[1] Whether not only the act of guaranteeing the issuance of a bill but also the act of guaranteeing the first issuance of a bill should be limited to not only the act of guaranteeing the issuance of the bill but also the act of guaranteeing the first issuance of the bill within six months prior to the suspension of payment by the reorganization company (affirmative)

[2] In a case where the due date for the payment of a bill has been extended by the method of substitution, whether the act of guaranteeing the issuance of a new bill constitutes "free act which is subject to the avoidance power or the act of giving rise to such act simultaneously under Article 78 (1) 4 of the Company Reorganization Act (negative)

[1] The face value, payee, guarantor, etc. are the same in order to extend the due date for the payment of the bill, and the issuance of a new bill is made in the form of a new bill, but it is reasonable to view that the legal nature of a new bill is still continuous with the maintenance of identity of the existing obligation, because the guarantee act of an obligation under a bill issued for substitute exchange is merely an extension of the due date for the payment of the existing obligation, and it is reasonable to view that the existing obligation still remains consistent. Thus, in order to make the guarantee act of an obligation under a bill issued for substitute exchange subject to the avoidance power under Article 78 (1) 4 of the Company Reorganization Act, only the guarantee act of the issuance of the bill was conducted within six months before the due date for the payment suspension of the original bill, which can be deemed identical in light of its nature, should be limited to the act of guaranteeing the issuance of the bill within six months before the due date for

[2] In a case where the due date for the payment of the bill is extended by the method of exchange, since the issuance of a new bill and the repayment of the existing bill are made, the act of guaranteeing the issuance of a new bill also constitutes "free act which is the object of avoidance power under Article 78 (1) 4 of the Company Reorganization Act, or the act of giving rise to the same simultaneously, as the act of guaranteeing the issuance of a new bill is

[1] [1] Article 78 (1) 4 of the Company Reorganization Act, Article 78 (1) 4 of the Company Reorganization Act

[1] [2] Supreme Court Decision 91Da24281 delivered on December 10, 1991 (Gong1992, 484) Supreme Court Decision 97Da16077 delivered on February 27, 1998 (Gong1998Sang, 861)

A trustee in bankruptcy of a new comprehensive financial corporation for the bankrupt (Law Firm Global, Attorney Lee Im-sung et al., Counsel for the plaintiff-appellant)

Administrator Park Young Steel Co., Ltd. (Law Firm International Law Firm, Attorneys Kim Tae-sik et al., Counsel for the plaintiff-appellant) who is the administrator of Young Steel Co., Ltd. whose duties are terminated

Changwon District Court Decision 9Da3488 delivered on March 31, 2000

1. The judgment below is modified as follows.

(a)Recognizing that the reorganization claims in the amount of KRW 3,363,834,627 against the Young Steel Co., Ltd. are taken by the bankrupt, and confirming that there has been voting rights in the same amount at the meeting of the persons concerned of the reorganization company;

B. The plaintiff's remaining claims are dismissed.

2. All the costs of a lawsuit shall be divided into two parts of the first and second instances, and one of them shall be borne by the plaintiff, and the remainder by the defendant, respectively.

The judgment of the court below is revoked. It is confirmed that a new comprehensive financial corporation which was declared bankrupt has reorganization claims of KRW 7,578,792,337 against the reorganization steel corporation, and that there is the same amount of voting rights at the meeting of the persons concerned of the reorganization company.

1. Judgment on the plaintiff's assertion

(a) The plaintiff asserts that, at the same time as the reorganization claim of KRW 7,578,792,337 is made against the non-party Yeongdeungpo Steel Co., Ltd. (hereinafter referred to as the "Reconciliation") which has guaranteed the bill when the transaction of the bill is conducted under a bill transaction agreement with the non-party Seoung Steel Co., Ltd. (hereinafter referred to as the "Reconciliation") which was declared bankrupt, the plaintiff shall have the same amount of voting rights at the meeting of interested persons of the above Reconciliation Co., Ltd.

B. Facts of recognition

The following facts are not disputed between the parties, or are recognized by Gap evidence 1, 2, 3, and 4-1 through 3, Gap evidence 5, 6, Gap evidence 7-1 through 20, Gap evidence 8-1 through 3, Eul evidence 9, Eul evidence 3-1, and Eul evidence 3-2, and witness testimony of the appellate court witness.

