Korea Asset Management Corporation (Law Firm Squa, Attorneys Lee Lee-sik, Counsel for plaintiff-appellant)

Administrator Kim-sik Co., Ltd. (Law Firm Kim, Kim & Lee, Attorney Choi-hoon, Counsel for the defendant-appellant)

may 22, 2006

Seoul Central District Court Decision 2003Gahap41871 Delivered on November 5, 2004

1. Revocation of a judgment of the first instance;

2. The defendant shall pay to the plaintiff 5,987,723.70 U.S. dollars with 5% interest per annum from January 8, 2003 to June 30, 2003 and 20% interest per annum from the next day to the day of full payment.

3. All costs of the lawsuit are borne by the Defendant.

4. Paragraph 2 can be provisionally executed.

1. Claim: It is as stated in Section 2 of the Disposition (the plaintiff sought payment of the original European Union currency 6,221,195.19 U.S. and damages for delay, and partly reduced the claim in the trial).

2. Purport of appeal: To revoke a judgment of the first instance, and to seek a judgment identical to that of the above purport of appeal.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1-1, 2, 3-1, 3-2, 9, 10-1, 2, 12-1, 19, 5-1 through 4-3, 5-2, 5-1 through 9, 11-3 of Eul evidence 1-3, and 11-1 through 16-3.

(a) The relationship between the DaEWO DummbH (hereinafter referred to as “treatment-to-day corporation”) and the Treatment Automobile Co., Ltd. (hereinafter referred to as “Treatment Automobile”);

(1) On October 28, 1994, treatment-based vehicles established a treatment-based corporation (limited liability company) by independently investing 100% in order to secure sales networks in Europe.

(2) In relation to the treatment-based corporation, the treatment-based corporation imported a motor vehicle from, and sold the motor vehicle in, Germany, and then traded the motor vehicle without compensation by, the treatment-based corporation in the form of a request for guarantee repair from the consumers who purchased the motor vehicle. To this end, the treatment-based corporation collected details guaranteed at each sales store for a given period of time and applied for payment to the treatment-based corporation after setting the claim number. The treatment-based corporation approved or reduced the details of the request, notified the treatment-based corporation of the approval or reduction, and paid the repair amount accordingly (No. 8).

(3) On the other hand, treatment Germany ordinarily exported a motor vehicle from the L/C corporation to the local bank (the branch of the compacterzban bank, the Brerzban bank) of the L/C (L/C) which was issued by the local bank (the branch of the L/C-Womer Bank). Treatment Germany sold the imported motor vehicle in Germany and deposited the imported motor vehicle into the above L/C issuing bank. Treatment Germany collected the import price from the above issuing bank after claiming the export price in accordance with the above L/C (the evidence No. 4 No. 1-1 to No. 6-3).

(b) the commencement of bankruptcy proceedings against the German juridical person;

(1) While facing the 1997 1MF financial crisis, the Treatment Group, including the Daewoo Motor, was pressured to make funds due to liquidity shortage, and the som has also experienced serious financial difficulties of the Treatment German corporation. Accordingly, the creditors of the Treatment German corporation applied for the commencement of the bankruptcy proceeding against the Treatment German corporation on November 9, 1999.

(2) 이에 독일 브레멘 구법원은 대우독일법인에 대한 관리인으로 에드가 그뢴다(Edgar Gronda)를 선임하였고, 2000. 2. 1. 대우독일법인에 대한 도산절차를 개시하였다.

(3) The Plaintiff, while participating in the process of restructuring of the Treatment Group, took over obligations owed to local banks by the treatment-based corporation. The Plaintiff participated in the insolvency procedure as a principal creditor of the European Union’s currency 52,810,858.13 against the treatment-based corporation. The Plaintiff also participated in the insolvency procedure by reporting the export price claim against the vehicles exported before the application for commencement of the insolvency procedure, which may directly be claimed against the treatment-based corporation, as a claim for the export price claim against the vehicles exported before the application for commencement of the insolvency procedure.

