[1] Method of appeal against a decision made by the appellate court on the rejection of a modified reorganization plan (=special appeal)

[2] Where the reorganization plan is modified to avoid the whole or part of the reorganization plan due to reduction of business income of the reorganization company because it is impossible or considerably difficult to implement it, the case holding that there is an inevitable reason to modify the reorganization plan under Article 270 (1) of the former Company Reorganization Act and there is a need to modify it

[3] The base point of time for determining the shareholder's voting rights on the revised reorganization plan (=the time at which the revised plan is submitted)

[4] The standard for determining whether the alteration of the right to the reorganization plan is fair and equitable

[5] Meaning of “equal” under Article 229 of the former Company Reorganization Act, and whether there may be differential differences inside the same security (affirmative)

[6] Whether the "calculated of the remaining amount of claims after offsetting" as stated in the revised reorganization plan may be a ground for objection to the approval decision of the revised plan (negative)

[7] Whether the reorganization claim of a non-performing management stockholder of the reorganization company and a person with a special relationship may be modified or exempted from the same content as other reorganization claim (affirmative)

[1] In reorganization cases where an application for commencement of reorganization proceedings has been filed under the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), only special appeal under Article 449 of the Civil Procedure Act shall be permitted against the decision of the appellate court on the approval of the amendment plan, pursuant to Articles 11, 270(3), 237(7), and 8 of the same Act.

[2] Where the reorganization plan is revised to avoid the whole or part of the reorganization plan due to reduction of business income of the reorganization company because it is impossible or considerably difficult to implement it, the case holding that there is an unavoidable reason to modify the reorganization plan under Article 270 (1) of the former Company Reorganization Act (repealed by Article 2 of Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) and there is a need to modify the reorganization plan

[3] In light of the interpretation of Articles 129 and 270 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 a voting right is granted to a shareholder as to the resolution of a modified plan is determined by whether the assets of the reorganization company exceed the liabilities of the reorganization company at the time of the submission of the modified plan. Thus, even if the assets were granted a voting right to the shareholders exceeding the liabilities of the reorganization company at the time of the commencement of domestic reorganization proceedings, and the liabilities exceed the assets due to the aggravation of performance or other unexpected circumstances after the commencement of domestic reorganization proceedings, the voting right

[4] An amendment to a reorganization plan under Article 270 of 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) is established externally after the approval of the original reorganization plan is made at the stage of its implementation. It is not for the claim and stocks before the original reorganization plan is approved retroactively to the time of the original reorganization plan, but is based on the premise that the effect of the approval of the original reorganization plan and the result of its implementation, and the occurrence of obligations through new transactions should be approved at the time of the submission of the original reorganization plan. Thus, whether the alteration of the right to the original reorganization plan is fair and equitable shall be determined based on the remaining right at the time of the alteration plan not before the approval of the original

[5] The equality under Article 229 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) refers not to equality within the formal meaning, but to equality that does not go against the concept of fairness and equity, so the inside of the same security may also be differentiated within the reasonable scope in consideration of the difference in the nature of the right, etc.

[6] The existence and amount of the disputed automatic claim cannot be unilaterally determined by the administrator during the process of implementing the original reorganization plan, and the remaining reorganization claim amount cannot be determined by making a decision after offsetting the premise of changing the right under the revised plan, which is the premise of changing the right under the revised plan. Even if such entry is made, it is not itself the content of changing the right, but it is an object of changing the right, and thus it does not affect the alteration plan. Therefore, it cannot be said that the calculation of the remaining claim amount is unreasonable after offsetting the set-off stated in the revised plan.

[7] A person who has a special relationship with a insolvent management stockholder of the reorganization company and a person in a special relationship under Article 221(4) 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) and Article 42 of the former Rules on Company Reorganization, etc. (repealed by Article 2002 of the Addenda to the Rules on Debtor Rehabilitation and Bankruptcy, Act No. 2002 of March 23, 2006) shall be deemed to be in a position to bear liability for damages to the reorganization company and to supplement the decreased capital. Thus, in changing the contents of reorganization claim held against the reorganization company in the reorganization plan, the reorganization plan shall be deemed to be in a position to supplement the reorganization claim, taking into account various circumstances revealed in the reorganization proceedings such as the relationship between the reorganization creditor and the reorganization company, the cause and degree of excess of the company's obligation to the reorganization company, and the extent of the cause of the insolvent stockholders and related parties.

