[Plaintiff-Appellant] 1 and 142 others (Law Firm Hank, Attorneys Lee Ho-soo et al., Counsel for plaintiff-appellant-appellant)

New Co., Ltd.

Domination

Seoul District Court Order 98Ma5995 dated December 30, 2003

All of the instant appeals are dismissed.

1. Basic facts

According to records, the following facts are recognized.

A. The reorganization company is a distribution company that operates department stores, leases, etc., and received a decision to commence reorganization proceedings on November 16, 1998 from the court below, and was decided to authorize reorganization programs (hereinafter “ reorganization programs”) on December 3, 199.

B. In light of the business performance and financing flow of the reorganization company, the receiver of the reorganization company anticipated that it would be difficult to repay the normal debt under the reorganization plan since 2003, and promoted M&A (third party acquisition) for the early normalization of the management of the company and the rehabilitation of the company on December 5, 2003, entered into an investment contract with the consortium at E-U.S. on December 5, 2003, and submitted a revised reorganization plan with a major content of the repayment of the reorganization company's debt at the time of the reorganization company's temporary meeting held on December 30, 203. The above revised plan was approved with the consent of 92.57% of the reorganization company's security holder and 70.39% of the reorganization company's reorganization company's reorganization company's reorganization company's reorganization plan at the meeting of interested persons held on December 30, 203, and the court below decided to authorize the above revised plan (hereinafter "revision plan").

C. The appellant is a reorganization creditor, security holder for lease deposit, commercial security holder, reorganization creditor, related company reorganization creditor, related company reorganization creditor, related party, and shareholders who are adversely affected by a change plan.

2. Summary of grounds for appeal;

The appellant asserts that the order of the court below that the modified plan should be revoked because of the following errors: (a) at the end of each of the grounds for appeal, the appellant stated that the plan should be revoked. (b)

A. Absence of reasons for change of reorganization program

After the approval of the reorganization plan is decided, the modification of the reorganization plan is permitted only when there is a need to modify the matters prescribed in the plan due to unavoidable reasons (Article 270(1) of the Company Reorganization Act), and there is no need to modify the reorganization plan for the reorganization company (a reorganization creditor of lease deposit).

(b) procedural illegality in the decision to authorize a revised plan;

(1) On December 18, 2003, the court below decided the date of meeting of interested parties for the deliberation and resolution of the revised plan, and notified interested parties of the date of meeting on the 22th day of the same month after the date of meeting. This violates the ordinary practice of making a decision to designate the date two to three weeks prior to the date of meeting of interested parties and giving immediate notice of the date, and thereby, there are many reorganization creditors attending the meeting without being notified of the date of meeting or being given sufficient consideration of the revised plan, and thus, the resolution of approval of the revised plan was unlawful as the method of resolution is not bona fide and fair (leased reorganization creditor).

The proviso of Article 270 (2) of the Company Reorganization Act provides that "a person who has consented to the previous plan and fails to attend the meeting of interested persons to make a resolution on the amendment plan shall be deemed to have consented to the amendment plan." The above deemed provision does not apply to "a case where a person who has consented to the previous plan and who has acquired the bonds of B, or who has not originally been a creditor, has acquired the bonds of B, which have consented to the previous plan," and the court below calculated the number of resolution by deeming the non-existent person as the consent of all creditors without confirming whether there is a creditor who has not been considered as the consent even if he has been absent as above, and without stating the fact that if he has been absent, it may be deemed to have consented to the amendment plan, there is an error of law that has passed the amendment plan without recognizing the legal effect that may occur in the absence of multiple creditors and without attending the meeting.

In addition, the above provisions of the Company Reorganization Act are unconstitutional laws that may infringe on property rights and right to self-determination, which are fundamental rights guaranteed by the Constitution.

Secondly, since the nature of the reorganization claims of financial institutions differs from those of the reorganization claims of financial institutions, it is required to adopt a separate resolution under Article 1 of the Commercial Act. It is unlawful that the reorganization plan has been adopted in accordance with the intent of creditors of financial institutions with many voting rights by classifying commercial creditors and financial institution creditors as one reorganization creditor

x) Although the change plan has a disadvantage to the shareholders, the meeting of interested persons did not examine and resolve the change (shareholders).