(c) Commencement of company reorganization procedures for treatment motor vehicles;

On November 10, 200, an application for company reorganization procedure was made by the Incheon District Court for the commencement of company reorganization procedure from the Incheon District Court on the 30th of the same month. At the time of the commencement of company reorganization procedure for the treatment motor vehicle, the Incheon District Court appointed the replacement motor vehicle as the manager of the treatment motor vehicle, and on June 16, 2003, the defendant was newly appointed as the manager of the treatment motor vehicle as the replacement of the manager of the treatment motor vehicle (hereinafter collectively referred to as the “Defendant”).

(d)the occurrence of repair costs claims and provisional attachment against the treatment-based motor vehicles;

(1) 대우독일법인의 관리인으로 선임된 에드가 그뢴다(Edgar Gronda)는 대우자동차에게, 대우독일법인에 대한 도산절차 개시 후 대우자동차로부터 수입하여 판매한 자동차에 대하여 소비자들로부터 보증수리 요청이 있을 경우 이를 수리한 수리대금 채권은 기존의 미지급 수출대금 채권(대우자동차가 독일 브레멘 구법원에 정리채권으로 신고한 채권)과 무관하게 반드시 지급해 줄 것을 요구하였고, 이에 대우자동차는 대우독일법인 관리인의 위와 같은 요구를 거절하여 대우독일법인이 청산으로 가게 될 경우 대우자동차의 유럽 판매망이 붕괴될 것을 우려하여 이를 승낙하였다.

(2) Accordingly, the manager of the treatment-based corporation believed the above payment promise of treatment-based vehicles, and conducted guarantee repairs at the request of the consumers who bought an automobile through each sales store as pre-existing, and then calculated the repair cost and regularly claims the treatment-based automobile. As examined below, the claim for the repair cost arising from the period from April 11, 2000 to September 25, 200 from April 2000 to September 25, 200 is the claim number 3,977,471.46 U.S. credit approved by the treatment-based automobile.

(3) However, the manager of the treatment German corporation did not comply with the promise with the administrator of the treatment German corporation. The manager of the above claim number 20014 to 200046, which was not paid on October 8, 2000, issued a provisional attachment order from the German Lomen's court of Germany with the amount of 3,619,353 equivalent of the claim number 20014 to 20043 from the above claim number 20014 to 20046, as the preserved claim, in order to pay the amount of the automobiles imported and sold after the commencement of the bankruptcy procedure, the manager of the treatment German corporation provisionally seized the 3,630,18 U.S. L/C shipment amount deposited at the bank bmenmen's bank (hereinafter referred to as "1 provisional attachment"; subparagraph 6-1 of subparagraph 6-1).

(4) The administrator of the treatment-based corporation believed, through the first provisional attachment, that the unpaid amount of repair during that period would be recovered, and thereafter, the administrator of the treatment-based corporation continued to claim the payment of the guarantee repair, and accordingly, the treatment-based motor vehicle approved the claim number 20047-20053 from October 16, 2000 to November 2, 200.

(5) On November 30, 200, the company reorganization procedure has been commenced for the treatment motor vehicle as seen above, and the administrator of treatment-based corporation requested the defendant to pay the repair cost for the portion guaranteed by the treatment-based corporation after the commencement of the bankruptcy procedure of treatment-based corporation, and requested the defendant to pay the preservation claim against the first provisional attachment (one serial number 20014~20043) and the shipment price 3,630,188 worth of the first provisional attachment (one serial number 20014~20043) and the German comparp 2ndomer's branch, and to pay the repair cost claim to be incurred after the commencement of the reorganization procedure of treatment-based motor vehicle (Evidence 13).

(6) The defendant also recognized the importance of the German sales network and accepted the proposal of the administrator of the treatment German corporation. The defendant also filed an application with the creditors' conference on January 5, 2001 to 20043 of the first provisional seizure claim number 2004-20057 of the first provisional seizure claim number 2004-20057, which was the part of the guarantee that the bankruptcy procedure commenced, for the repair claim which was approved later, although some of the above (not later than 20053) is the repair claim approved before the commencement of the company reorganization procedure of the treatment German automobile (not later than November 30, 200), the creditors' consultative council and the Incheon District Court, which was the cause of reorganization law, to pay all the repair claims notified prior to the commencement of the company reorganization procedure of the treatment German corporation as public interest claim, with the approval of the creditors' consultative council on January 16, 201 and notified the above details to the administrator upon the approval of No.1600, Jan. 16, 2001.

