Cement Co., Ltd. (formerly changed: East Cement Co., Ltd.) (Attorney Kim Jong-hun, Counsel for defendant-appellant)

Defendant Counterclaim Plaintiff and two others (Law Firm Hun-Ba, Attorneys Lee Jong-ho et al., Counsel for the plaintiff-appellant)

June 28, 2017

1. It is confirmed that there is no unpaid benefits, retirement allowances, and rehabilitation claims for each of them that occurred from retirement on March 15, 2013 against the Plaintiff (Counterclaim Defendant) of the Defendant (Counterclaim Plaintiff) did not exceed the money stated in paragraph (2).

2. The Plaintiff (Counterclaim Defendant) pays 147,104,155 won to the Defendant (Counterclaim Plaintiff) 1, and 101,540,883 won to the Defendant (Counterclaim Plaintiff) 2, and 100,164,697 won to Defendant 3, and 5% per annum from April 16, 2013 to August 23, 2017, and 15% per annum from the next day to the date of full payment.

3. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining claims of the Defendant (Counterclaim Plaintiff) are all dismissed.

4. Of the total litigation costs, 50% of the total litigation costs shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

5. Paragraph 2 can be provisionally executed.

[Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s retirement from office on February 26, 2013 against the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) is confirmed as follows: (i) Defendant 1-294,208,310 won; (ii) Defendant 203,081,767 won; and (iii) Defendant 3-200,329,395 won; and (iv) Defendant 3-200,329,395 won; and (iii) Defendant 3-200,329, and damages for delay are not nonexistent.

[Counterclaim] The Plaintiff shall pay to Defendant 1 294,208,310 won, and to Defendant 203,081,767 won, and to Defendant 3 200,329,395 won per annum from April 16, 2013 until the service date of a copy of the application for purport of the counterclaim and modification of the cause of the counterclaim, and 15% per annum from the following to the day of full payment.

1. Basic facts

A. On March 17, 2010, the Defendants filed a lawsuit seeking the payment of a retirement allowance (Seoul Central District Court 2013Gahap25694, hereinafter “previous lawsuit”) with those who were appointed as the Plaintiff’s director and were dismissed on March 15, 2013 by a resolution of the Plaintiff’s general meeting of shareholders, and (2) wages and (3) week against the Plaintiff on April 2, 2013.

B. On October 17, 2013, the rehabilitation procedure (Seoul Central District Court 2013 Ma195) commenced against the Plaintiff, and the instant rehabilitation plan was approved on March 18, 2014. Thereafter, the Plaintiff was decided to discontinue the rehabilitation procedure on March 6, 2015.

