[1] In a case where a debtor and a custodian did not enter a specific creditor's claim in the list, such as rehabilitation creditors, etc. submitted to the court, and the above creditor did not report a claim declaration or a subsequent completion, the case holding that the lawsuit seeking performance is unlawful because the above claim is exempted from liability and loses the right to institute a lawsuit, and there is no benefit in

[2] The case holding that in a case where the debtor and the administrator did not enter the specific creditor's claims in the list, such as rehabilitation creditors, etc. submitted to the court and the above creditor did not report on the report of claim or subsequent completion, the above debtor and the administrator's liability for damages are recognized, and the amount of damages payable under the rehabilitation plan shall be deemed as

[1] In a case where a debtor and a custodian failed to enter a specific creditor's claim in the list, such as rehabilitation creditors, etc. submitted to the court and the above creditor did not report a claim declaration or a subsequent completion, the case holding that, since a creditor did not report a claim arising prior to the commencement of rehabilitation procedures as a rehabilitation claim and the above claim has lost the ability to file a lawsuit ordinarily entitled to exemption and have an ordinary claim, the lawsuit seeking its performance is unlawful on the grounds that there is no benefit in the protection of rights.

[2] In a case where the debtor and the administrator did not enter the claims of a specific creditor in the list, such as rehabilitation creditors, submitted to the court, and the above creditors did not report on the completion or subsequent completion of the claims, the case holding that since the above debtor and the administrator neglected their duty of care when they knew or could have known the existence of the above obligations at the time of commencement of rehabilitation procedures and omitted it from the list of rehabilitation creditors, and did not file an application for modification or correction of the matters entered in the list by the end of the reporting period, thereby causing damage to the creditor who could not seek the performance of the above claims, the case acknowledged the liability for damages arising therefrom, and the amount of damages that

[1] Articles 118, 147, 148, 151, 152, and 251 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 118, 147, 148, 151, 152, and 251 of the Debtor Rehabilitation and Bankruptcy Act; Article 53(1) of the Debtor Rehabilitation and Bankruptcy Act; Articles 393, 750, and 763 of the Civil Act

Plaintiff (Law Firm Jinjin, Attorneys Ha Young-ju, Counsel for the plaintiff-appellant)

Defendant (Law Firm Dadam, Attorney Park Ho-jin, Counsel for defendant-appellant)

April 2, 2010

1. The main part of the lawsuit in this case shall be dismissed.

2. The defendant shall pay to the plaintiff 1,44,775 won with 5% interest per annum from October 22, 2009 to April 16, 2010, and 20% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. Paragraph 2 can be provisionally executed.

5. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Main and Preliminaryly, the defendant shall pay to the plaintiff 250,000,000 won with 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff primarily claims for the amount of goods or bills, and claims for damages arising from unjust enrichment return or tort).

1. Basic facts

A. The relationship between the plaintiff and the defendant

During the period from August 2007 to January 2008, the Plaintiff supplied LPG gas to Sama Industry Co., Ltd. and SamaN Co., Ltd. (hereinafter “Sama industry” and “SamaN,” hereinafter collectively referred to as “Sama”). The Defendant is the major shareholder and representative director of the non-party company, and was engaged in the recycling fiber processing business, etc. by establishing Sama unemployment from around 192.

B. The defendant's issuance of promissory notes

Upon the Plaintiff’s request for the payment of the above gas price, the Defendant issued to the Plaintiff one promissory note (Evidence A 2; hereinafter “the Promissory note of this case”) which is “the amount of face value 250,000,000 won, the date of issuance, and the date of payment on January 7, 2008,” signed and sealed by the Nonparty Company as the issuer as well as the Plaintiff.

C. The progress of rehabilitation procedures for the defendant and the non-party companies

1) On February 1, 2008, the Defendant applied for the commencement of the rehabilitation procedure with the non-party company on February 26, 2008.

