207Na2830 Objection

§ 4. Action taken by the receiver of the corporation

subsidiary corporation

Mapo City00 Dong

대표이사 신◇○

Law Firm Gyeongsan, Counsel for the plaintiff-appellant

[Defendant-Appellee]

Korea Labor Welfare Corporation

Seoul Yeongdeungpo-gu00000 Ghana

0 0 - - - at the place of service.

representative director and administrative agencies

Long-term surrender of legal representative;

Gwangju District Court Decision 2006Gahap1133 decided May 22, 2007

March 11, 2009

April 24, 2009

1.The judgment of the first instance shall be modified as follows:

A. Defendant’s Plaintiff:

(1) Compulsory execution based on the payment order No. 2001j596 dated February 22, 2001 by the Gwangju District Court wooden Branch:

(2) The compulsory execution based on the payment order No. 2001j901 dated March 27, 2001 by the Gwangju District Court shall not exceed the amount equivalent to 25% per annum for KRW 288,863,181 and 160,231,250 among them from August 12, 2006 to the date of full payment;

(3) On June 4, 2001, 2001, 2001, 2001, 295, 633 won and 2,742,460 won and 25% interest per annum from August 12, 2006 to the date of full payment, compulsory execution based on the payment order of the Gwangju District Court Order No. 2001, 1465.

Each such ruling shall be dismissed.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's Gwangju District Court Branch Branch on February 22, 2001 for the defendant

The compulsory execution based on the payment order No. 2001 tea 596, the payment order No. 2001 tea 901 dated March 27, 2001, and the payment order No. 2001 dated June 4, 2001, respectively, shall be dismissed.

1. Basic facts

가. ♥000 중공업 주식회사에 대하여 2001. 1. 30. 광주지방법원에서 회사정리절 차개시결정이 내려지자 , 피고는 위 회사의 근로자 52명에게 최종 3개월분 임금과 3년 분 퇴직금을 지급한 다음, 위 근로자들을 대위하여 위 주식회사를 상대로 두 차례에 걸쳐 구상금 채권 지급명령을 신청하였고, 그에 따라 아래와 같은 각 지급명령이 발하 여졌고, 이는 그 무렵 확정되었다.

○ Payment Order No. 2001 tea901 dated March 27, 2001: Wages and retirement allowances

160,231,250 won, as well as 5% per annum from March 17, 2001 to March 30, 2001, and the following:

The damages for delay and the expenses for demand procedure calculated at the rate of 25% per annum from the date of full payment to the date of full payment.

367,520 won

○ Payment Order No. 2001 tea 1465 dated June 4, 2001: Wages, Retirement Allowance No. 2,742,460 won

For this, 5% per annum from May 7, 2001 to June 13, 2001 and from the next day to the day of full payment.

For up to 25% per annum, damages for delay and expenses for demand procedure 15,840 won per annum.

나. ♤☆☆☆기계 주식회사가 2001. 2. 1. 노동부장관으로부터 도산 등 사실인정 결 정을 받게 되자, 피고는 위 회사의 근로자 35명에게 최종 3개월분 임금과 3년분 퇴직 금을 지급한 다음, 위 근로자들을 대위하여 위 회사를 상대로 구상금 채권 지급명령을 신청하였고 , 그에 따라 아래와 같은 지급명령이 발하여졌고, 이는 그 무렵 확정되었으 며 , 한편 O & & & & & & & 주식회사( 이하 '이 사건 정리회사' 라 한다)는 2003. 4 . 8. ♤☆☆☆기계 주식회사를 흡수 · 합병함으로써 그 권리 · 의무를 포괄승계하였다.

○ Payment Order No. 2001 tea596 dated February 22, 2001: Wages and retirement allowances

92,162,520 won and 86,855,860 won among them shall be 5,306,660 won from February 17, 2001

shall be 5% per annum from February 19, 2001 to February 26, 2001, and the day from the next day to the day of full payment.