[1] Article 8 (see current Article 3 of the Debtor Reorganization Act), Article 11 (see current Article 13 of the Debtor Rehabilitation and Bankruptcy Act), Article 237 (7) of the Debtor Rehabilitation and Bankruptcy Act (see current Article 247 (7) of the Debtor Rehabilitation and Bankruptcy Act), Article 282 (3) of the Debtor Rehabilitation and Bankruptcy Act (see current Article 282 (3) of the Debtor Rehabilitation and Bankruptcy Act), Article 49 of the Civil Procedure Act / [2] Article 270 of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 278 of the Debtor Rehabilitation and Bankruptcy Act, Article 270 of the former Debtor Rehabilitation and Bankruptcy Act, Article 278 of the former Debtor Rehabilitation and Bankruptcy Act, Article 270 of the latter Debtor Rehabilitation and Bankruptcy Act, Article 270 of the latter Debtor Rehabilitation and Bankruptcy Act (see current Article 278 of the former Debtor Rehabilitation and Bankruptcy Act, Article 270 of the latter Debtor Rehabilitation and Bankruptcy Act, Article 278 of the latter Debtor Rehabilitation and Bankruptcy Act)

[1] Supreme Court Order 90Ma954 dated May 28, 1991 (Gong1991, 1728) / [5/7] Supreme Court Order 2005Da60 dated Jan. 20, 2006 (Gong2006Sang, 386) / [5] Supreme Court Order 99Da35 Decided Jan. 5, 2000 (Gong2000Sang, 539) 202Da121 dated Dec. 10, 2004 (Gong2005Sang, 227)

[Plaintiff-Appellant] 1 and 85 others (Attorney Cho Yong-seok et al., Counsel for plaintiff-appellant-appellant)

New Co., Ltd. (Law Firm Spah, Attorneys Kim Byung-in et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2004Ra84 dated May 1, 2004

All special appeals are dismissed.

The grounds for special appeal are examined.

1. Method of appeal;

With respect to this case for which an application for commencement of reorganization proceedings has been made under the Company Reorganization Act, the Company Reorganization Act shall apply pursuant to Article 2 and Article 3 of the Addenda of the Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; Act No. 7428, Apr. 1, 2006); and with respect to the decision of the appellate court on the approval of the amendment plan, only a special appeal under Article 49 of the Civil Procedure Act shall be permitted pursuant to Articles 11, 270(3), 237(7), and 8 of the Company Reorganization Act (see Supreme Court Order 90Ma954, May 28, 1991, etc.); and there is no reason to believe that the reappeal is to be permitted, and the reappeal by some parties, such as Gangwon Construction Co., Ltd., Ltd., shall be deemed a special appeal.

2. Grounds for change of reorganization programs.

The court below determined that the reorganization company has an inevitable reason to modify the reorganization plan under Article 270 (1) of the Company Reorganization Act on the premise that the "inevitable reason" includes a sudden change in the economic situation, reduction of the operating income, and low sales performance, and that the "necessary to modify the reorganization plan" refers to a case where the whole or part of the reorganization plan is impossible or considerably difficult, and if the plan is modified, it may avoid such situation. The reorganization company failed to repay 50% of the principal amount of the commercial credit to be repaid under the reorganization plan in 2002 due to a decrease in the operating income, and there is a need to repay more than 30 billion won out of the principal amount of the commercial credit to be repaid under the reorganization plan in 203, and there is a need to repay more than the principal amount of the reorganization bond and the interest payment due to the reorganization plan from 203, but it is difficult to expect a normal debt repayment in consideration of the business performance and financial flow of the reorganization company, and thus, the reorganization company has changed the reorganization plan to be paid in consideration.

In light of relevant statutes and records, the above fact-finding and determination by the court below are justifiable. The court below's order did not err by violating the Constitution that affected the judgment, or by misapprehending the legal principles as to special appeal under Article 449 (1) of the Civil Procedure Act.