(7) On January 18, 2001, the administrator of the treatment German corporation, upon such notification, decided to withhold the liquidation of the treatment German corporation by holding a creditors meeting of the treatment German corporation on January 18, 2001 and extend the bankruptcy procedure until March 29, 2001. After that, the defendant may include the treatment German corporation in the negotiations on the sale of treatment German vehicles with GM, and by the end of June, the defendant shall prevent the liquidation measures taken by the administrator of the treatment German corporation and thereby prevent the loss such as the early liquidation from selling of the treatment German corporation in the Western Europe and East Europe due to early liquidation, and notified the manager of the treatment German corporation of February 7, 2001, the amount of USD 6,063,387.21 (on the end of January 2, 2001) which is part of the repair amount payable to the manager of the treatment German corporation on the first priority basis until February 29, 2001 (Evidence evidence 17).

(8) However, as above, the Defendant had failed to implement the notification despite its notification, and the administrator of treatment-based corporation was an additional attachment of 3,548,000 of the L/C shipment price, which had not yet been paid to the G/C shipping price, from September 25, 2000 to January 31, 2001, with the claim number 2004 to 2004 - 2001, which was approved by the Defendant, as the secured claim by the Defendant, as the secured claim, and upon receipt of the provisional attachment decision from the German Brazilmen's court, the German L/C issuer, the issuing bank of the credit, for the payment of the import price, additionally attached 3,548,000 of the L/C shipment price, which had not been paid to the treatment-based motor vehicle (hereinafter referred to as "second provisional attachment; hereinafter referred to as "No. 6-1 of evidence No. 6-1);

(e) filing of lawsuits and requesting legal reconciliation by administrators who are treated German corporations;

(1) On June 5, 2001, the administrator of treatment-based corporation filed a lawsuit against the defendant for the payment of the repair claim equivalent to the amount of 1,200-day provisional attachment claims with the German Brazilmen District Court (Landgrefrefen). On the other hand, the defendant notified the defendant that if the repair claim occurred after the commencement of the bankruptcy procedure of treatment-based corporation is not paid, the treatment-based corporation shall be liquidated. By the second provisional attachment until December 27, 2001, the amount of L/C shipment claim was suspended 7,178,188 U.S. 3,630,188 U.S. total amount of L/C shipment claim 7,630,120-day provisional attachment claim No. 2001-200-day provisional attachment claim No. 201201-2000-day provisional attachment claim No. 201605-day provisional attachment claim No. 2001-2001-day provisional attachment claim No.201

(2) Accordingly, the defendant reviewed the proposal of legal reconciliation by the administrator of treatment-based corporation, and judged that it is reasonable to promote legal reconciliation in order to cover the unpaid amount of repair payment with the unpaid amount of 7,988,146.85 U.S. dollars 7,988,146.85 by the reorganization court on Jan. 6, 2001, as seen earlier, since the administrator of treatment-based corporation claims reimbursement of 7,178,188 U.S. dollars 7,188, which is provisionally attached as above, because there is little possibility of winning the defendant, and in the case of loss, it is reasonable to conclude that it is reasonable to promote legal reconciliation in order to cover the unpaid amount of repair payment with the unpaid amount of 7,178,18 U.S. dollars 7,178,188 U.S. 14, 201, and file an application for approval with the creditors' conference on Dec. 13, 2001

(3) For this, the creditors' consultative council of treatment-based vehicles has approved it on December 24, 2001, US$4,819,203 (the claim number 20014 to 20053) as a reorganization claim with the court's permission for repayment and notified the administrator of treatment-based corporation to repay in the future. Thus, the creditors' consultative council of treatment-based vehicles paid in the amount of USD 6,460,369.20 (7,178,188 U.S.) provisionally attached L/C shipment due to the inevitable repayment and agreed to cover the remaining L/C shipment amount to repay the unpaid repair amount that occurred thereafter. The reorganization court also approved it on December 29, 201 (Evidence evidence 12, No. 7, No. 13-1, No. 13-2, No. 13-2, No. 13-3).