For up to 25% per annum, damages for delay and expenses for demand procedure 214,320 won, calculated by each ratio of 25% per annum.

다. 광주지방법원은 2002. 4. 1. 2002회1,2호로 이 사건 정리회사에 대한 정리계획 을 인가하는 결정을 하였고, 2007. 5. 9. 위 정리회사에 관한 정리절차를 종결하였다. 이후 이 사건 정리회사의 사업경영과 재산관리 · 처분권한을 승계한 ♥0①0중공업 주 식회사는 같은 달 31. '주식회사 ♤♤♤'으로 상호변경등기를 마치고, 위 정리회사의 관리인으로부터 이 사건 소송을 수계하였다.

D. From June 9, 2003 to August 30, 2005, the Defendant received reimbursement of KRW 45,663,490 in total on several occasions from the administrator of the instant reorganization company. Furthermore, the Defendant received the seizure and collection order of the claims against the various additional tax refunds that the said reorganization company would receive from the Republic of Korea on April 21, 2006, under the above order of payment by each of the above branch offices. The Defendant collected KRW 73,945,730 on May 10, 2006, and KRW 185,503,460 on August 11, 2006, respectively.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 6 (including each number; hereinafter the same shall apply), Eul evidence 5 through 9, each of the facts in this court, the purport of the whole pleadings

2. The parties' arguments and issues

In the company reorganization procedure, even if the wage claim is a public-interest claim, the delayed damages shall be regarded as the "after-order reorganization claim under Article 121 (1) 2 of the former Company Reorganization Act (amended by Act No. 7428 of March 31, 2005; hereinafter referred to as the "former Company Reorganization Act"). In addition, the defendant did not report the reorganization claim concerning the damages for delay of wage claim, as well as the defendant did not report the reorganization claim concerning the damages for delay of wage claim, according to the reorganization plan for the above reorganization company, it was decided to exempt the total amount of interest on the public-interest claim, and the defendant also did not seek damages for delay due to each payment order as above, and the defendant did not recover the above damages for delay from the total payment order to the defendant and should not claim damages for delay from the total payment order to the above 305,112,680 won (=465,4390,7505 won) and the above damages for delay should not be paid separately to the defendant.

Therefore, the issues of this case are ① whether the wage claim against the reorganization company is a public-interest claim or not, ② whether the defendant is to collect only the principal claim against the reorganization company, and ② whether the defendant is to exempt the interest and damages for delay from paying.

3. Determination

A. Whether damages for delay on wage claims are priority claims

The Defendant’s right to wages and retirement allowances held by the Defendant for ○○ & & & & & & & & & & & & & & constitutes public-interest claims under Article 208 subparag. 10 of the former Company Reorganization Act. It is reasonable to view that the right to claim damages arising from the delay of performance (damage for delay) and the right to claim reimbursement of expenses arising from litigation proceedings to enforce the performance thereof is also subject to public-interest claims as “expenses arising from the business and management and disposal of the assets of the company after the commencement of reorganization” under Article 208 subparag. 2 of the same Act (see Supreme Court Decision 2002Da53865, Nov. 12, 2004).

Meanwhile, Article 121 (1) 2 of the former Company Reorganization Act provides that "compensation and penalty due to non-performance after the commencement of reorganization proceedings" shall be subordinate reorganization claims. However, in a case where there is a relationship between compensation for damage or payment of damages to the other party or payment of penalty on a regular basis due to the failure of the company prior to the commencement of reorganization proceedings, it refers to the right to request compensation and penalty arising after the commencement of reorganization proceedings (the above Supreme Court decision). Such right to claim compensation for damage and penalty shall be deemed a reorganization claim which has been formed with basic legal relations that may cause the claim in advance prior to the commencement of reorganization proceedings, and it shall be deemed that the claim after the commencement of reorganization proceedings is effective more than the general reorganization claim in consideration of the circumstances in which the claim has already occurred, but it shall not be deemed that the reorganization company's manager neglects the repayment of public-interest claims and shall not be deemed the order of reorganization claims after the claim for compensation arising therefrom.