3. Procedures for adopting a modified plan;

A. As to the assertion on the notification of the date of the meeting of interested persons and the application of the agreement clause

The court below rejected the allegation that the decision to designate the date in this case was made 12 days prior to the date of the assembly, and that there was the consent of the reorganization creditor meeting meeting meeting meeting meeting meeting meeting that satisfies the requirements for the approval of the modified plan, and that the resolution was not made in good faith and fair manner is not reasonable, and it is difficult to find the materials to calculate the number of the resolution by giving consent to the reorganization creditor who is absent from the meeting meeting of interested parties, and that the reorganization court does not require the person who consented to the original reorganization plan to notify the contents of the provision of Article 270 (2) of the Company Reorganization Act as to the person who consented to the original reorganization plan under the Company Reorganization Act, so it is not erroneous in calculating voting rights due to the agreement, or in failing to enter the contents of the agreement in the guide of the assembly, it is not reasonable.

In light of the relevant statutes and records, the fact-finding and determination by the court below are justifiable. The court below did not err by misapprehending the Constitution that affected the judgment, or by misapprehending the legal principles as to special appeal under Article 449(1) of the Civil Procedure Act.

B. As to the assertion on the appraisal of the company's assets and the recognition of shareholders' voting rights

In light of the records, at the time of the preparation of the amendment plan of this case, the evaluation of most real estate owned by the reorganization company is requested to the appraisal agency at the two places, and the average amount of the appraised value (hereinafter “the appraised value of this case”) is based on the estimation of the purpose of the reorganization plan, and the evaluation value of the balance sheet attached to the amendment plan of this case and other property is determined as a result of the determination of the existence of voting rights by the shareholders.

Although the court below's reasoning is somewhat inappropriate, it is justified in its conclusion that the reorganization court's measure that excluded shareholders' voting rights at the meeting of interested persons for excess of the reorganization company's liabilities is legitimate. The court below's order did not err by violating the Constitution which affected the trial and by misapprehending the legal principles as to special appeal under Article 449 (1) of the Civil Procedure Act.

In light of the interpretation of Articles 129 and 270 of the Company Reorganization Act, whether a voting right is granted to a shareholder as to the resolution of a modified plan is determined by whether the assets of the reorganization company exceed the liabilities of the reorganization company at the time of the submission of the modified plan. Thus, even though the assets were granted a voting right to a shareholder in excess of the liabilities at the time of the commencement of domestic reorganization proceedings, and later the liabilities exceed the assets of the reorganization company at the time of the submission of the modified plan, as long as the liabilities of the reorganization company exceed the assets of the reorganization company at the time of the submission of the modified plan,

4. Details of the modified plan;

A. As to the assertion of violation of equality principles between reorganization creditors, reorganization security holders, and commercial reorganization creditors

The modification of the reorganization plan under Article 270 of the Company Reorganization Act is once the original reorganization plan is approved, established externally, and actually implemented, and is conducted at the stage of its implementation, and it is based on the premise that the effect of the approval of the original reorganization plan, the result of its implementation, and the occurrence of obligations through new transactions should be approved at the time of the submission of the original reorganization plan, not on the bonds and stocks before the original reorganization plan is approved retroactively to the time of the original reorganization plan. Thus, whether the alteration of rights is fair and equitable should be determined on the basis of the remaining rights at the time of the alteration plan not before the approval of the original reorganization

According to the records, the original reorganization plan provides for the repayment period of commercial transaction claims more rapidly than other types of reorganization claims, and as a result, the commercial creditors at the time of the implementation of the amendment plan in this case have already received considerable parts of the repayment, but there was no unlawful repayment without the original reorganization plan. Thus, in comparison with the repayment conditions prescribed within the modified plan, the conditions of repayment cannot be deemed unlawful on the basis of the remaining claims at the time of the submission of the modified plan. In comparison with the repayment conditions prescribed within the modified plan, it is difficult to find out that the contents of the reorganization plan are contrary to the fair and equitable differential principle or the principle of equality. Thus, there is no violation of the Constitution that affected the judgment of the reorganization court or any other special ground for special appeal as stipulated in Article 449(1) of the Civil Procedure Act.

B. As to the assertion regarding violation of the principle of equality between the lease deposit security holder and the National Housing Fund security holder

The equality under Article 229 of the Company Reorganization Act refers not to equality in the formal meaning, but to substantive equality that does not go against the concept of fairness and equity, and thus, inside the same security may be differentiated within a reasonable scope in consideration of the difference in the nature of rights, etc. (see Supreme Court Order 9Da35, Jan. 5, 200, etc.).

