[1] In case where a custodian exercises the avoidance power in a lawsuit for the confirmation of a security against which a creditor raises an objection against a claim reported as a security, whether it can be deemed that the claim to be restored is included in the original report of claim (negative)

[2] In a case where a creditor becomes unable to exercise a claim which is to be restored due to the exercise of the avoidance power after the meeting of the interested parties for the examination of the reorganization program is completed, whether the creditor may claim as a priority claim under Article 208 subparag. 6 of the Company Reorganization Act for the amount that can be repaid if the above claim is reported (affirmative)

[1] Since the receiver of the reorganization company raises an objection against the claims reported as security on the date of investigation, in case where the receiver exercises the right to set aside under the Company Reorganization Act in a lawsuit filed by the creditor for confirmation of security, it cannot be said that the claims to be restored due to the exercise of the right to set aside are included in the original claims report.

[2] The report on the completion of reorganization claims or securities under Article 127 (3) of the Company Reorganization Act shall not be made after the completion of the assembly of interested parties for the examination of the reorganization plan. Thus, in case where the avoidance power is exercised only after the completion of the assembly of interested parties, a creditor cannot exercise his right because he could not make a subsequent completion report as a reorganization creditor or security holder, but the reorganization company obtains unjust profits due to a creditor's loss. However, since a reorganization company obtains unjust profits due to a creditor's loss, a creditor may make a claim for unjust profits arising after the commencement of the reorganization procedure as an unjust profits arising from a claim to be restored under Article 208 (6) of the Company Reorganization Act, which would have occurred after the reorganization procedure

[1] Articles 89 and 147 of the Company Reorganization Act / [2] Articles 89, 127 (3), and 208 subparagraph 6 of the Company Reorganization Act

[2] Supreme Court Decision 2002Da36235 decided Jan. 10, 2003 (Gong2003Sang, 619) Supreme Court Decision 2000Da50275 decided Feb. 28, 2003 (Gong2003Sang, 909)

[Defendant-Appellant] Jinjin Co., Ltd. (Attorney Kim Hun-hwan, Counsel for defendant-appellant

The number of members of the reorganization company, a CD-style Corporation (formerly: Mine Construction Corporation)

Seoul High Court Decision 2000Na41426 delivered on June 5, 2001

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the assertion of violation of the rules of evidence and incomplete hearing

In full view of the selected evidence, the court below recognized the fact that the plaintiff was issued a promissory note amounting to KRW 748,00,000 at face value to the Sungwon Co., Ltd. prior to reorganization (the Sungwon Co., Ltd. was absorbed into Sungwon Co., Ltd. on Jan. 8, 1999 upon the commencement order of the company reorganization procedure on September 3, 199, and the Sungwon Co., Ltd. changed its trade name on September 17, 199, and the Sungwon Co., Ltd. changed its name to Gwangju Construction Co., Ltd.) and delivered a promissory note amounting to KRW 757,05,850 at face value to pay the price from the above company. In light of the records, the court below's fact-finding is acceptable, and there is no error in the misapprehension of the rules of evidence as otherwise alleged in the ground of appeal.

2. As to the assertion of misapprehension of legal principle

Since the receiver of the reorganization company raises an objection on the date of investigation against the claims reported as security, in case where the receiver exercises the avoidance power under the Company Reorganization Act in a lawsuit filed by the creditor for confirmation of security, it cannot be said that the claim to be restored due to the exercise of avoidance power is included in the contents of the original claim declaration.

The court below acknowledged the plaintiff's claim for confirmation of reorganization claim on the ground that the plaintiff's claim for confirmation of reorganization claim included an intention to make a preliminary report on the reorganization claim to be restored by the exercise of the avoidance power asserted only within the litigation proceedings in this case. The ground for appeal pointing this out has merit, which affected the conclusion of the judgment by misapprehending the effect of the avoidance power and the legal principles on the report of claim under the company reorganization procedure. Thus, since the report on completion of reorganization claim or security under Article 127 (3) of the Company Reorganization Act cannot be completed after the assembly of interested parties for the examination of the reorganization program, in case where the avoidance power is exercised only after the completion of the assembly of interested parties as in this case, the plaintiff cannot be allowed to make a subsequent completion report as a reorganization creditor or security holder, but in this case, the reorganization company obtains an unfair benefit from the plaintiff's loss, and thus, the plaintiff's claim for confirmation of reorganization claim was made after the reorganization procedure was reported as a reorganization claim or security and can be claimed as a priority claim under Article 208 subparagraph 6 of the Company Reorganization Act (see, 205, 200.35).

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)