(f) the establishment of legal reconciliation and notification of the appropriation of such administrator as treatment-based;

(1) Accordingly, on January 11, 2002, the administrator of treatment-based corporation and the defendant-based corporation had legal compromise as required by the administrator of treatment-based corporation, and upon the main contents of reconciliation, the principal contents of the settlement shall be paid USD 7,988,146.85 to the treatment-based corporation. The above amount shall be the amount of repair bonds acquired by the treatment-based corporation in 200 and 201. (2) The treatment-based corporation shall not bear the execution under the above paragraph, and the treatment-based corporation shall not bear the interest costs of the credit (3,630,188 U.S. dollars) as of August 30, 200 and the settlement-based amount (200 U.S. dollars) as of December 22, 2000 with respect to the credit (200 U.S.) and the settlement-based 208 U.S. corporation's claim for reimbursement and transfer-based 208 U.S.C.C.

(2) However, after the above statutory reconciliation, no follow-up measures have been taken until February 28, 2002. On March 28, 2002, the administrator of treatment-based corporation sent to the defendant a written notice of mutual liquidation of repair costs claims and claims provisionally attached to the defendant. On September 19, 200, the administrator notified the defendant of the total sum of 8,138,172.36 U.S. ($ 7,146,536.16) and the number of claims filed for repair costs against treatment-based corporation from 20014 to 20057, 2007-208 to 301, 2014 to 1301, 2014 to 2014 to 1301, 2001-1314 to 201, 201-136 to 201, respectively.

(3) The administrator of treatment-based corporation was assigned credit payment claims (unpaid amount 3,548,00) against the compactery bank bmen's vegetables branch of treatment-based vehicles whose payment has been deferred by compulsory execution procedures following the above legal reconciliation and appropriated the above repair payment claims by transfer of credit payment claims (unpaid amount 3,630,188 U.S.) and credit payment claims (unpaid amount 3,548,000 U.S.) against the hybrid bank vemen's vegemen's branch.

(g) Authorization of reorganization programs and takeover of plaintiff's claims against the treatment-based legal entity;

(1) When some of the above legal reconciliation and its objections were recovered from the claims unpaid due to compulsory execution, the administrator of the treatment-based corporation determined to implement the business as a company reorganization procedure (Rehabilitation procedure), prepared the bankruptcy reorganization program and applied for the authorization of the German creditors' court. On September 25, 2002, the above court approved the reorganization program through the creditors' conference, etc.

(2) According to the approved bankruptcy reorganization plan, the plaintiff's claims are classified as first-class claims in consideration of the fact that there was a significant impact on the existence of the Daewoo German Corporation, and the total amount of 21,594,000 shares shall be repaid, and the guarantee repair payment claim to be acquired from the Daewoo German Corporation after the commencement of the bankruptcy procedure can be replaced by transferring the non-execution of the claim to the plaintiff despite the repayment guarantee (the plaintiff waived the remainder of the claim against the Daewoo German Corporation) while the above 78,392,94.03 shares export payment claim of the Daewoo German Corporation with the above 78,392,94.03 shares as the first-class claim against the other claims, and the payment shall not be exempted, but shall be postponed, and the payment shall not be made within the bankruptcy procedure, and after the completion of the bankruptcy procedure, the decision shall be made through negotiations with the German corporation and its additional disposal.

(3) According to the above bankruptcy reorganization plan, the Plaintiff acquired part of the claim number 200131 from November 29, 2001 to October 16, 2002, the claim number 200154, 20201 to 200225 claims approved by the Defendant (Evidence 1 and 10).

(4) The above claim that the Plaintiff acquired is equivalent to the total amount of 5,987,723.70 (hereinafter “instant claim acquired by transfer”), and the Plaintiff, after the institution of the instant lawsuit, notified the Defendant of the transfer of the claim and the transfer of the claim by transfer on June 15, 2004.