(b)whether damages for delay are exempted;

Under the former Company Reorganization Act, a public-interest claim shall be satisfied at any time without resorting to reorganization proceedings (Article 209 of the same Act). Even if the reorganization plan provides for reasonable provisions concerning the amount to be met in the future with respect to a public-interest claim (Articles 211 and 216 of the same Act), the provisions affecting the rights of public-interest creditors, such as the deferment of payment period or reduction and exemption of claims, cannot be prescribed. Even if the reorganization plan provides for such provisions, the effect of the alteration of a right shall not extend to a public-interest creditor unless the public-interest creditor gives consent thereto (see Supreme Court Order 2005Da60, Jan. 20, 2006).

According to the evidence Nos. 3-2 and 7-10 of the above No. 3-2 and the purport of the argument, since the reorganization company's 3-2 and 5-10 of the above reorganization plan provides that "additional taxes, additional dues and interest accrued after authorization of the reorganization plan on public-interest bonds and tax claims shall be exempted in full", the defendant sent a payment notice to the above reorganization company on April 17, 2003 and stated only the amount of principal determined by the above payment order on May 16, 2003, and the above reorganization company did not issue the above payment order to the defendant for 0-100,000 won to the above reorganization order to the effect that "the above payment order was received in six installments until October 31, 204," and the defendant did not issue the above payment order to the above reorganization order to the effect that the above payment order was received in accordance with the above 10-100,000 won or more of the above payment order."

(c) The remaining amount of obligations arising from each payment order above;

(1) Unless otherwise agreed by the parties, appropriation of performance must be made in the order of expenses, interest, and principal (Article 479 of the Civil Act). In the case where all the due date as indicated in each of the above payment orders have arrived, and where all the due date for performance can not be high, expenses, interest, and principal are appropriated first for the due date (Article 477 subparag. 3 of the Civil Act).

(2) On August 30, 2005, the application for the appropriation of the obligation on August 30, 2005

(A) The remaining amount of the obligation before appropriation of the performance as of August 30, 2005 shall be the principal amounting to KRW 92,162,520,520, and damages for delay as of August 30, 2005: ① (1) 92,85,860, 103,840, and 647 [Attachment 86,85,860 x 0.05 x 2/365 x 192,162,520 x 058/3650 x 3650 x 465 x 250 x 214,320)], demand expenses 214,320, and ② 201, 201, 2001, 17, 329, 103, 840, 36425 x 205 x 3645 x 26363645 x 54645 x 64645 】

(0.05 x 38/365 + 0.25 】 (4 ＋ 78/365)), and demand expenses 15,840 won.

(B) From June 9, 2003 to August 30, 2005, total of KRW 45,663,490 equivalent to the above demand amount of KRW 597,680 (i.e., KRW 367,520 + KRW 15,840 + KRW 214,320). The remainder of the repayment amount of KRW 45,065,810 (i.e., KRW 45,63,490 - KRW 597,680) is first appropriated for part of the damages for delay due to the payment order of KRW 201 tea596, which became the most active among damages for delay.

(C) The remaining amount of the obligation after the appropriation of the foregoing performance is ① Principal KRW 92,162,520, 520, delay damages KRW 58,74,837 on the basis of the payment order of KRW 2001,596 (= KRW 103,840,647 - KRW 45,065,810), ② Principal KRW 160,231,250, delay damages KRW 17,329,899, ③ Principal KRW 2,742,460, delay damages damages KRW 2,90,249, and KRW 249 upon the payment order of KRW 1465 on the basis of the payment order of KRW 201.