C. The contents pertaining to this case in the instant rehabilitation plan are as follows.

본문내 포함된 표 제2장 회생계획안의 요지 제3절 권리변경과 변제방법의 요지 3. 미확정채권의 권리변경과 변제방법 채권조사확정재판 또는 이의의 소 및 기타 소송에 의하여 회생담보권 또는 회생채권으로 확정되었을 경우에 그 권리의 성질 및 내용에 비추어 가장 유사한 회생담보권 또는 회생채권의 권리변경 및 변제방법에 따라 변제하는 것으로 하였습니다. 〈단서 생략〉 4. 미확정채권의 현실화 예상금액 이하로 확정되는 경우의 권리변경과 변제방법 회생계획안 인가 이후 조사확정재판 또는 이의의 소 및 기타 소송이 원 회생계획의 미확정채권의 현실화 예상금액 이하로 확정되는 경우 확정된 금액으로 변제하는 것으로 하며 추가 변제는 없는 것으로 하였습니다. 제3장 회생담보권 및 회생채권의 권리변경과 변제방법 제1절 총칙 1. 용어의 정의 ● ‘특수관계인’이라 함은 채무자 회생 및 파산에 관한 법률 시행령 제4조 등에 해당하는 자로 소외 1, 소외 2, 소외 3, 소외 4, 소외 5, 소외 6, 소외 7, 소외 8, 소외 9, 소외 10, 소외 11, 소외 12, 소외 13, 소외 14, 소외 15, 소외 16, 소외 17, 피고 1, 피고 2, 피고 3[피고들], 소외 18 등 개인과, ㈜동양, …… 등 계열회사를 말한다. 제3절 회생채권의 권리변경과 변제방법 9. 회생채권 특수관계인 채무 나. 권리의 변경 및 변제방법 (1) 원금 및 개시 전 이자 ① 소외 1, 소외 2, 소외 3, 소외 4, 소외 5, 소외 6, 소외 7, 소외 8, 소외 9, 소외 10, 소외 11, 소외 12, 소외 13, 소외 14, 소외 15, 소외 16, 소외 17 등 특수관계개인 시인된 원금 및 개시 전 이자의 전액을 면제합니다. ② 소외 18(관리인) 시인된 원금 및 개시 전 이자 전액을 면제합니다. ③ 동양자산운용㈜ 시인된 원금 및 개시 전 이자의 50%를 면제하고 50%를 현금으로 변제하되, 변제할 채권은 제9차연도(2022년)에 100%를 변제하는 것으로 하였습니다. ④ 골든자원개발㈜, ㈜동양, 동양네트웍스㈜, ㈜동양매직, ㈜동양매직서비스, 동양증권㈜, ㈜동양생명과학 등 기타 특수관계법인 채무 시인된 원금 및 개시 전 이자의 50%를 면제하고 50%를 현금으로 변제하되, 변제할 채권은 제5차연도(2018년)부터 제10차연도(2023년)에 걸쳐 5%, 5%, 5%, 5%, 30%, 50%를 순차로 변제하는 것으로 하였습니다. (2) 개시 후 이자 개시 후 이자는 전액 면제합니다. 제6절 미확정 회생담보권·회생채권 및 부인권 행사로 부활될 회생채권의 처리 1. 미확정 회생담보권 및 회생채권 나. 2014. 3. 3. 현재 채무자회사가 소송의 당사자로 계류 중인 민사본안 소송사건은 총 5건이며 그 현황은 다음과 같다. 당사자(원고) 청구금액 현실화가능액 관할법원 사건번호 사건명 피고 1 외 2명 697,619,472 348,809,736 서울중앙지방법원 2013가합25694 약정금 등 〈이하 생략〉 2. 미확정 회생담보권 및 회생채권의 권리변경과 변제방법 가. 위 1항의 미확정 채권이 회생담보권 또는 회생채권으로 확정될 경우 그 권리의 성질 및 내용에 비추어 가장 유사한 회생담보권 또는 회생채권의 권리변경 및 변제방법에 따라 변제한다. 라. 회생담보권 및 회생채권의 조사확정재판이나 이의의 소, 기타 소송 등에 의하는 채권 이외에 미확정채권이 회생담보권 또는 회생채권으로 확정되는 경우에는 법원의 허가를 받아 권리변경 및 변제방법을 정한다.

D. According to the commencement of the rehabilitation procedure in this case, the Defendants changed the purport of the claim into seeking confirmation of the rehabilitation claim in the previous lawsuit. On June 12, 2014, the first instance court rendered a judgment in favor of the Defendants that accepted the part of the unpaid benefit claim and rejected the part of the unpaid retirement benefit claim (Seoul High Court 2014Na37387). Accordingly, both parties appealed (Seoul High Court 2014Na3787). The appellate court accepted the Defendants’ assertion as to the unpaid retirement benefit claim on January 8, 2016, and rejected the Defendants’ assertion as to the unpaid retirement benefit claim, and the appellate court dismissed the appellate court’s judgment that “Defendant 1 was 294,208,310 won, Defendant 2, and Defendant 3 was 203,081,767 won, and Defendant 3 was 200,329,395 won, and each of them was 200,016Da261616.”