2. Determination on the cause of the claim

A. The repair cost claim of the treatment-based corporation and the governing law of the acquisition claim of this case

Since the transfer and acquisition contract of this case between the administrator and the plaintiff, who is the German corporation, the repair price claim and the acquisition contract of this case, which the treatment German corporation owns with respect to the treatment Korean automobile, shall be deemed to fall under the "legal relationship with foreign elements" as stipulated in Article 1 of the Private International Law (Enforcement from July 1, 2001), the applicable law may be a matter of whether it is a Korean corporation or German law.

In this case where treatment German corporation and the plaintiff do not have any scam of transaction after determining the governing law, it is reasonable to regard that the German law, which is most closely related to the above transaction, is the governing law in accordance with Article 26 (2) 1 of the Private International Act, as the form of transaction and the type of transaction of treatment German corporation and the defendant's transaction after determining the governing law, i.e., a series of process such as a request for repair payment and approval and payment of treatment automobile after the guarantee acceptance by the compensation German corporation upon the request of the buyer of the automobile, falls under Article 26 (2) 3 of the Private International Act. Furthermore, the governing law on the transfer and acquisition between the manager and the plaintiff of treatment German corporation shall be deemed to be the German Civil Act in accordance with Article 26 (2) 1 of the Private International Act. Meanwhile, according to Article 398 through 413 of the German Civil Act on the transfer of claims, unlike Korea, the debtor is not required to notify the transferor of the transfer of claims until the time of the transfer.

B. Assignment of the transferee claim of this case

As seen earlier, the Plaintiff received the instant claim for transfer through the bankruptcy reorganization plan of the treatment German legal entity, which was approved by the former medical court (in accordance with the German Civil Code, quasi-legal entity, whether or not the Defendant was aware of the said claim for transfer, as seen in the basic facts, the Defendant also participated in the bankruptcy procedure of the treatment German legal entity, as well as the Nonparty, who was the representative of the treatment German legal entity prior to the commencement of the bankruptcy reorganization procedure, notified the Defendant of the fact that the instant claim for transfer was transferred to the Plaintiff on October 10, 2002, according to the evidence Nos. 2-2, as seen in the basic facts, it is determined that the Defendant was also aware of such fact. Even if the Korean Civil Code becomes the applicable law, the Plaintiff notified the fact that the Plaintiff was entitled to substitute authority granted from the manager of the treatment German legal entity on June 15, 2004, and thus, there is no difference in the outcome of the claim equivalent to the instant claim for transfer proceeds).

C. Period during which the transferee claims of this case were acquired

The claim for the repair payment against the defendant by the administrator of the treatment-based corporation shall be deemed to have reached the due date when the administrator of the treatment-based corporation requests the defendant to pay it or when the defendant approves it at the latest.

D. Sub-committee

Therefore, the Defendant is obliged to pay the Plaintiff the instant assignee’s claim and damages for delay.

3. Judgment on the defendant's assertion

(a) argument that it is a reorganization claim;

The defendant asserts that the plaintiff's claim for the repair price claim is related to the vehicle exported before the company reorganization procedure for the treatment automobile commences, so it is a reorganization claim pursuant to Article 102 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act of March 31, 2005; hereinafter the same shall apply) and therefore, it should be repaid only pursuant to the reorganization procedure. The plaintiff or treatment-based corporation did not report it as a reorganization claim. Thus, the plaintiff or treatment-based corporation asserts that the plaintiff's claim in this case is groundless.

However, as seen in the basic facts, because treatment-based corporations ordinarily included the particulars of the guarantee acceptance at each sale point and request the payment of the treatment-based motor vehicle, it appears that the guarantee acceptance was made in accordance with the order of the claim. In the case of the claim 20131, the claim number of the transfer-based bonds of this case was filed on April 9, 2001 and approved by the defendant on December 29, 2001. The claim of treatment-based corporation was filed on April 29, 2001 as the claim No. 20130, which had been filed on April 29, 2001 and had been approved by the defendant on December 29, 201, that the above 20131 claim of treatment-based corporation was deemed to have been obtained on or after the date of its commencement on or after the date of its commencement on April 20, 201 (Evidence No. 8) and the above claim of treatment-based corporation that had been obtained on or after April 20, 2019, 2001.