2) Accordingly, on January 19, 209, Suwon District Court Decision 2008Hun-Ma6, Suwon District Court 2008Hun-Ga, Suwon District Court 2008 Suwon District Court 2008Hun-MaMa5, the marina industry is undergoing rehabilitation procedures after receiving a decision to commence rehabilitation procedures. On February 5, 2009, the rehabilitation case of 2008Hun-Ma6 against the defendant was cultivated as a bankruptcy unit (2009Hun-Ma55), which is undergoing rehabilitation procedures for the non-party company, and the subsequent rehabilitation procedures for the defendant and the non-party company were jointly conducted (on February 5, 200 and February 15:30, 2009, all of the three cases after re-distribution became final and conclusive from the above court 310 to the second and third related parties meeting from the above court 310 to the above court on February 15, 209, and each of the above rehabilitation plan for the non-party company was finalized on February 319, 2009.

3) However, the Defendant, who is the debtor and custodian, did not enter the Plaintiff’s claim in the list of rehabilitation creditors, etc. submitted to the court. In each rehabilitation procedure for the non-party company, the Plaintiff also reported the Non-party company as “151,50,311 won” and “59,686,485 won” in the amount of voting rights for the marina industry, on the ground of rehabilitation claim. However, the Defendant did not report the claim in the rehabilitation procedure for the Defendant, and did not report the completion of the rehabilitation procedure by the second meeting of interested parties, along with the non-party company.

[Basis] Facts without dispute, Gap evidence 2, Eul evidence 3-1, 2, Eul evidence 1, 2, 4, Eul evidence 5-1, 2, Eul evidence 6-1, 6-2, and the purport of the whole pleadings

2. Determination as to the plaintiff's primary claim (the plaintiff's primary claim for the price of goods or promissory note)

A. Summary of the parties' assertion

The plaintiff sought payment of the unpaid amount of goods or promissory note 250,000,000 won and damages for delay, and the defendant asserts that the lawsuit of this case should be dismissed because the claim asserted by the plaintiff is not forfeited because it is not entered in the list of creditors.

B. Determination

According to the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”), any property claim that has arisen before the commencement of rehabilitation procedures for a debtor constitutes a rehabilitation claim (Article 118); and any custodian shall prepare and submit to the court a list of rehabilitation creditors, etc. prior to reporting the rehabilitation creditor, etc. (Article 147); any rehabilitation creditor, etc. recorded in the list shall be deemed to have been reported pursuant to the Act (Article 151); any rehabilitation creditor, etc. who intends to participate in rehabilitation procedures regardless of whether it is entered in the list, shall report his/her rehabilitation claim to the court within the reporting period prescribed by the Act (Article 148); if any rehabilitation creditor, etc. fails to report within the reporting period due to any cause not attributable to him/her, he/she may supplement such report within one month after the date on which such cause ceases to exist (Article 152; Article 158 shall not be completed; Article 251); if it is decided to grant authorization of the rehabilitation plan, any debtor shall be exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized pursuant to the rehabilitation plan

According to the above legal provisions and the facts acknowledged earlier, the Plaintiff’s claim for the price of the instant goods (However, even if the Plaintiff’s claim is based on the Plaintiff’s argument, the Defendant is not a party to a transaction, and it appears to be responsible for the payment guarantee against the Defendant in light of the overall purport of pleadings) or the claim for bills is rehabilitation claim created before the decision on commencing rehabilitation procedures is made. The Plaintiff did not report the above claim as a rehabilitation claim, and the above claim was not entered in the list of rehabilitation creditors. Thus, the Plaintiff’s claim as alleged by the Plaintiff was exempted from its liability and lost the ability to file a lawsuit that has ordinary claims. Accordingly, the primary claim for which the Plaintiff seeks performance in the lawsuit in this case is unlawful as there is no benefit of the protection of rights (e.g., the Plaintiff intentionally omitted the Plaintiff’s claim from the list, and the Plaintiff was unaware of the progress of rehabilitation procedures against the Defendant, and thus, the Plaintiff’s exemption effect for the Plaintiff’s rehabilitation claim is not effective, but it is difficult to view that the law was exempt from the rehabilitation claim not reported by the obligee.

3. Determination as to the plaintiff's conjunctive claim (return of unjust enrichment or claim for damages)

A. Summary of the assertion

The Plaintiff asserts that the Defendant is liable to pay the Plaintiff the amount of KRW 250,000,00, which is equivalent to the face value of the Promissory Notes, as the Defendant intentionally omitted the Plaintiff from the Plaintiff’s obligation of the Promissory Notes, thereby obtaining unjust enrichment equivalent to the amount of the Promissory Notes, or preventing the Plaintiff from being repaid the amount of the Promissory Notes.