(c) the change plan is against its fairness and equality;

(1) The reorganization creditor, security holder, and reorganization creditor, in accordance with the reorganization plan, will be paid only 20% of the principal amount of the lease deposit. However, the reorganization creditor, prior to the approval of the reorganization plan, has already been paid 45% of the principal amount under the original reorganization plan, and finally is paid 54% of the principal amount of the claim. This is against Articles 28(1) and 229 of the Company Reorganization Act that the conditions of the reorganization plan should be equal to those of the parties having the same nature of the claim, and that there should be fair and equitable distinction between the parties having the other nature of the claim (a security holder, reorganization creditor).

D. The plan to amend the Complement is set forth as 20% of the principal of the leased security as seen above, whereas the National Housing Fund security provides that the principal and interest shall be fully repaid in accordance with the original agreement. This is against the principle of equality under Article 229 of the Company Reorganization Act (a security holder of leased security deposit).

Article 22(1) of the Civil Act provides that a security holder of a lease deposit or a reorganization creditor who maintains a lease contract relationship for the rehabilitation of the company shall have the right of preferential sale when compared to the collection of all the deposit by the lessee who terminated the lease contract in advance, and a security holder of a lease deposit who completed the registration of establishment of a lease has the right of preferential sale.

In accordance with the change plan, the lease security holder whose lease term expires after 14 years from December 31, 2003 shall be paid an amount equivalent to the liquidation value of each secured object from the present value of the lease security claim applying the discount rate of 10.84% as of December 31, 2003.

(v) According to a change plan, the reorganization company shall pay only 20% of the existing lease deposit, and 80% of the lease deposit shall obtain the lease deposit by re-lease after being exempted, so it is unreasonable to obtain unjust enrichment equivalent to the amount obtained by subtracting 20% of the existing lease deposit from the new lease deposit (a reorganization creditor, reorganization security holder).

⑹ 대여금채권 정리담보권의 면제율은 22%에 불과하고, 대여금채권 정리채권의 면제율은 87%이나 대부분 대여금채권 정리담보권과 채권자의 지위가 중복되므로 채권자를 기준으로 하면 면제율이 그보다 훨씬 낮아지는데 비하여 상거래채권 정리채권의 면제율은 80%나 되고, 변경계획은 원 정리계획과 비교할 때 상거래채권자에게 지나치게 불리하여 공정, 형평에 반한다(상거래채권 정리채권자).

⑺ 1억 원을 초과하는 상거래채권 원금의 81%를 출자전환하는 것은 사실상 채무를 면제하는 것이나 다름없어 부당하다(상거래채권 정리채권자).

⑻ 관계회사의 상거래채권 정리채권 총액은 41,954,106,822원인데 228,932,381원으로 부당하게 감소되었고, 원 정리계획에 따른 변제가 전혀 이루어지지 않다가 변경계획에서 채권액의 20%만을 변제하도록 한 것은 형평에 반하며, 대주주, 관계회사 및 특수관계인의 구상권을 전액 면제한 것 역시 공정, 형평에 반한다(관계회사, 특수관계인).

3. The judgment of this Court

(a) Whether the grounds for modification of the reorganization program exist;

"Inevitable reasons" to revise a reorganization plan include the sudden change of the economic situation, reduction of the operating income, and poor progress in sales performance, and "necessary to revise the reorganization plan" means cases where it is impossible or considerably difficult to perform all or part of the reorganization plan, and where it is possible to avoid such situation if the plan is modified. According to the records, the reorganization company failed to repay 50% of the principal of commercial transaction claims to be repaid under the reorganization plan in 2002 due to the decrease of the operating income. From 2003, it is necessary to pay 30 billion won or more of the principal and interest of the reorganization claim, but it is difficult to repay normal debt when considering the business performance and financing flow of the reorganization company. Therefore, it is determined that the reorganization company needs to modify the reorganization plan to pay the obligation with the acquisition price.