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 8, purport of whole pleadings

2. The parties' assertion

A. The plaintiff

Article 6 Section 2 of Chapter III of the instant rehabilitation plan provides that if an undeterminedable claim is confirmed as a rehabilitation claim through a lawsuit, the repayment shall be made according to the method of changing the right to the rehabilitation security right and the rehabilitation claim, in light of the nature and content of the right.

Meanwhile, the Defendants’ former officers constituted a specially related person stipulated in Section 1, Section 1, Section 3 of Chapter III of the instant rehabilitation plan, and thus, the Defendants’ rehabilitation claims established through the previous lawsuit are most similar to the claims, nature and contents of the claims against the Plaintiff by an individual specially related person. Therefore, the Defendants’ rehabilitation claims were fully exempted pursuant to Section 3, Section 9 of Chapter III of the instant

B. The Defendants

Since the Defendants already lost their status as an officer at the time of commencement of rehabilitation procedures, they do not constitute a specially related person under Article 4 of the Enforcement Decree of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). Furthermore, although the Defendants were registered as the Plaintiff’s officer, the actual status is limited to the degree of employee of the executive class. As such, the Defendants’ rehabilitation claims should be paid in full in proportion to the nature and content of the employees

3. Determination

In light of the following points, the defendants' rehabilitation claims shall be exempted from 50% of the principal amount finalized in the previous lawsuit, and the repayment method shall be determined by 50%.

① Under Article 218(2) of the Debtor Rehabilitation Act, exceptions to the principle of equality as to the terms and conditions of the rehabilitation plan allow unfavorable treatment to specially related persons. Article 4 Subparag. 2(a) of the Enforcement Decree of the Debtor Rehabilitation Act provides that “a person who is an executive” is one of the “specially related persons” (hereinafter referred to as “specially related persons”). The base point at which the person becomes a specially related persons should be determined at the time of the commencement of rehabilitation procedures, barring any special circumstance, such as transfer of claims to be disadvantageously treated in the rehabilitation plan prior to the commencement of rehabilitation procedures, with the aim

However, inasmuch as the Defendants were dismissed from officers on March 15, 2013, which was seven months prior to the commencement of the rehabilitation procedure in the instant case, the Defendants cannot be deemed as a specially related person of the Plaintiff.

(2) The reason for permitting a person with special interest, such as an executive, to treat claims against another rehabilitation claim in the rehabilitation procedure is that the equity is not undermined even if a person with special interest, such as an executive, etc., suffers from losses to other creditors due to a wrongful act committed by a person with special interest, such as providing a cause for financial failure by engaging in a poor management of a debtor.

However, unlike other individuals who are specially related parties as stipulated in the instant rehabilitation plan, the Defendants were unfairly dismissed before the commencement of the instant rehabilitation procedure seven months prior to the commencement of the rehabilitation procedure, and there is no clear circumstance to deem that the Defendants provided the cause of the Plaintiff’s financial failure. Accordingly, it is difficult to view that the Defendants’ rehabilitation claim is similar to the claims, nature, and content of the claims of other specially related parties.

Ultimately, as alleged by the Plaintiff, “the most similar rehabilitation claim in light of the nature and content of the rights” provided for in Section 2-A of Section 6 of Section 2 of Section 3 of the instant rehabilitation plan cannot be deemed as a personal rehabilitation claim of a related party provided for in Section 3-9 of Section 3 of the instant rehabilitation plan.

③ Meanwhile, the Defendants asserted that the Defendants’ rehabilitation claims are most similar to the employees’ wage and retirement allowance claims. However, according to Section 6(1) of Chapter III of the instant rehabilitation plan, in the event the undetermined rehabilitation claims become final and conclusive in a lawsuit, etc., the Defendants are obliged to repay according to the method of alteration and repayment of the rights most similar in light of the nature and content of the rights. Therefore, in light of social policy factors, the Defendants’ wage and retirement allowance claims, and the Defendants’ wage and retirement allowance claims, which are treated as public-interest claims, cannot be compared. In addition, it is difficult to find any rehabilitation claims similar to the Defendants’ rehabilitation claims and their nature

(4) However, it is deemed that the provisions of Section 3(4) of Chapter II of the instant rehabilitation plan may apply or apply mutatis mutandis to this case.

