[Defendant-Appellant] Plaintiff 1 and 2 others

Defendant Co., Ltd. (Law Firm Rate, Attorneys Seoh-kin, Counsel for the defendant-appellant)

October 12, 2007

1. The plaintiff's primary and conjunctive claims are dismissed, respectively.

2. Litigation costs shall be borne by the plaintiff.

The primary and conjunctive Defendant shall pay to the Plaintiff KRW 727,116,745 upon December 31, 201, and KRW 697,430,233 upon December 31, 2012.

1. Basic facts

A. On February 10, 1997, the plaintiff corporation (hereinafter the plaintiff corporation) applied for the commencement of the company reorganization procedure as Seoul District Court 97Ma988, and received the order of commencement of the company reorganization procedure from the above court on October 31, 1997, and the defendant corporation (hereinafter the defendant corporation) applied for the commencement of the company reorganization procedure as Seoul District Court 97Ma984 on February 10, 1997 and received the order of commencement of the company reorganization procedure from the above court on October 31, 1997.

B. On November 26, 1997, the Plaintiff reported to the Plaintiff the claim amounting to KRW 11,454,58,808, which is the sum of KRW 11,571,200,000, KRW 12,076,977,314, and KRW 147,314, and KRW 2,8808,00 in the company reorganization procedure against the Defendant against the Defendant. On December 17, 1997, the Plaintiff reported the claim amounting to KRW 10,00,00 in total, KRW 12,076, KRW 97, KRW 314, and KRW 2,076, KRW 97, KRW 314.

C. The non-party 1 corporation transferred the guarantee claim against the plaintiff to the non-party 2 limited liability company, and the non-party 2 limited liability company's claim confirmed as a result of the reorganization plan conducted on August 20, 1998 through the reorganization plan conducted on August 20, 199 as listed below. According to the above reorganization plan, with respect to the above reorganization plan, the principal and interest during the period from 2003 (5th year) to 2012 (14th year) without exemption or debt-equity swap, the non-party 1 corporation paid the total amount of debt-equity swap from the first year to the non-party 2,319,94,695 won without exemption or debt-equity swap, and the principal was divided from 203 (5th year to 12 year) to 2010 (5th year) to 2010 to 2017th year (29th year) to 2010 to 2017.

본문내 포함된 표 구분 변경내용 경과이자 발생이자 총액 정리담보권 6,252,176,000원 ？ 7,704,988,998원 14,117,164,998원 정리채권 2,319,944,695원 132,967,287원 1,163,036,275원 3,615,948,257원 계 8,572,120,695원 132,967,287원 8,868,025,273원 17,733,113,255원

D. According to the above repayment plan on December 31, 1999, the defendant paid to the non-party 2 limited liability company ① Principal KRW 28,000,00,000, elapsed interest KRW 24,967,287 and interest KRW 115,314,105,288,281,392, ② Principal KRW 22,000,000, past interest KRW 18,000,000 and interest KRW 61,125,725, ③ Principal KRW 22,000,000, and KRW 125,725,31 December 31, 201, and the account number of Non-party 22,00,000,000 interest KRW 18,00,000,000,000,000 and KRW 125,0057,057,005,025,00.

E. Meanwhile, in the company reorganization procedure against the plaintiff on July 9, 2002, with regard to the method of implementing the reorganization claim by the non-party 2 limited liability company, the plaintiff approved the company reorganization plan with the contents that ① make a cash payment equivalent to 14%, ② KRW 514,272,462, which is equivalent to 6%, shall be converted into investment (it decided to issue one share per 50,000 registered ordinary shares of KRW 50), ③ KRW 6,856,966,156, which is equivalent to 80% (this was exempted in full), the plaintiff paid to the non-party 2 limited liability company on August 14, 200, the amount of KRW 19,969,969,077 shall be determined as KRW 10,500,000 per share, and the amount of the new shares issued and paid as KRW 508,1508,00 per share.

[Ground for Recognition: Facts without dispute, Gap 1 through 3 evidence, Gap 4-1 through 3, Eul 2-1 and Eul 2-2, the purport of the whole pleadings]

2. Determination:

A. The plaintiff's assertion

The Plaintiff’s primary cause of claim is the Plaintiff’s primary cause of claim, premised on the Plaintiff’s acquisition of the right to indemnity equivalent to the amount arising out of the total amount of the principal debt without any distinction as to whether the principal debt has been extinguished or not, and on the premise that the surety acquired the claim for reimbursement of KRW 1,212,312,27 by subrogation of KRW 1,277 by cash payment and debt-equity swap to Nonparty 2-based limited liability companies, the obligee. Accordingly, according to the Defendant’s reorganization plan as of August 20, 1998, the Defendant is liable to pay the Plaintiff the amount of reimbursement of KRW 727,116,745 (the principal amount of KRW 587,094,67 as 201 plus KRW 140,02,068 as 140,02,068 as 2.31 December 31, 2012, the Plaintiff is liable to pay the principal amount of reimbursement of KRW 697,430,263637.

