Main Issues
The meaning of "Suspension of Payment" under Article 78 (1) of the Company Reorganization Act
Summary of Judgment
"Suspension of payment" under Article 78 (1) 2 of the Company Reorganization Act refers to an express and implied expression that the debtor is unable to repay his/her obligation at the time of payment in general and continuous manner due to lack of self-sufficiency, and generally, in cases where the debtor is ordered to suspend current account transactions by a bank or a clearing house after the issuance of a bill, it shall be deemed that the suspension of payment is in a state of suspension of payment unless there are special circumstances. Thus, it is reasonable to deem that the person who was aware of the suspension of current account transactions by the company was aware that the company
[Reference Provisions]
Article 78 (1) 2 of the Company Reorganization Act
Reference Cases
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Hann, Attorneys Han-soo et al., Counsel for plaintiff-appellant)
Plaintiff, Appellant
The administrator of Egyptians Co., Ltd. (Law Firm Bag, Attorneys Kim Ho-hoon et al., Counsel for the plaintiff-appellant)
Defendant, Appellee
C&T Co., Ltd. (Law Firm Kim & Shin-D U.S., Attorneys Jeong Jae-deok et al., Counsel for the plaintiff-appellant)
Judgment of the lower court
Seoul High Court Decision 2001Na53570 delivered on May 1, 2002
Text
The part of the judgment of the court below regarding the amount of KRW 844,274,120 repaid by the defendant according to the seizure and collection order shall be reversed, and the part of the case shall be remanded to the Seoul High Court.
Reasons
1. Basic facts acknowledged by the court below
A. Egythio Egypt Co., Ltd. (hereinafter “Egythio-electronic Co., Ltd.”) filed an application for commencement of reorganization proceedings with the Seoul District Court on Nov. 1, 1997 due to the sudden aggravation of financial standing in the latter half of 197. On Nov. 3, 1997, Egystio-company Co., Ltd. (hereinafter “ Egythio-electronic Co., Ltd.”) was subject to suspension of each current account transaction at the Seoul Clearing-house on Nov. 4, 1997 at the Seoul Clearing-house on Nov. 4, 1997, and at the Incheon Clearing-house on Nov. 6, 1997. After consultation with creditors of Egyio-Electronic Co., Ltd., Ltd. (hereinafter “Egyio-electronic Co., Ltd.”). The application for commencement of reorganization proceedings was withdrawn on Nov. 29, 197.
B. On December 2, 1997, the article stating, “Around that time, the filing of an application for the commencement of reorganization proceedings and the withdrawal thereof was reported through central daily newspapers, broadcasting, etc., and the article stating, “A plan to discuss the countermeasures for neglect, such as the resumption of current account transactions with respect to neglect by the creditor banks and additional financial assistance, will be discussed by the creditor banks of Thai.”
C. A neglect electronic transaction was made on November 29, 1997, including the sale of parts or articles supplied or manufactured by an existing customer from the time of the withdrawal of the application for the commencement of the company's reorganization proceedings to the time of the application for the commencement of the company's reorganization proceedings, and the price was paid in cash or by a bill (a bill delivered from the customer as payment).
D. On January 29, 1999, the defendant filed a lawsuit against neglected electronic and its joint surety under the lease contract with the Seoul District Court 98Gahap60854, which sought performance of obligation under the lease contract with the Seoul District Court 98Gahap60854, and the above judgment becomes final and conclusive around that time, and the above judgment was served on the defendant jointly and severally, with payment of the amount of KRW 722,722,691, and damages for delay therefor. The above order was served on the defendant for repayment of the amount of KRW 844,274,120, among the claims for the purchase of goods against the third obligor, which are due to the above final and conclusive judgment with executory power. The above order was served on the defendant for repayment of the amount of KRW 844,274,120, and KRW 120,000, which is the third obligor. The above collection order was served on the defendant for repayment of the amount of KRW 99Ma1462,244,199.
E. After that, due to the obligees’ failure to reach an agreement on the direction of processing of neglected electronics, neglected electronics were re-entrusted to the Seoul District Court on November 30, 199, and the above court rendered a decision to commence corporate reorganization proceedings with respect to neglected electronics on February 10, 200 (the record reveals that the decision to commence corporate reorganization proceedings with respect to neglected electronics has not been revoked until the decision to commence corporate reorganization proceedings was made after the disposition to suspend current account transactions was issued on November 4, 1997).
2. Judgment on the grounds of appeal
The court below rejected the plaintiff's assertion that the repayment of this case constitutes a ground for denial under Article 78 (1) 2 of the Company Reorganization Act and thus, the plaintiff's neglect to seek restitution after the cancellation of this case's repayment constitutes a ground for denial of current account transaction, and the defendant was in the status of suspension of payment after a clearing house was ordered to suspend payment after the suspension of current account transaction, and the defendant also recognized that he was aware of the failure to perform his duties and the suspension of current account transaction disposition as a specialized credit financial business company, but the above application for suspension of payment was withdrawn at 28 days after the failure to start the company's reorganization procedure was requested. After the application for commencement of the above commencement of the contract, the article "I would like to discuss the measures for neglect of transaction, such as the resumption of current account transaction transactions with the neglect of duty by the creditor bank of Thai," was reported through a newspaper, and even after the application for suspension of current account transaction continued to be traded with the existing business party. In light of the above, the court below rejected the plaintiff's assertion.
However, while the court below acknowledged that the Defendant was aware of the fact that the electronic devices neglected at the time of the instant repayment had been in the status of suspending current account transactions and that such circumstances were known, the court below’s determination that it cannot be viewed that the Defendant was aware of the fact that the Defendant was in the status of suspending payment under Article 78(1)2 of the Company Reorganization Act based on the circumstances stated in its holding
"Suspension of payment" under Article 78 (1) 2 of the Company Reorganization Act means explicitly and explicitly expressing that the debtor is unable to repay his/her obligations due to lack of self-sufficiency (see Supreme Court Decision 2000Da63554, Jun. 29, 2001). In general, where the debtor is subject to the disposition of suspension of current account transactions by a bank or a clearing house after the issuance of a bill, it shall be deemed that the suspension of payment is in the absence of special circumstances. Thus, it is reasonable to deem that the person who was aware of the disposition of suspension of current account transactions by the company was aware that the company had been in the status of suspension of payment under the above Act, barring special circumstances.
According to the records, major affiliates of the neglected group who neglected to perform their obligations before and after November 4, 197 due to the failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy (hereinafter referred to as the “Act on Real Name Financial Transactions and Guarantee of Secrecy”) were unable to reach an agreement on the suspension of payments for each of the following reasons: (a) due to the aggravation of financial resources; (b) due to the failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; (c) due to the failure to perform their respective obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; (d) due to the failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; and (e) failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; and (e) failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; and (e) failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of Secrecy; and (e) failure to perform their obligations under the Agreement on Real Name Financial Transactions and Guarantee of the Agreement.
Nevertheless, the court below, based on its stated reasoning, determined that the defendant could not be deemed to have known the fact that the payment suspension status of neglected electronics at the time of the repayment of the debt in this case or that the repayment was prejudicial to the reorganization creditors, etc.
3. Therefore, among the judgment of the court below, the part concerning the amount of KRW 844,274,120, which the defendant received from the collection order based on the seizure and collection order, is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the
Justices Kim Ji-dam (Presiding Justice)