The purport of the above provision is that “if a lawsuit concerning an unregistered claim becomes final and conclusive after authorization of a rehabilitation plan is granted below the expected amount of realization under the rehabilitation plan, repayment shall be made, and any additional repayment shall not be made.” This can be interpreted to have been made with respect to the rehabilitation claims finalized through a lawsuit after authorization of the rehabilitation plan within the limits of the expected amount of realization, but the amount exceeding the amount shall be exempted. Furthermore, since the amount equivalent to 50% of the claim amount is indicated as the estimated amount of realization (realization amount) only for the claims of the Defendants among the undetermined claims under the rehabilitation plan of this case, the above provision can be the basis for the alteration of the rights to the rehabilitation claim and the method of repayment by the

Meanwhile, in cases where an unregistered claim is determined in excess of the expected amount of realization, there is no separate provision on the alteration of the right and the method of repayment. However, in cases where the amount of rehabilitation claim finalized through a lawsuit exceeds the expected amount of realization, the necessity to protect the rehabilitation creditor cannot be said to be smaller than the case where the amount of rehabilitation claim is below the expected amount of realization. Therefore, it is reasonable to interpret the said provision by analogy to the extent that the remainder is discharged and repaid within the expected amount

4. Conclusion

The Plaintiff owes a duty to pay money to Defendant 1, 147,104,155 won (=294,208,310 won x 1/2) x Defendant 2 101,540,883 won (=203,081,767 won x less than KRW 1/2, and less than KRW 1/2 shall be discarded; hereinafter the same shall apply) 100,164,697 won (=200,329,395 x 1/2) x 1/2) and each of them, which is deemed reasonable to dispute over the existence or scope of the Plaintiff’s performance obligation from April 16, 2013 to August 23, 2017 under the Civil Act, and to pay money at the annual rate of 15% as provided for in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

In addition, since the Defendants are dissatisfied with the claim against the Plaintiff beyond the above recognition scope, there is a benefit to confirm the absence of the Defendants’ claim amount as to the exceeding part.

The plaintiff's main claim and the defendants' counterclaim are partly accepted within the scope of the above recognition.

The Prosecutor's Reinforcement (Presiding Judge)

(1) On March 15, 2013, the Defendants retired from office by a resolution of the Plaintiff’s general meeting. The above date is deemed to be a clerical error in March 15, 2013.

Note 2) Defendant 1: 27,00,210 won; Defendant 2:23,529,207 won; Defendant 3:23,210,315 won

3) Defendant 1: 267,208,100 won, Defendant 2: 179,552,560 won, Defendant 3: 177,119,080 won

(4) The Plaintiff’s “the provision on the payment of retirement allowances for officers”, which is the basis of the Defendants’ claim for retirement allowances, provides that “no retirement allowance shall be paid in the event that the Defendants retire due to their own causes attributable to them.” The main issue was discussed in the previous lawsuit. The appellate court of the previous lawsuit held that “the Defendants’ failure to perform or invest in the energy business sector, which the Defendants received, cannot be deemed to have caused the Defendants’ intentional fault, negligence, or lack of management capacity,” and it does not appear that there were any other causes attributable to the Defendants. Rather, the appellate court determined that the Defendants’ dismissal was the primary purpose of “the same group to which the Plaintiff belongs to deprive the Defendants of management rights agreed to pay to the Defendants”

5) Of the five civil merits cases referred to in Section 1-b of Chapter 3, Section 6, Section 1-b of the instant rehabilitation plan, the feasible amount was not stated in the other four cases except the previous cases. In fact, the Plaintiff appears to have won all the above four cases (the Plaintiffs’ claim in the instant case was dismissed).