Plaintiff (Appointed Party) (Attorney Han Jin-jin, Counsel for the plaintiff-appellant)

Defendant in bankruptcy for the bankrupt corporation, the trustee in bankruptcy, the trustee in charge of the Ecogra leisure development, the trustee in charge of the Ecogra leisure development

June 19, 2013

Gwangju District Court Decision 2012Gahap3808 Decided October 26, 2012

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

A. Of the instant lawsuit by the Plaintiff (Appointed Party) and the appointed parties, the part of each claim for delay damages as to the period from the respective date indicated in the “the initial date of delay damages” column of attached Table 2 to October 25, 2012 shall be dismissed.

B. The Defendant shall pay to the Plaintiff (Appointed Party) and the appointed parties 20% of the annual interest rate from October 26, 2012 to the day of full payment with respect to each of the said money and each of the said money stated in the “amount claimed” column of attached Table 2.

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

3. The above paragraph 1(b) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") and the Selections 20% interest per annum from the corresponding day to the day of complete payment as to each of the above amounts entered in the column of "the initial date of calculation of delay damages" of the attached Table.

2. Purport of appeal

In the judgment of the court of first instance, the part against the defendant, excluding the part against the Appointor 37 and the part against the Appointor 37, shall be revoked, and the part against the defendant shall be dismissed, and the claim against the Appointor 37 shall be dismissed, and the part against the claims against the Appointor 37, excluding the Appointor 37, shall be dismissed.

1. Basic facts

A. The plaintiff and the designated parties were employed by the non-party Ecogra leisure development corporation (hereinafter referred to as the "non-party company") and worked for the period of work specified in the attached Table, but did not receive the wages and retirement allowances corresponding to the "amount claimed" column in the attached Table.

B. On October 25, 2012, the non-party company was declared bankrupt by the Gwangju District Court, and the defendant was appointed as the bankruptcy trustee of the non-party company on the same day and taken over the lawsuit of this case.

[Ground of recognition] Facts without dispute, contents stated in Gap evidence 1, and purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

With respect to the lawsuit in this case filed by the plaintiff and the designated parties seeking wages, retirement allowances, and damages for delay that were not paid by the non-party company, the defendant asserts that the claim for damages incurred before the declaration of bankruptcy constituted bankruptcy claims under Article 423 of the Debtor Rehabilitation and Bankruptcy Act, which are arising from property claims arising before the declaration of bankruptcy, and the claim for damages for delay incurred after the declaration of bankruptcy constitutes subordinate bankruptcy claims under Article 446 (1) 2 of the Debtor Rehabilitation and Bankruptcy Act, each of the above claims for damages for delay can be exercised only by bankruptcy proceedings. It is unlawful for the plaintiff and the designated parties to bring a lawsuit against each of the above claims for damages for delay by civil procedure.

B. Determination

The worker's wage and retirement allowance claim (hereinafter "wages and other claims") constitute estate claims provided for in Article 473 subparag. 10 of the Debtor Rehabilitation Act. However, since the legal nature of damages for delay of monetary obligation is damages for losses, it cannot be deemed that damages for delay of payment of wages and other claims are included in claims such as wages.

On the other hand, the trustee in bankruptcy has an obligation to repay at any time claims, such as wages, which are estate claims (Article 475 of the Debtor Rehabilitation Act), and the trustee in bankruptcy shall pay damages for delay of claims, such as wages, etc. In such cases, such damages for delay constitutes estate claims (see Supreme Court Decisions 2002Da53865, Nov. 12, 2004; 2009Da38551, Jun. 24, 201, etc.).

Therefore, among the above damages claims of the plaintiff and the designated parties, the damages incurred before the declaration of bankruptcy of the non-party company constitutes bankruptcy claims and the damages incurred after the declaration of bankruptcy of the non-party company constitutes estate claims. Since bankruptcy claims can only be exercised by bankruptcy proceedings (Article 424 of the Debtor Rehabilitation Act). The part of the damages claim arising before the declaration of bankruptcy of the non-party company among the claims of the plaintiff and the designated parties in this case is unlawful. Ultimately, the defendant's principal safety defense is justified only for the damages claim arising before the declaration of bankruptcy of the non-party company among the claims

3. Judgment on the merits

A. Determination on the cause of the claim

According to the facts established earlier, barring any special circumstance, the Defendant shall pay to the Plaintiff and the Selections the amount indicated in the “amount claimed” column of the attached Table and each of the above amounts at the rate of 20% per annum from October 26, 2012 to the date of full payment under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from October 26, 2012 to the date of the declaration of bankruptcy of the Nonparty Company

B. The defendant's assertion and judgment on it

The defendant's assertion that the statutory interest rate under the main sentence of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (Presidential Decree No. 17981 of May 29, 2003) set the statutory interest rate at 20% per annum under the main sentence of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings is in violation of the Constitution because the interest rate is too

The reason why the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is to be set by the Presidential Decree within the limit of 40 percent per annum from the day following the day on which the bill, etc. served as a basis for calculating the amount of damages caused by the nonperformance of a monetary obligation, is to prevent delay in a lawsuit and facilitate dispute settlement by allowing the application of the interest rate higher than the statutory interest rate under the Civil and Commercial Act in cases where a civil lawsuit is instituted due to the nonperformance of a monetary obligation, and the special Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. of Legal Proceedings, when it is deemed reasonable to dispute over the existence and scope of a lawsuit until the judgment is rendered by the fact-finding court which declares the existence of the obligation to perform as a fact-finding court under Article 3(2) to the extent that the legal interest rate under the above provision can be excluded from the application of the statutory interest rate under the above provision, and it is difficult to view that the statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is set every year.

4. Conclusion

Therefore, the part of the claim for delay damages against the plaintiff and the designated parties during the period from the date indicated in the "date of calculation of delay damages" column of attached Table 2 to October 25, 2012 is unlawful. Thus, all of these claims shall be dismissed, and all of the remaining claims of the plaintiff and the designated parties except the above dismissed parts shall be accepted for the reasons. Since the judgment of the court of first instance is unfair with some different conclusions, it is so unfair that part of the defendant's appeal is accepted and the judgment of the court of first instance shall be modified as above. It is so decided as per Disposition.

[Attachment]

Judges Park Jung-hwa (Presiding Judge)