In order for a rehabilitation security right to be recognized as a rehabilitation security right, whether it is sufficient if a security right, such as a lien, exists in the debtor's property at the time of commencement of the rehabilitation procedure (affirmative), and whether the rehabilitation security right is also extinguished in the rehabilitation procedure (negative)

The main text of Article 141(1) of the former Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 10366, Jun. 10, 2010) provides that “The scope of a right of retention, pledge, mortgage, security by means of transfer, provisional registration, right to lease on a deposit basis, or preferential right existing in the debtor’s property at the time the rehabilitation procedures commence, which is a property claim against any person other than the debtor incurred prior to the commencement of rehabilitation procedures, shall be a rehabilitation security right.” Therefore, in order to be recognized as a rehabilitation security right, it is sufficient that a right of retention, etc. exists in the debtor’s property at the time the rehabilitation procedures commence, and even if a security right under the substantive law

Article 141(1) of the former Debtor Rehabilitation and Bankruptcy Act (Amended by Act No. 10366, Jun. 10, 2010)

KS Construction Co., Ltd. (Law Firm Gyeongpyeong et al., Counsel for the plaintiff-appellant)

A two-party automobile company (Law Firm Sejong, Attorneys Lee Young-gu et al., Counsel for the defendant-appellant) which is a joint management of a two-party automobile company, which is a joint management of the rehabilitation company

Seoul High Court Decision 2011Na92611 decided September 13, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The main text of Article 141(1) of the former Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 10366, Jun. 10, 2010) provides that “The scope of a right of retention, pledge, mortgage, security by means of transfer, provisional registration, right to lease on a deposit basis, or preferential right existing in the debtor’s property at the time the rehabilitation procedures commence, which is a property claim against any person other than the debtor incurred prior to the commencement of rehabilitation procedures, shall be a rehabilitation security right.” Therefore, in order to be recognized as a rehabilitation security right, it is sufficient that a right of retention, etc. exists in the debtor’s property at the time the rehabilitation procedures commence, and even if a security right under the substantive law

The court below determined that the rehabilitation security right is not a security right under the Civil Act or the Commercial Act, but a claim secured by a security right, which is not a security right under the substantive law, and its existence is determined at the time of commencement of rehabilitation procedures. Thus, the court below determined that the issue of whether the plaintiff has a rehabilitation security right as a lien holder for the factory of this case should be determined at the time of commencement of rehabilitation procedures, and barring special circumstances

The above determination by the court below is just in accordance with the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the requirements for rehabilitation security rights.

2. Regarding ground of appeal No. 2

원심은, 원고가 2009. 1. 14.경 이 사건 공사를 중단하기로 방침을 세우기 전까지 이 사건 공사계약의 목적물인 이 사건 공장을 수급인인 원고가 점유하고 있었던 점, 원고가 2009. 1. 23.경 쌍용자동차 주식회사(이하 ‘쌍용자동차’라고 한다)에 이 사건 공장에 대한 유치권을 행사할 것임을 통지하고, 2009. 1. 29.경부터 쌍용자동차와의 분쟁에 대비하여 이 사건 공장의 주 출입구에 유치권 행사 중임을 알리는 팻말을 설치한 점, 원고가 이 사건 공사를 위해 설치된 현장사무소를 유지하면서 기존의 공사장비와 자재를 이용하여 2009. 3.경까지 이 사건 공장 외벽의 유리창 및 자동출입문 설치공사 등의 추가보완공사를 계속해 온 점 등을 비롯한 그 판시와 같은 사정을 종합하여 보면, 원고는 적어도 회생절차개시결정일인 2009. 2. 6.까지는 이 사건 공장에 대한 점유를 상실하지 않고 계속 유지하고 있었다고 봄이 상당하다고 판단하였다.

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or in the misapprehension of legal principles as to the requirements for establishment

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)