B. Determination on the claim for restitution of unjust enrichment

In this case, the defendant is exempted from liability for the plaintiff's claim under the main sentence of Article 251 of the Act, and thus, the defendant cannot be deemed to have obtained profits without any legal ground. Thus, the plaintiff's claim for return of unjust enrichment is without merit.

C. Judgment on the claim for damages caused by a tort

1) Occurrence of damages liability

On the other hand, the defendant, as a manager, performed his duties with the care of a good manager. Although it appears that the issuer of the Promissory Notes in this case knew or could have known the existence of the above obligation at the time of the commencement of rehabilitation procedures, due to neglecting such duty of care, did not apply for the alteration or correction of the matters entered in the list by the end of the reporting period (Articles 147(4) and 53(1) of the Act), thereby causing damage to the plaintiff that could no longer seek the performance of the above obligation, and the defendant is liable to compensate the plaintiff for damages incurred thereby.

2) Calculation of damages

A) The date when the rehabilitation plan approval order was finalized on March 3, 2009 when the plaintiff's claim was infringed due to the defendant's illegal act, and the damage suffered by the plaintiff is limited to the amount that can be repaid according to the rehabilitation plan if the defendant's claim was entered in the list of creditors because the defendant's claim was not entered in the list of creditors.

B) Next, as to what is the rehabilitation claim of the Plaintiff in relation to the repayment rate, the Defendant issued the Promissory Notes in this case as the representative director of the non-party company in the sense that it guarantees or guarantees the payment of the price for the goods as the representative director of the non-party company. It appears that the Plaintiff could be held liable only for the price for the goods actually incurred according to the underlying obligation. The Plaintiff reported “151,550,311 won” and “59,686,485 won” in the rehabilitation procedure for the non-party company as the voting right, based on the following reasons: (a) in light of the content and cause of the claim, the Defendant issued a promissory Notes as a guarantee for the payment of the price for the goods of the non-party company; (b) it is reasonable to view that the Defendant stated the Plaintiff’s claim in the list of creditors in light of the nature of the Plaintiff’s business activities as the guarantee claim and the concept of the obligation arising from the Plaintiff’s offering of the goods to the non-party company as the “liability 2” in light of the concept of the law’s obligation.

According to the above criteria, the repayment plan authorized for the defendant (Evidence A 3-1) provides that the repayment plan shall be made in cash at two percent (98%) of the amount of the credit to be repaid for the guaranteed claim among the rehabilitation claims by installments for two years from 2017 to 2018, and the ordinary rehabilitation plan is made on December 30 of the pertinent year, unless otherwise expressly prescribed. Thus, the amount that the plaintiff is entitled to receive according to the draft repayment plan by December 30 of the pertinent year is calculated on December 30 of the pertinent year. Thus, the amount that the plaintiff is entitled to receive according to the draft repayment plan by December 30 of 2017 and December 30, 2018 (=211,236,796 won x 0.02/2, and less than won) is calculated by deducting the present amount by the monthly rate by the method of subparagraph (f).

(1) 1,469,472 won [1+2,12,367 won/[1+0.05 x 105 months from March 3, 2009 to December 30, 2017]]

(2) 1,420,078 won [2,12,367 won/[1+0.05 x 117 months (number of months from March 3, 2009 to December 30, 2018]]

(c) Total amount: 2,889,550 won;

3) Fruits offsetting

Meanwhile, as seen earlier, it is reasonable to view the Plaintiff’s negligence as 50% in view of the fact that the Plaintiff appears to have been able to report as a creditor in the rehabilitation procedure against the Defendant, and thus, the Defendant’s liability is limited to 50%.

4) Sub-committee

Therefore, the defendant is obliged to pay the plaintiff damages amounting to 1,44,775 won (=2,89,550 won x 0.50 won) and damages for delay at each rate of 20% per annum under the Civil Act from October 22, 2009, which is the day following the delivery date of a copy of the complaint of this case sought by the plaintiff, until April 16, 2010, which is deemed reasonable for the defendant to dispute the existence or scope of the performance of the claim of this case.

4. Conclusion

Therefore, the main claim of this case is dismissed as it is unlawful, and the claim for damages based on a tort among the conjunctive claims is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Tae-tae (Presiding Judge)