[1] Whether a trustee guarantor may report a claim for indemnity against a interest claim that will arise in the future as a bankruptcy claim (affirmative)

[2] Whether the claim for indemnity against the interest claim after the bankruptcy was declared by the trustee guarantor as the prior right to indemnity or future right to indemnity is a subordinate bankruptcy claim (affirmative)

[1] In a case where the trustee guarantor files a bankruptcy claim as a prior claim pursuant to Article 442 of the Civil Code, the scope of the prior claim shall include the original of the obligation, the interest and delay damages, the expenses not to be paid, and other damages, and the interest until the due date for which the principal of the obligation will become due shall not be included in the scope of the prior claim. However, it may be subject to the bankruptcy claim report as a future claim pursuant to Article 21(1) of the Bankruptcy Act.

[2] If the recognition of a bankruptcy claim and the type of the bankruptcy claim vary depending on who is a creditor and a trustee guarantor's report, it would be unreasonable because it would prejudice the interests of other bankruptcy creditors and make their status unstable. Thus, it is reasonable that a trustee's claim for indemnity against a trustee's guarantor cannot be recognized beyond the scope of the bankruptcy claim recognized in the bankruptcy procedure upon reporting a claim. As a result, even if the trustee has reported a claim with the prior right to indemnity against the interest claim (which comes due) or future right to indemnity (which comes due) after the bankruptcy is declared, the interest claim constitutes a bankruptcy claim, but it constitutes a subordinate bankruptcy claim as provided by Article 37 subparagraph 1 of the Bankruptcy Act.

[1] Article 442 of the Civil Code, Article 21 of the Bankruptcy Act / [2] Article 21 of the Bankruptcy Act, Article 37 subparagraph 1 of the Bankruptcy Act

[1] Supreme Court Decision 88Meu10524 delivered on September 29, 1989 (Gong1989, 1572)

Hyundai Securities Co., Ltd. (Seoul General Law Firm, Attorneys Yoon Sang-il et al., Counsel for the plaintiff-appellant)

The bankruptcy trustee of the bankrupt national rental company (Attorney Han-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2000Na43132 delivered on March 23, 2001

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

We examine the grounds of appeal.

1. In a case where the trustee guarantor files a bankruptcy claim as a prior claim pursuant to Article 442 of the Civil Act, the scope of the prior claim for reimbursement shall include the original of the obligation, interest and delay damages incurred, the expenses that cannot be paid, and other damages (see Supreme Court Decision 88Meu10524, Sept. 29, 1989). The interest for the principal of the obligation until the future due date shall not be included in the scope of the prior claim for reimbursement. However, it can be subject to bankruptcy claim as a future claim under Article 21(1) of the Bankruptcy Act.

However, when a creditor exercises his/her right as a bankruptcy creditor with respect to the total amount of his/her claim, the person holding the future right to indemnity shall prohibit a creditor from exercising his/her right as a bankruptcy creditor against the bankruptcy foundation; under Article 21 (2) of the Bankruptcy Act, the creditor shall exercise his/her right as a bankruptcy creditor with respect to the total amount of his/her claim; under Article 37 (1) of the same Act, if a person holding the future right to indemnity has repaid his/her claim, he/she shall acquire the creditor's right in proportion to the repayment ratio; under Article 37 (1) of the same Act, interest after the bankruptcy is declared as subordinate bankruptcy claim; and under Article 37 (1) of the same Act, the creditor shall promptly liquidate the bankrupt's assets and distribute his/her bankruptcy claim to the proceeds from the realization of the real estate to the creditor's equity and equal satisfaction; in light of the characteristics of bankruptcy procedures, if any, depending on which any of the creditors and the trustee's claims are reported, this would undermine the interest of other bankruptcy creditors and make unstable status.

2. In the above purport, the court below is just in holding that the Plaintiff, a trustee guarantor, reported a prior right to indemnity or a future right to indemnity, was a subordinate bankruptcy claim against the interest claim on the corporate bonds of this case after the declaration of bankruptcy. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on Article 21 of the Bankruptcy Act, by misapprehending the principle of pleading, by failing to comply with the principle of explanation, or by failing

3. Therefore, the appeal is dismissed, and all 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 Seo-sung (Presiding Justice)