According to the records, in light of the fact that the expiry date of the loan of the National Housing Fund of this case is September 29, 2027 and the interest rate is only 3%, and that in the modified plan, the repayment ratio of other security holders, including lease security holders, and reorganization creditors, such as lease security holders, may lower the repayment ratio of the National Housing Fund in lump sum as other financial institution securities, such as M&A security of the reorganization company, if the National Housing Fund determines that the repayment of the loan of this case is made in lump sum as other financial institution securities of the reorganization company, the repayment ratio of other reorganization security holders and reorganization creditors, such as lease security holders, etc., would be lower, the decision of the court below is justifiable in holding that the modified plan that maintains the provisions of the National Housing Fund reorganization plan that did not modify

The order of the court below does not contain any violation of the Constitution that affected the judgment, or any violation of laws that support the special grounds for appeal under Article 449(1) of the Civil Procedure Act.

C. As to the assertion regarding the application of the current discount rate for the security for lease deposit

In accordance with the alteration plan, the court below determined that the reorganization company M&A shall preferentially distribute the amount equivalent to the liquidation value calculated by applying the average bid rate for each use of the court auction from January 1, 2003 to October 31, 2003 with respect to the appraisal value of the secured assets in this case and the liquidation value calculated by applying the appraisal price for each region from January 1, 2003 to October 31, 203, but it shall apply the discount rate of 10.84% as of December 31, 2003 with respect to the principal and interest of the secured assets in the original reorganization plan to the extent of the discounted amount. Thus, the court below determined that the alteration plan changed the reorganization plan to pay each year in order under the original reorganization plan to make a repayment in lump sum within the extent of the present value at which a certain discount rate is applied, and that it may not be unreasonable to make a repayment within the current value as of December 14, 2002 to the lease security after the conversion of the leased assets into the present value.

In light of the records, the above determination by the court below is justifiable. The order of the court below did not contain any violation of the Constitution that affected the trial, or any error of law that can recognize the special grounds for appeal under Article 449(1) of the Civil Procedure Act

D. As to the remaining arguments by the security holders and reorganization creditors of the lease deposit

The court below rejected the assertion by the reorganization creditor and lease security holder as unjust enrichment on the ground that the reorganization plan goes against equity due to the termination of the lease relationship and the repayment ratio of the lease security holders and reorganization creditors subject to the alteration plan when compared with the lessee who recovered the lease deposit before the approval of the alteration plan was granted, and that the lease security holder who completed the registration of the establishment of a right of lease cannot be deemed to have the right of preferential sale, and that there is no obligation to specify the provision of the right of preferential sale that does not exist in the original reorganization plan, even though there is no provision on the right of preferential sale in the right of preferential sale in the alteration plan, and that even if the object was re-leased and paid the lease deposit after the repayment of the existing lease deposit was made under the conditions set by the alteration plan, the reorganization company cannot be deemed to be unjust enrichment, on the ground that the lease security holder and lease security holder cannot be deemed to have been unjust enrichment.

In light of the records, the above determination by the court below is just and acceptable, and no other material exists to deem that the repayment condition of the modified plan of this case contravenes the principle of fairness and equity. The order of the court below did not err in the misapprehension of the Constitution that affected the trial and in the misapprehension of the principle of special appeal under Article 49(1) of the Civil Procedure Act.

E. As to the assertion on the illegality of changing the right premised on a set-off

According to the records, the original reorganization plan of this case provides that, with respect to reorganization claims of related companies, only 90% of the principal amount of the bonds shall be repaid in installments, and that, with respect to the reorganization claims of the reorganization company and the reorganization company, two companies (this three companies referred to as the "merged company") which shall be merged into the reorganization company and the reorganization company shall be subject to repayment after offsetting the claims held by the merged companies against the principal amount of the reorganization claims against the merged companies. However, there is no provision regarding the type and amount of the automatic bonds, but there is no change of rights similar to those of other reorganization creditors on the premise that the remaining reorganization claims after offsetting the reorganization claims against the merged companies of the related company against the merged companies shall be the total amount of 228,932,831, and the related companies have been on the premise that the existence and amount of the automatic claims of the reorganization company are equal to those of other reorganization creditors.