B. Whether procedural illegality exists in the decision to authorize a revised plan

(1) First, there is no special provision regarding the notification period of the date of the meeting of interested parties for the approval of the modification of the reorganization plan under the Company Reorganization Act, and the decision on the designation of the date is made 12 days before the date of the meeting and does not seriously violate the ordinary practical practices asserted by the appellant. Since the consent of the reorganization creditor meeting meeting satisfying the requirements for the approval of the modification plan was obtained at the meeting of interested parties, the appellant’s assertion that the notification period was excessive and did not reach a resolution in good faith and fair manner

D. In addition, in the records, it is difficult for the court below to find out data on the calculation of the number of votes by deeming the reorganization creditors who are not subject to the provision regarding the agreement among the non-Appearances in the meeting of interested parties, and it does not require the person who consented to the original reorganization plan under the Company Reorganization Act to notify the content of the provision regarding the agreement under Article 270(2). Thus, there is an error in the calculation of the number of votes by deeming the consent, or the omission of the content concerning the determination of consent in the meeting guidance is without merit

In addition, the provision regarding the above consent is a public interest provision established for prompt and efficient reorganization and reorganization of the reorganization company by more facilitating the modification of the reorganization plan, and where the person who agreed to the previous plan does not attend the meeting of interested parties for the resolution of the alteration plan, it is based on the principle of reasonable interpretation that no objection may be raised to the alteration plan, and it is not a provision that infringes on property rights or self-determination rights guaranteed by the Constitution.

In practice, it is general to classify reorganization creditor groups into one group, and in this case, it is difficult to view that the court below erred in not classifying the reorganization creditor claims and the reorganization creditor groups of financial institutions into a separate group, and therefore the appellant's assertion in this part is without merit.

Applicant The total amount of the liabilities of the reorganization company at the time of the approval of the revised plan is KRW 1,261,65,52,465, and the total amount of the liabilities of the reorganization company exceeds the total amount of KRW 1,050,338,337,258, and there is no voting right to the shareholders (see Articles 129(3) and 270(2) of the Company Reorganization Act), and there is no reason to believe that it is unlawful for the reorganization company to have not

C. Whether the change plan is against the fairness and equity

(1) The final repayment ratio of a commercial claim is higher than a reorganization claim or security against a lease claim or security. The repayment plan is merely attributable to the repayment of 45% of the principal of a commercial claim prior to the authorization of the alteration plan by setting a grace period for the continued business activities under the original reorganization plan, and the repayment plan is merely attributable to the repayment of 90% of the principal of a commercial claim prior to the authorization of the alteration plan. Whether the alteration plan conforms to the fair and equitable differential principle as stipulated in Articles 228(1) and 229 of the Company Reorganization Act or the principle of equality should be determined on the basis of the repayment plan stipulated in the amendment plan. According to the records, in the alteration plan, all of a lease security or security claim against a lease security or security claim against a commercial claim against it is against the fair and equitable differential principle or the principle of equality. Therefore, the appellant’s assertion in this part is without merit.

The equality of Article 229 of the Company Reorganization Act refers not to formal equality, but to substantive equality that does not go against the concept of fairness and fairness. Thus, the inside of the same security can be differentiated within reasonable scope in consideration of the difference in the nature of rights (see Supreme Court Order 99Da35, Jan. 5, 200). The National Housing Fund is the government that has substantial ownership of funds (Article 62(1) and (2) of the Housing Act) and requires strong protection compared to other claims because the substantial ownership of funds is the government (see Supreme Court Order 9Do35, Jan. 5, 200). Thus, the National Housing Fund is the government that has substantial ownership of funds (Article 62(1) and (2) of the Housing Act) and requires strong protection compared to other claims. Thus, even if the National Housing Fund determines the terms of repayment different from the security deposit, it does not violate the principle of equality. The National Housing Fund's loan expiration date of the National Housing Fund's installment repayment condition in September 29, 2027.

The issue of whether the amendment plan goes against the fairness and equity should be determined in comparison with the terms and conditions of repayment between the rights within the amendment plan. As such, the argument that the repayment ratio of the lease deposit security holders and reorganization creditors subject to the amendment plan is too low when concluding the lease relationship and comparing with the lessee who recovered the lease deposit before the approval of the amendment plan is reasonable, and the security holders of the lease deposit which completed the registration of the establishment of the right of lease cannot be deemed to have the right of preferential sale as a matter of course. In addition, the obligation to specify the provision of the right of preferential sale that does not exist in the original reorganization plan is not reasonable, and the assertion that the amendment plan

