[1] The scope of "free act" under Article 78 (1) 4 of the Company Reorganization Act

[2] The case holding that the exercise of avoidance power by the reorganization company is recognized on the ground that the act of guarantee constitutes "free act under the Company Reorganization Act"

[1] The "free act" under Article 78 (1) 4 of the Company Reorganization Act refers to any act that reduces the company's active property without compensation or increases the company's debt which is a small property without compensation. In addition to acts such as exemption of debt, such as waiver of right, waiver of right, acts such as confirmation of claim, etc., the reorganization company's guarantee and provision of security on behalf of others unless the reorganization company receives economic benefits as consideration for such act.

[2] The case holding that since the guarantor acquires the right to indemnity in the future when the guarantor performs the guaranteed obligation, such right to indemnity cannot be viewed as an economic interest in consideration for the disadvantageous act that the person who bears the obligation to be attributed to another person as a right to claim reimbursement against the other person, which is an act of guarantee itself, and thus cannot be viewed as an act of providing a guarantee, it cannot be viewed as an act of giving a consideration to the guarantor, and where the guarantor recognizes the exercise of the right to set aside against the guarantee or the act of providing a security before reorganization, it cannot be denied that there is room for unexpected damages to the creditor (the other party to the act of guarantee), on the other hand, it is obvious that the act of guarantee by the company before reorganization infringes on the interests of other reorganization creditors and it goes against fairness, and Article 78 (1) 4 of the Company Reorganization Act recognizes it to the reorganization company only after the suspension of payment, etc. or within six months prior to such an act of providing a guarantee under certain restrictions as above.

[1] [2] Article 78 (1) 4 of the Company Reorganization Act

Han Integrated Finance Co., Ltd. (Attorney Sung-sung, Counsel for the defendant-appellant)

The manager of the Amateur Motor Corporation (Law Firm, Kim & Lee, Attorneys Lee Hon et al., Counsel for the plaintiff-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The plaintiff shall confirm the reorganization claim of the amount of KRW 70,560,621,07, based on the promissory note stated in the attached Form, against the Young Automobile Corporation of the liquidation company.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence Nos. 2, 4, and 2 in full view of the whole purport of the pleadings, and there is no counter-proof.

A. On February 23, 1996, in order to cover the short-term operating fund, Nonparty Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) entered into a bill transaction agreement with the Plaintiff on the rate of KRW 66,00,000 with the limit of KRW 66,00,000 with respect to the bill discount and other bill transaction.

B. On May 29, 197, Nonparty A Automobile Co., Ltd. (hereinafter referred to as “the company prior to the reorganization”) signed and sealed a blank bill (14037915) issued by the Plaintiff on the front of the bill issued by the Plaintiff at around that time in order to guarantee the obligation pursuant to the said bill transaction agreement with the Plaintiff of the non-party company, and signed and sealed the blank bill (14037915) as the guarantor on the certificate of granting the right to supplement the bill. There was no monetary payment from the non-party company at that time (the plaintiff did not receive any monetary payment from the non-party company in relation to the above guarantee (after that, the plaintiff was then paid the blank bill at face value, which was supplemented by the date of May 18, 1998, but was rejected on May 18, 1998).

C. Meanwhile, on October 24, 1997, the company prior to reorganization filed an application for commencement of the company with the Seoul District Court, and the decision of commencement of the company reorganization was rendered on April 15, 1998 by the above court. The plaintiff reported the reorganization claim of promissorysory note amounting to KRW 70,560,621,07, which is the guarantor of the non-party company prior to reorganization, as a guarantee bond of the non-party company prior to reorganization because the non-party company was unable to repay loans, etc. under the bill transaction agreement within the reporting period of the reorganization claim, but the defendant raised objection against it on June 10 of the same year.

2. The assertion of the parties and their determination

A. The plaintiff's assertion

Before reorganization, a company is obligated to pay KRW 70,560,621,077 of the Promissory Notes to the Plaintiff as a guarantor of a company other than the decline in accordance with the Agreement on Transactions of Promissory Notes. Thus, the Plaintiff is confirmed as having a reorganization claim for the Promissory Notes amounting to KRW 70,560,621,07 against the non-party reorganization company (hereinafter referred to as the "resolution company").

B. Defendant’s assertion

On May 29, 1997, which was six months prior to the filing of an application for commencement of the company's reorganization proceedings with the Seoul District Court (O. 24, 1997), the company guaranteed the non-party company's obligation of promissory notes against the plaintiff pursuant to the bill transaction agreement of this case without receiving any consideration from the non-party company, and such guarantee constitutes "free act under Article 78 (1) 4 of the Company Reorganization Act", and thus, the defendant exercises the right to set aside under the above law against the plaintiff.

(c) Markets:

We examine the defendant's assertion on the right to set aside.

(1) The "free act" under Article 78 (1) 4 of the Company Reorganization Act refers to any act that reduces the company's active property without compensation or increases the company's debt which is a small property without compensation, and it shall include a guarantee and a security provided for another person, even though the reorganization company does not receive economic benefits as consideration for such act, such as exemption of debt, waiver of right, act such as acceptance of claim, etc.

A guarantor acquires a right to indemnity in the future, but such right to indemnity in the future is a right to seek reimbursement from another person on behalf of the person who bears the obligation to be attributed to him/her, and cannot be seen as an economic benefit as consideration for the disadvantageous act of guarantee itself. Therefore, a guarantor cannot be deemed as an act of providing a guarantee solely on the fact that he/she has a right to indemnity in the future.

In addition, it cannot be denied that there is room for unexpected damages to the creditor (the other party to the act of guarantee) where the right to set aside against the guarantee or the act of offering security by the company prior to reorganization is recognized. However, it is also clear that the act of guarantee, etc. by the company prior to reorganization infringes on the interests of other reorganization creditors and the act of leaving such act neglected is contrary to fairness. It is understood that Article 78(1)4 of the Company Reorganization Act recognizes the right to set aside against the reorganization company only for gratuitous act performed within six months prior to the suspension of payment, etc. in order to mediate conflicts of interest or within the previous six months. Therefore, even if the act of guarantee, etc. is included in gratuitous act, it is not considered that such act of guarantee, etc. is included in the above-mentioned limited act, it would impair the

(2) In this case, as acknowledged earlier, the company prior to reorganization had guaranteed the obligation of promissory notes to the plaintiff of the non-party company pursuant to the bill transaction agreement of this case without receiving any monetary payment from the non-party company on May 29, 1997, which was six months prior to filing an application for the commencement of reorganization proceedings, and such guarantee act constitutes "free act performed within six months prior to the suspension of payment" under the above law. Thus, the defendant may deny it (the plaintiff), since the time when the company prior to reorganization guarantees the obligation of promissory notes of the non-party company pursuant to the bill transaction agreement of this case, the company prior to reorganization claims that it is six months prior to filing an application for the commencement of reorganization proceedings of the company, or there is no evidence to acknowledge it).

3. Conclusion

Thus, the plaintiff's claim of this case based on the premise that the defendant bears the guaranteed obligation against the plaintiff under the bill transaction agreement of this case is without merit, and it is so decided as per Disposition.

Judges Park Yong-ran (Presiding Judge)