Therefore, the above assertion based on the premise that the transfer claim of this case constitutes a reorganization claim is without merit.

(b) Claim for reorganization claim against a claim for indemnity;

The defendant asserts that the above claim is a reorganization claim under Article 110 (1) of the former Company Reorganization Act, on the premise that the claim for the repair price for the treatment-based automobile, which is the object of the acquisition claim of this case, has the nature of the right to constitute composition. However, the above claim cannot be viewed as a claim for the repair bond for treatment-based automobile under Article 110 (1) of the same Act. Thus, the above claim is without merit.

C. Claim of set-off on October 10, 2002

(1) The defendant asserts that, on October 10, 2002, the non-party, the representative of the treatment German corporation, expressed his/her intention of offsetting USD 6,70,692.62 (the claim number 20071-20071-200154 and the claim 2002-201-2014), among the repair claims, the part of the repair claims subject to the transfer claims of this case was extinguished.

(2) According to the statements in Eul evidence Nos. 1-2 and Eul evidence Nos. 1-2-2, the defendant expressed his/her intent of offset by specifying his/her automatic claim and passive claim to the non-party, who was the representative of the treatment-based corporation prior to the commencement of bankruptcy proceedings with respect to the treatment-based corporation on October 10, 202, as above, before the commencement of bankruptcy proceedings, and it can be recognized that the above declaration of intention has reached his/her business non-party.

그러나 상계의 의사표시는 수동채권을 가지고 있는 자에게 하여야 하는 것이고, 수동채권을 가지고 있는 자에 대하여 회사정리절차가 개시되고 그 관리인이 선임되어 있다면 그 당시 수동채권의 관리처분권자인 관리인에게 상계의 의사표시를 하여야 할 것인데, 앞서 본 바와 같이 대우독일법인에 대하여는 1999. 11. 9. 도산절차의 개시가 신청되어 그 관리인으로 에드가 그뢴다(Edgar Gronda)가 선임되었으므로, 피고의 상계 의사표시는 대우독일법인의 관리인 에드가 그뢴다에게 행하여진 것이 아니어서 아무런 효력이 없다고 할 것이다.

(3) In addition, the Defendant’s claim for export price of the above 7,178,364.7 pro rata and Japanese currency 47,596,419 constitutes a claim which cannot be offset because it is already extinguished or subordinate reorganization claim. In other words, the claim for export price of an automobile imported and sold after the commencement of bankruptcy procedures as seen in the facts of the foundation, which is identical to the claim for export price of an automobile, the payment of which is suspended by provisional attachment No. 1 and 2 (total amount 7,178,188) is 0. The above claim for export price of which is 200 days after the execution of provisional attachment No. 200, 2000, which would not affect the Defendant’s claim for new reorganization claim No. 205 days after the execution of provisional attachment No. 30, 200, which would affect the Defendant’s execution of new reorganization claim No. 205 days after the execution of provisional attachment.

On the other hand, Article 38 of the German Bankruptcy Act provides that "Dominent Creditor shall have a right to claim property, based on which the debtor comes into existence at the time of commencement of the bankruptcy procedure," and Article 87 provides that "Dominent Creditor may enforce a claim only in accordance with the provisions regarding the bankruptcy procedure," and it appears that it would have reported all of the claims arising prior to the commencement of the bankruptcy procedure against the Daewoo German legal entity as a reorganization claim. In full view of the above facts, it would be assumed that the Daewoo German legal entity reported to be a reorganization claim against the Daewoo German legal entity on March 5, 1999, it shall not be deemed that treatment is permitted only after the commencement of the bankruptcy procedure as set-off claim against the legal entity under the German Bankruptcy Act."

(4) Therefore, the defendant's above assertion is without merit.

D. Claim of set-off of May 14, 2004

(1) The defendant asserts that even if the first set-off is not effective, since the above export price claim was 78,392,244.03 U.S., which was reported as a reorganization claim in the bankruptcy procedure of the treatment-based corporation, the claim for the transfer of this case was made by delivery of the preparatory document dated May 14, 2004, and the claim for the transfer of this case was all extinguished.