B. Judgment on the main claim

(1) Relevant regulations and legal principles

After the commencement of reorganization proceedings, when a guarantor performs the act of extinguishing the obligations of the reorganization company which is the principal debtor by his own contribution, he acquires a right to indemnity against the reorganization company. Thus, the guarantor may participate in reorganization proceedings by reporting his future right to indemnity as a reorganization claim in the future. [Article 110 (1) (main sentence) and (3), and Article 123 (1) of the former Company Reorganization Act (amended by Act No. 7428 of Mar. 31, 2005), and Article 110 (1) (proviso) of the former Company Reorganization Act (amended by Act No. 7428 of Mar. 31, 2005), and Article 110 (1) of the former Company Reorganization Act (amended by Act No. 7428 of Mar. 31, 2005) provides that if a creditor exercises his rights as a reorganization creditor with respect to the total amount of such claims, a person holding a future right to indemnity against the reorganization company cannot exercise his rights as a reorganization creditor (

(2) Determination

(A) We look at the instant case, and the Plaintiff as the Defendant’s guarantor at the time of commencement of the Defendant’s reorganization procedure. However, the Plaintiff did not participate in the Defendant’s reorganization procedure by reporting the right to indemnity and reporting the right to indemnity and taking part in the Defendant’s reorganization procedure as long as Nonparty 1 corporation, the obligee, took part in the Defendant’s reorganization procedure by reporting KRW 12,076,977,314, the total amount of its claim, the Plaintiff cannot exercise its right as a reorganization creditor. Even if the Plaintiff already performed part of the guaranteed obligation to Nonparty 1 corporation after the commencement of the reorganization procedure, it cannot be deemed that the Plaintiff’s right to indemnity lost under the former Company Reorganization Act has already been restored. Therefore, the Plaintiff’s primary claim on different premise is without merit.

(B) The plaintiff asserts that the reorganization plan becomes the basis for independent recognition of right, separate from the provisions of the former Company Reorganization Act, and whether a partial subrogation can exercise the right to indemnity under any condition is determined according to the contents of the pertinent reorganization plan. According to the defendant's corporate reorganization plan on August 20, 1998, where the guarantor pays the debt of the defendant company after the approval date of the reorganization plan, the subrogated is recognized as the subrogation of the creditor's total amount of the claim or the acquisition of the right to indemnity regardless of whether the subrogation is the subrogation of the creditor's whole amount of the claim or the payment by subrogation is a part of the subrogation, and therefore, the plaintiff still can exercise the right to indemnity even

In light of the records of evidence No. 3 of the above, if the reorganization program of the company of August 20, 1998, which was conducted by the reorganization security holder or reorganization creditor of the company of August 20, 1998, exercises a security right established in the property of a third party with respect to a right to indemnity in the future, or is used by the reorganization company after the alteration of a security or reorganization claim by subrogation from a third party, such security holder or reorganization creditor, such security or reorganization claim shall be appropriated in order from the beginning of the last year of the reorganization program in the order of the principal, past interest, and the interest, and if the surety, etc. acquired a right to indemnity by subrogation of the reorganization company after the date of approval of the reorganization program, such right to indemnity by subrogation within the scope of the reorganization security and reorganization claim, such right shall be paid by the reorganization company in subrogation of the third party including the guarantor, and it shall not be accepted as being contrary to the purport of the above provision of the reorganization claim of Article 10 (1) of the former Company Reorganization Act.

C. Determination on the conjunctive claim

(1) Relevant regulations and legal principles

Article 110 (1) of the former Company Reorganization Act provides that in case where several persons are liable for performance in full, if reorganization proceedings are commenced in respect of all or some of them or one of them, a person holding the right to indemnity which may be exercised in the future against them may exercise his right as a reorganization creditor with respect to the total amount of the claim, but this does not apply in case where a creditor exercises his right as a reorganization creditor with respect to the total amount of the claim. If a creditor exercises his right as a reorganization creditor with respect to the total amount of the claim, he may not exercise his right as a reorganization creditor. However, if a creditor pays for the total amount of the claim by subrogation, he may exercise his right as a reorganization creditor with respect to the total amount of the claim held at the time of commencement of the reorganization proceedings by changing the name of report, etc. However, if there is a subrogation for a part of the claim, only the creditor may exercise his right as a reorganization creditor with respect to the total amount of the claim held by him at the time of commencement of the reorganization proceedings (see, e.g., Supreme Court Decision 2001Da43938, Jun.

(2) Determination

In the reorganization proceedings against the defendant, the claim of the non-party 2 limited liability company, which is a creditor, was confirmed to be KRW 8,572,120,695. The plaintiff, the guarantor, paid part of the claim to the non-party 2 limited liability company, there is no clear dispute between the parties. The plaintiff's repayment of part of the claim to the non-party 2 limited liability company is not possible, and as of August 29, 2002, when the plaintiff issued and delivered new shares under the reorganization plan or the conversion of investment into investment to the non-party 2 limited liability company on August 14, 2002, before the defendant paid the total amount of the claim to the non-party 2 limited liability company, the non-party 2 limited liability company could exercise its right as reorganization creditor against the total amount of the claim to the non-party 2 limited liability company. Since the plaintiff's repayment of the claim to the non-party 2 in proportion to the amount of the claim to the non-party 2 limited liability company or the non-party 2 limited liability company cannot exercise its right to the remaining reorganization claim.

3. Conclusion

Therefore, the plaintiff's primary and conjunctive claims are all dismissed, and they are so decided as per Disposition.

Judges Kim Jong-tae (Presiding Judge)