based on such data.

[4] The case holding that even if there are errors in the fact-finding or the interpretation and application of the laws and regulations by the court of reorganization as to the fact-finding of the reorganization company's financial structure, business situation, corporate value, etc. and the interpretation and application of the provisions of Articles 270 (2) and 234 (1) of the former Company Reorganization Act, the special appeal against the decision to revise the reorganization plan cannot be made on the ground that each of the provisions of Articles 37 (2) and 23 (1) of the Constitution of the Republic of Korea cannot be made in violation of the principle of proportionality or the principle of proportionality.

[1] Article 449(1) of the Civil Procedure Act / [2] Article 270(1) (see current Article 282(1) and (2) (see current Article 282(2) of the Debtor Rehabilitation and Bankruptcy Act) of the former Company Reorganization Act (Amended by Act No. 7428, Mar. 31, 2005); Article 233(1) and (2) (see current Article 282(2) of the Debtor Rehabilitation and Bankruptcy Act); Article 233(2) of the former Company Reorganization Act (Amended by Act No. 7428, Mar. 31, 2005; Article 243(1) and (2) (see current Article 243(2) of the Debtor Rehabilitation and Bankruptcy Act; Article 234(1) (see current Article 244(1) and (2) of the Debtor Rehabilitation and Bankruptcy Act); Article 238(2) of the Debtor Rehabilitation and Bankruptcy Act (see current Article 28(2) of the Debtor Rehabilitation and Bankruptcy Act); Article 47(2) of the Act

Non-Party 1, Inc. (Law Firm Sew Co., Ltd., Counsel for the plaintiff-appellant-appellee)

international commercial administrator index of the reorganization company

International Commercial Code Co., Ltd. (Law Firm Sejong, Attorneys Im Jong-ho et al., Counsel for the defendant-appellant)

Leewon Co., Ltd. (Law Firm Kim & Lee, Attorneys Gyeong-sung et al., Counsel for the defendant-appellant)

Busan High Court Order 2006Ra153 dated December 29, 2006

All special appeals are dismissed.

1. Determination on the special appeal of the development of Ireland Co., Ltd., a special appeal

A. Special appeal is permitted only on the ground that there is a violation of the Constitution that affected the judgment of the court, or that the determination of whether the order, rule, or disposition, which was the premise of the judgment, is unreasonable (Article 449(1) of the Civil Procedure Act). Thus, the ground that the decision was in violation of the Act alone cannot be deemed as a violation of the Constitution that affected the judgment, and thus, it does not constitute a special appeal.

B. First, as to whether there is an inevitable reason or need to revise a reorganization plan approved in the reorganization procedure under the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Act on Debtor's Recovery and Bankruptcy, Act No. 7428 of March 31, 2005, hereinafter "former Company Reorganization Act"), the reorganization court examines the financial structure and business situation of the reorganization company in comparison with the reorganization plan, the balance between the necessity of the reorganization company's financing and new investment, the current state of domestic and overseas economic situation, and the degree of disadvantage affected by the reorganization plan and the degree of disadvantage to the interested parties. Thus, in a specific case, the determination of whether a specific reorganization plan satisfies the unavoidable reason or necessity to revise the reorganization plan shall be based on fact-finding and evaluation, and how to interpret Article 270 (2) and Article 270 (1) of the former Company Reorganization Act as well as to apply each of the above provisions.

In addition, Articles 270(2) and 233(1) of the former Company Reorganization Act provide that reorganization proceedings or plans are consistent with the provisions of Acts, as a requirement for authorization for a modified plan, and Article 233(2) of the same Act provides that even if reorganization proceedings violate the provisions of Acts, if deemed inappropriate in view of the degree of violation, the current status of the company, and all other circumstances, the court may decide on authorization for a plan. Further, Articles 270(2) and 234(1) of the same Act provide that even if there is an assistance with respect to a modified plan, the reorganization court may ex officio determine and authorize the modified plan for protection of rights of interested parties such as reorganization security holders, reorganization creditors, and stockholders, to coordinate the interests of the reorganization company and to ensure the maintenance and reorganization of the reorganization company. In light of the purport of the above provisions, in a specific case, it is sufficient for the court to determine whether to approve a modified plan with the protection provisions of rights of the reorganization company based on the overall circumstances, and, in determining the substantive value of the reorganization plan, the right holder of the reorganization agreement.

According to the reasoning of the court below's order, the court below held that the modification plan in this case against the International Commercial Corporation of the Reorganization Company (hereinafter "the International Commercial Corporation of the Reorganization Company") satisfies the unavoidable reasons and needs to revise the reorganization plan, and that the Reorganization Court has justified the decision that it determined and approved the protection provision of rights with respect to the modified plan in this case that the modification plan in this case rejected by the consent of the shareholders from the shareholders' group for the benefit of shareholders at KRW 5,00 per share. The special appeal of this case, which is a special appeal against the above decision of the court below, which is a special appeal against the error of the above decision of the court below (hereinafter "special appeal to thisland development"), and the argument of the reasons is merely a dispute that the court below erred in interpreting and applying Articles 270 (2) and (1) and 234 (1) of the former Company Reorganization Act and Article 270 (2) of the Constitution and Article 37 (2) of the Constitution of the Republic of Korea.

C. In light of the records, it is difficult to view that the reorganization court's rejection of the application for modification of the reorganization plan, which is a special appellant, and there is no doubt as to whether the procedure to accept the application for modification of the reorganization plan submitted by the administrator of the international company for the reorganization company, and to refer the modified plan to the deliberation and resolution of the meeting of interested persons is appropriate. However, this is, apart from the fact that it may constitute an error in violation of the laws and regulations concerning the interpretation and application of Article 270 (2) and (1) of the former Company Reorganization Act, the court's rejection decision and the decision to authorize the modification plan of this case, which is separate from the above reasons, are justifiable, and the judgment of the court below which held that the above rejection decision of the reorganization court and the decision to authorize the modification plan of this case, which are separate parties

2. Special appeal by 2 special appellant;

The special appellant 2 did not state the grounds for special appeal in the special complaint, and did not submit the special complaint within the period for submission of a legitimate special complaint.

3. Conclusion

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

Justices Yang Sung-tae (Presiding Justice)