In accordance with the plan for alteration, a security shall be preferentially allocated from January 1, 2003 to October 31, 2003 the amount equivalent to the liquidation value calculated by applying the average bid rate for each use of the court auction from January 1, 2003 to October 31, 2003 and the average bid price for each region. However, the amount of principal and interest on the bonds under the original reorganization plan shall be allocated within the limit of the discounted amount by applying the discount rate of 10.84% as of December 31, 203 at the same rate of 10.84% as of December 31, 2003. In the case of the original reorganization plan, it is unreasonable to make a repayment within the limit of the current value at the time applying a certain discount rate to the lump sum repayment. However, in the case of a security for lease, it cannot be said that it would be unreasonable to make a repayment within the limit of the present value of the leased property under the agreement of the lessee immediately after the conversion of the lease deposit into the present value.

(v) even if the object is re-leased after the repayment of the existing lease deposit and the payment of the lease deposit is made under the terms and conditions set out in the change plan, the reorganization company cannot be regarded as unjust enrichment since the repayment of the lease deposit and the change plan for reorganization creditors and reorganization security holders is in breach of the fairness and equity. Therefore, the assertion that the reorganization company exempted 80% of the lease deposit and took unjust enrichment by re-lease the object is without merit.

⑹ 상거래채권 정리채권의 면제율이 대여금 채권 정리담보권의 면제율보다 훨씬 높은 것은 정리채권과 정리담보권의 성질상 차이에서 비롯된 것으로 당연하고, 상거래채권 정리채권을 다른 정리채권보다 우대할 수는 없으며, 상거래채권 정리채권의 변제조건이 다른 정리채권의 변제조건에 비하여 특별히 불리하지도 않으므로, 상거래채권의 면제율이 높아 부당하다는 주장은 이유 없고, 변제조건의 형평성 여부는 개별적인 채권을 기준으로 판단하여야지 채권자를 기준으로 판단할 수는 없으므로, 상거래채권 정리채권자가 정리담보권자의 지위를 겸하고 있는 대여금 채권 정리채권자에 비해 평균적으로 불리한 변제조건을 적용받게 되어 공정, 형평에 반한다는 주장도 이유 없다.

In addition, since it is inevitable to revise the original reorganization plan because it is difficult to implement the original reorganization plan due to the reduction of operating income, the repayment conditions of the revised plan are more unfavorable than those of the original reorganization plan, and its contents are not likely to be unreasonable to the extent that it is against fairness and equity. Therefore, there is no reason to argue that the revised plan goes against fairness and equity because it is excessively unfavorable compared to the original reorganization plan.

⑺ 회사정리법상 출자전환시 그 비율에 대하여는 아무런 제한을 두고 있지 않고, 정리채권의 면제도 허용하는 이상 출자전환의 비율이 낮다고 하여 공정, 형평에 반한다고 볼 수는 없다.

⑻ 기록에 의하면, 관계회사의 상거래채권 정리채권이 감소한 것은 정리회사의 관계회사에 대한 채권과 대등액에 관하여 상계하였기 때문인 점이 인정되므로, 채권이 부당하게 감소되었다는 주장은 이유 없다.

In addition, the repayment ratio of the company's commercial credit under the revised plan is not much unfavorable than that of other company's commercial credit, and the repayment ratio is unfavorable than the original reorganization plan is inevitably modified due to the reduction of operating income, making it difficult to implement the original reorganization plan difficult. Therefore, the argument that the ratio of the company's commercial credit is too low and thus, it is against the fairness and equity is without merit.

In addition, since related parties, such as major shareholders, related companies, etc., are directly and indirectly responsible for the failure of the reorganization company, their claims can be treated more rapidly than other claims. In this case, in light of the circumstances where it is impossible to implement the original reorganization plan due to the lack of financial resources for repayment, and it is inevitable to prepare financial resources for repayment through M&A, and other reorganization creditors are not reimbursed more than 20% of the amount of the claim, it cannot be said that exemption of all the claims for reimbursement by the related company or related parties responsible for failure of the company is contrary to fairness and equity.

⑼ 따라서 원심의 변경계획 인가결정이 위법하다는 항고인들의 주장은 모두 이유 없다.

4. Conclusion

Therefore, the order of the court below is just, and all of the appeals of this case are dismissed. It is so decided as per Disposition.

[Attachment Appellant and Proxy List]

Judges Lee E-woo (Presiding Judge)