New Co., Ltd. (Law Firm Chungcheong, Attorneys Lee Jong-ok et al., Counsel for the plaintiff-appellant)

Lee Man-Il Pumlet Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Kang Seo-sung et al., Counsel for the defendant-appellant

KB Real Estate Trust Co., Ltd. (former Real Estate Trust Co., Ltd.) (Law Firm Sejong, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na72342 Delivered on July 5, 2002

The plaintiff's appeal is dismissed.

Of the costs of appeal, the supplementary intervenor bears the remainder of the costs of appeal, and the Plaintiff bears the remainder.

1. Determination on grounds of appeal Nos. 1 and 2

The right to set aside under the Company Reorganization Act is a special system under the Company Reorganization Act, which is recognized to restore the company's assets illegally disposed prior to the decision to commence reorganization proceedings and to maintain and restore the company's business, and is entitled to exercise only the custodian under the premise that reorganization proceedings are in progress. Thus, even if the right to set aside has been exercised during the reorganization proceedings, if the reorganization proceedings are terminated prior to the recovery of the company's assets to the company, then the right to claim return of the assets to the other party or to claim redemption of the value thereof shall also be deemed extinguished as the effect of exercising the right to set aside if the reorganization proceedings are terminated in the course of the reorganization proceedings, so the right to claim return of the assets to the other party or to claim redemption of the value thereof shall also be deemed extinguished (see Supreme Court Decision 95Da30253, Oct. 13, 19

In light of the record, the court below dismissed the claims of the receiver in this case under the Company Reorganization Act on the ground that the comprehensive construction company in time of reorganization company (the next year from the date of the merger) entered into a security trust agreement to transfer the ownership of each of the real estate in trust to the defendant company in order to secure obligations arising from credit transactions of the reorganization company, New Yong Co., Ltd. (the next year from the date of the merger), and completed the registration of ownership transfer to the defendant in accordance with the contract, the comprehensive construction was incorporated into New Co., Ltd. (the next year from the date of the merger) and the administrator of New Co., Ltd after the merger filed a claim in this case to deny the act on the ground that the comprehensive construction in time constitutes gratuitous act, and the administrator filed an appeal. The court below's decision was made to terminate the company reorganization procedure for the new Co., Ltd. on June 15, 2004, which continued in the court of final appeal.

In such a situation, according to the above legal principles, the qualification of the custodian was extinguished by the decision of the completion of the company reorganization procedure for New Coins after the merger, and at the same time the avoidance power, which is the premise of the main claim of this case, has

The judgment of the court below on the plaintiff's primary claim claim is different from its grounds, but its conclusion that did not recognize the avoidance power is legitimate, and there is no error in the misapprehension of the evidence law that affected the judgment, misunderstanding of legal principles, or incomplete hearing.

2. Determination on the third ground for appeal

A trust under the Trust Act refers to the legal relationship that a truster transfers a specific property right to a trustee to a trustee or takes other dispositions, and has the trustee manage and dispose of such property right for the benefit of the beneficiary or for a specific purpose. Thus, where a truster concludes a trust agreement with the trustee to provide security for the obligation, and grants the creditor preferential right to the trust principal, and thereby completing a registration of ownership transfer based on the trust in the future, the ownership of the trusted real estate belongs to the trustee pursuant to the trust of the truster. Where a company reorganization procedure for the truster has commenced for the truster, the right to benefit from the trusted real estate held by the creditor falls under the "security provided by a person other than the reorganization company for the reorganization creditor or security holder" under Article 240 (2) of the Company Reorganization Act and thus, even if the creditor fails to report within the period of report of the reorganization claim, the forfeited right is limited to the reorganization claim or security held by the truster, and there is no influence on the right to benefit from the trust held by the trustee (see Supreme Court Decision 2003Da168738, May 27, 20008, 2003).

In this case, even though the two-use loans reported the preferential right to benefit as a security under the trust agreement of this case, and the administrator did not file a lawsuit for confirmation of the security within one month after raising an objection against the security, the preferential right to benefit to the defendant company of the two-use loans shall not be affected by the company reorganization procedure. Thus, the court below's rejection of the plaintiff's preliminary claim on the premise that the preferential right to benefit to the defendant company of the two-use loans has been forfeited due to the failure to implement the procedure for confirmation of the security, is just in accordance with the above legal principles, and there were no errors by misapprehending the legal principles on Article 240 (2)

3. Conclusion

Therefore, each of the grounds of appeal by the plaintiff is dismissed, and the costs of appeal are assessed against the supplementary intervenor in co-litigation. The remaining parts are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)