(2) On May 10, 2006, the application for the appropriation of the debt

(A) The remaining amount of the obligation before the appropriation of the performance as of May 10, 2006 is ① Principal Amounting to KRW 92,162,520, and damages for delay, KRW 74,745, and 465 [=58,774,837 won + ( KRW 92,162,520 x 0.25 x 253/365] based on the payment order of KRW 201, 2001, KRW 160,231,250, KRW 205,095, KRW 99 [17,329, KRW 160, KRW 231,250 x x 250 x 25365 x 365 x 2465 x 25465 x 27465 ]

(B) The Defendant asserts that the principal amount of KRW 872,530 out of KRW 73,945,730 collected on May 10, 2006 was reached against the principal, and the Plaintiff also raises any objection. As such, the above KRW 872,530 out of KRW 73,945,730 is appropriated for part of the principal due to the payment order of KRW 2001,596, which first became due and due, and the remainder of the collection amount of KRW 73,073,200 (=73,945,730 - KRW 872,530) is appropriated for part of the damages for delay due from the payment order of KRW 73,07,20,00, which became due and due.

(C) The remaining amount of the debt after the appropriation of the above appropriation is ① Principal KRW 91,289,990 on the basis of the payment order of KRW 2001,596 (=92,162,520 - 872,530), damages for delay KRW 1,672,265 (==74,745,465 - 73,073,200), and ② the payment order of KRW 2001,901 and ③ payment order of KRW 2001,1465 are as set forth in the above (A).

(3) On August 11, 2006, the application for the appropriation of debt

(A) The remaining amount of the obligation before the appropriation of the obligation as of August 11, 2006 is the amount of the payment order of KRW 91,289,90 for principal, KRW 7,542,891 for the payment of the payment order of KRW 1,672,265 for the payment of the payment order of KRW 1,672,265 for the payment delay + ( KRW 92,162,520 x 0.25 x 93/365). ② ② The principal is 160,231,250 for the payment order of KRW 215,302,510 for the payment delay as of August 11, 206 + [205,09, KRW 160,231,250 x 00 x 930 x 9365 x 9365 x 25365 x 2014].

(B) The defendant asserts that the amount of KRW 91,289,90 out of the amount of KRW 185,50,460 collected on August 11, 2006 shall be appropriated for the principal, and the plaintiff also raises any objection. Thus, the above KRW 91,289,90 shall be appropriated for the part of the principal under the payment order of KRW 2001,596, which first became due and due and due, and the remainder of the collection amount of KRW 73,073,200 (=185,503,460 - KRW 91,289,90) shall be appropriated for the damages for delay, and according to the order of due and due date, KRW 7,542,891 on the damages for delay under the payment order of KRW 201,596, KRW 86,579,579,90 on the damages for delay under the payment order of KRW 2001.

(C) The remaining amount of the debt after the appropriation of the payment was made as above is KRW 0 won (= KRW 91,289,90-91,289,90) and KRW 0 won for delay damages (= KRW 7,542,891- KRW 7,542,891) and KRW 160,231,250, KRW 128,631,931 (= KRW 215,302,510 - KRW 86,670,579), and KRW 3,465 of the payment order of KRW 201,201, KRW 200, KRW 160,231,250, KRW 128,631,931 (=) and KRW 215,302, KRW 510 - KRW 86,570,99).

4. Conclusion

Thus, ① The defendant's compulsory execution based on the payment order of 596 dated February 22, 2001 against the plaintiff of Gwangju District Court (Seoul District Court) shall not be permitted. ② The compulsory execution based on the payment order of 2001 tea 901 dated March 27, 2001 shall not be permitted. ② The above court's order of 28,863,181 won (i.e., remaining principal + 160,231,250 won + 128,631,931 won for remaining delay damages) and the above 160,231,250 won for the above 160,250 won and the above 25% judgment of 25% of the total amount shall not be rejected as of August 12, 2006 to the day of complete payment (= the above court's order of 205% of the remaining 25% of the total amount, 365% of the remaining 25% of the damages of 264.25% of the above judgment

Preliminaryity (Presiding Judge)

Written Questions

Jins