The manager of the reorganization company cannot, in principle, repay the reorganization claim or set off it as a passive claim (see Article 112 of the Company Reorganization Act), and the above set-off clause of the original reorganization plan has the meaning of resolving such restrictions. However, the existence and amount of the disputed automatic claim cannot be unilaterally determined by the custodian in the course of executing the original reorganization plan, and the remaining amount of the reorganization claim cannot be determined by entering and resolving it within the modified plan after setting-off which is the premise for changing the right under the modified plan. Even if such entry is made, it is not the content of the alteration of the right, but it is not the subject of the alteration of the right, and it does not affect the effect of the modified plan (see Article 242 of the Company Reorganization Act). Thus, it cannot be said that the calculation of the remaining amount of the claim after setting-off as stated in the modified plan is unfair.

However, inasmuch as the reorganization claim of the special appellant is legally reported, investigated, and determined, and reflected in the original reorganization plan, and is stated in the reorganization creditor list under the original reorganization plan, the validity of the part concerning the alteration of the right to the reorganization claim of the reorganization claim of this case, i.e., the current value conversion method, the distribution ratio of repayment funds, and partial exemption, etc., among the reorganization claim of this case, is naturally binding on the special appellant, and the alteration of the right to the reorganization claim of the affiliated company under the revised reorganization plan of this case does not appear to be disadvantageous compared to

Although the reasoning of the lower court is somewhat insufficient, it is justifiable to have rejected the argument of the special appellant, who is a related company. The lower court’s order did not err by misapprehending the Constitution that affected the trial, or by misapprehending the legal principles regarding special appeal under Article 449(1) of the Civil Procedure Act.

F. As to the assertion on the exemption clause from the right to indemnity of a person with special interest such as major shareholders

A non-performing stockholder of the reorganization company and a person in a special relationship under Article 42 of the Regulations, such as Article 221 (4) of the Company Reorganization Act, and Article 42 of the Rules, shall be deemed to be in a position to supplement the decreased capital and assume liability to the reorganization company. Thus, when the reorganization plan changes the contents of the reorganization claim held against the reorganization company, it shall be deemed that the reorganization plan is in a position to supplement such decreased capital, taking into account all the circumstances, such as the relationship between the reorganization creditor and the reorganization company, the cause of such reorganization claim, the cause of such reorganization claim, the cause of the reorganization company's debts, the situation and degree of excess of obligations of the reorganization company, the degree of provision of cause to the reorganization creditor, etc. of the non-performing stockholders and a person specially related to the reorganization company, the rights of the reorganization creditor in a special relationship, different from the contents of the reorganization claim, may be changed, and the reorganization claim may be exempted, and it does not violate the substantial equality provided for in Article 233 (1) or 229 of the Company Reorganization Act (see, etc.).

In this case, the circumstances cited by the court below are that the execution of the original reorganization plan is impossible due to the shortage of financial resources for repayment, and other reorganization creditors are not repaid more than 20% of the principal value of the bonds. Considering the fact that the liabilities of the reorganization company at the time of approval of alteration plan as seen earlier exceed the assets of the reorganization company, and other circumstances in the reorganization proceedings as shown in the records, the court below determined that the alteration plan of this case, which determined to be exempted from all the claims of the shareholders of the reorganization company or special appellants related to such shareholders, does not go against the fairness and fairness principle under Article 233 (1) 2 of the Company Reorganization Act, is sufficiently acceptable in light of the above legal principles.

The order of the court below does not contain any violation of the Constitution that affected the judgment, or any violation of laws that support the special grounds for appeal under Article 449(1) of the Civil Procedure Act.

G. As to the assertion on the retirement of shares

In the instant alteration plan, the right to consolidate the existing 60 shares of KRW 5,000 with the face value of KRW 5,000 with the new shares of KRW 5,00,000, is changed. As seen earlier, the measure of the court that authorized the instant alteration plan, which stipulates the conditions on the said reduction of capital, is justifiable in light of the following: (a) the liabilities of the reorganization company were exceeded its assets at the time of approval of the alteration plan; (b) it was impossible to implement the original reorganization plan due to the lack of financial resources for repayment; (c) there was a need to inevitably reduce the rights; and (d) other reorganization creditors are not paid more than 20% of the amount of claims; and (e) the shares of the shareholders who were converted into investment by the original reorganization plan are combined at the same ratio.

The order of the court below does not contain any violation of the Constitution that affected the judgment, or any violation of laws that support the special grounds for appeal under Article 449(1) of the Civil Procedure Act.

5. Conclusion

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

[Attachment] Special Appellants and List of Representatives: Omitted

Justices Shin Hyun-chul (Presiding Justice)