(2) However, as seen earlier, the Defendant had already extinguished the claim of the above 7,178,364.7 out of the claims in the automatic claim.

In addition, in regard to claims of 78,392,244.03, which are different automatic claims, the fact that treatment cars participated in the bankruptcy procedure of treatment-based corporation and reported the export price claim of 78,392,24.03, which has not been paid during that period, as reorganization claims; the bankruptcy reorganization plan approved by the German Brazilmen's court is classified as the first priority claim against other claims; the above claim of 78,392,94.03, which is the first priority claim of treatment cars, is not exempted; the payment is suspended, but the whole amount remains, and the payment is not deferred; however, the fact that treatment is decided through additional negotiations with the treatment-based corporation after the completion of the bankruptcy procedure is based on the facts established.

Article 96 of the German Bankruptcy Act (C. 163 of the former Company Reorganization Act of Korea) provides for cases in which offset is prohibited in the course of bankruptcy under the title of “Prohibition of Set-off”. Paragraph 1(1)1 of the same Article provides that “Where an Do bankruptcy creditor bears any obligation against the bankrupt foundation after the commencement of the insolvency procedure, he/she shall not offset the reorganization claim against his/her automatic claim.” This purport is that a claim existing at the commencement of the bankruptcy procedure (i.e. a reorganization claim) shall be the automatic claim, and a set-off against his/her obligation with respect to the bankrupt property shall not be permitted after the commencement of the bankruptcy procedure. Since the defendant claims a set-off against the German corporation, for which the insolvency procedure has commenced under the German Bankruptcy Act, the issue of whether to allow set-off shall be determined by the German Bankruptcy Act.

Therefore, in accordance with Article 96 (1) 1 of the German Bankruptcy Act, the defendant cannot claim set-off with the claim amounting to the above 78,392,244.03, which is reported as reorganization claim, as the automatic claim.

(3) In this regard, the defendant stipulated that the reorganization procedure commenced in a foreign country shall not be effective with respect to the property located in the Republic of Korea under Article 4 (2) of the former Company Reorganization Act, and that the reorganization procedure commenced in a foreign country shall not have any effect with respect to the individual enforcement prohibition (so-called comprehensive enforcement effect), which is the original effect of the commencement of the reorganization procedure, on the property located in Korea, and Article 4 (3) of the former Company Reorganization Act provides that "any claim entitled to a judicial claim under the Civil Procedure Act, shall be deemed to be located in the Republic of Korea." However, since the above export payment claim is the land for the performance of the obligation, it shall be deemed a domestic property because it is a claim that can be filed with the court in the Republic of Korea under Article 8 of the Civil Procedure Act, and therefore, the effect of individual enforcement prohibition under the bankruptcy procedure, which is proceeding with the German German court, shall not affect the above export payment claim,

However, Article 4 of the former Company Reorganization Act provides that the reorganization procedure, which was commenced against the debtor in a foreign country while declaring the territorial principle of company reorganization procedure, provides that the debtor has no effect on any property (affirmative), which is located in the Republic of Korea, and this means that the creditor in the Republic of Korea may enforce any compulsory execution at any time against the debtor's property in the Republic of Korea without being bound to the effect of the prohibition of individual execution pursuant to the reorganization procedure that was commenced against the debtor in a foreign country. Therefore, as in this case, it is not an issue as to whether it is possible to individually enforce any compulsory execution on the property in the Republic of Korea as in this case, but it is not an issue as to whether the obligation to pay the import price of the automobile, namely, whether the obligation to pay the automobile or the obligation to pay the automobile export price of the treatment-based motor vehicle or the defendant against the defendant

(4) Ultimately, the defendant's above assertion is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 5% per annum from January 8, 2003 to June 30, 2003, the delivery date of a copy of the complaint of this case from January 8, 2003, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim of this case of this case is justified, and it is unfair in the conclusion of the judgment of the court of first instance. Thus, the plaintiff's appeal of this case is revoked and the defendant is ordered to pay the above amount to the defendant. It is so decided as per Disposition.

Judges Dong-dong (Presiding Judge)