(1)The bankrupt company (which was declared bankrupt by the Seoul District Court on October 9, 1998 and was appointed by the plaintiff as the bankruptcy trustee on the same day) entered into a bill transaction agreement between the other bill transaction agreement to discharge all obligations, including the ceiling amount on the other bill transaction at which the interest industry is currently and future, and the interest, damages, and other incidental expenses.

(2)On June 24, 1997, Daeung Industries received a guarantee from the reorganization company, and received at a par value 463,500,000, and issued and paid on June 24, 1997, Seoul, and the due date of September 18, 1997, a promissory note 1 dated 197, issued and delivered to the Non-Party Comprehensive Technology Finance Corporation and received a discount. In this case, the bankruptcy company guaranteed the bill in accordance with the bill transaction agreement.

Afterwards, interest shall be paid only on the date of payment of a promissory note between the Korea Comprehensive Technology Finance Corporation and the Korea Comprehensive Technology Finance Corporation, and transaction shall be conducted in such a way as to exchange with the existing promissory note, the issue date and the due date of which shall be changed only on April 30, 1998. Finally, the Promissory Notes No. 1 issued on May 28, 1998 (hereinafter referred to as the "First Promissory Notes") as of April 30, 1998, and the first Promissory Notes No. 1 was presented on the due date but refused to pay.

(3)On September 19, 1997, Daei Industries received a guarantee from the reorganization company, and at its face value 6,00,000,000,000, the issue date September 19, 1997, Seoul, the place of issue and payment, and the due date of March 19, 198, issued and delivered a promissory note 1 dated March 19, 199 to the non-party Han Bank, and at this time the bankruptcy company guaranteed the bill in accordance with the above Promissory Notes transaction agreement.

After that, the Daeungung Industries issued a Promissory Notes (hereinafter referred to as the "Second Promissory Notes") as of April 17, 1998 on the issue date, and on May 15, 1998, the Promissory Notes (hereinafter referred to as the "The Second Promissory Notes") and the Second Promissory Notes of this case were presented at the due date and rejected payment of the Second Promissory Notes of this case. The Second Promissory Notes of this case were presented at the due date, in order to pay interest only on the date of the payment of the Promissory Notes and to extend the due date.

(4)On the other hand, the bankruptcy company was ordered by the Minister of Finance and Economy on December 10, 1997 to suspend its business and was revoked on February 17, 1998, and according to the decision to transfer a contract as stipulated in the Act on the Structural Improvement of the Financial Industry, the non-party Han Han National Financial Co., Ltd. (hereinafter referred to as the "Korea National Financial Co., Ltd.") was in charge of the transaction of bills in the interest industry of the bankrupt

In accordance with the above Promissory Notes transaction agreement, Hani General Finance guaranteed the Promissory Notes at the time of the issuance of each of the Promissory Notes. When each of the Promissory Notes was refused to pay on May 28, 1998, it was paid as the guarantor of the Promissory Notes amounting to KRW 458,893,545, and paid KRW 6,000,000 to Han Han Bank, the holder of the Promissory Notes No. 2, the holder of the Promissory Notes, and redeemed each of the Promissory Notes. On May 16, 1998, the Promissory Notes Co., Ltd.: (a) transferred each of the Promissory Notes to the bankrupt company; (b) transferred each of the Promissory Notes to the company, which is the joint guarantor of each of the Promissory Notes; and (c) notified the fact that the Promissory Notes was transferred to the Han Han Bank on June 5, 1998.

(5) On June 1, 1998, the reorganization company was suspended from transactions due to the occurrence of bankruptcy and the suspension of transactions. On January 26, 1999, the decision to commence the company reorganization procedure was made under the Changwon District Court 98Ma1100, and Non-party Chuncheon was appointed as the administrator of the reorganization company, and the defendant was appointed as the administrator of the reorganization company on November 1, 1999.

Meanwhile, according to the above order of commencement of reorganization, the plaintiff filed a claim as reorganization claim on the ground that the bankrupt company's subrogation payment for each of the instant promissory notes and its subrogation payment for the reorganization company within the reorganization period and the damages for delay at the rate of 25 percent per annum, which is the overdue interest rate, from the date of each subrogation to January 25, 1999, from the date of reporting the claim to the date of each subrogation, shall have a claim for reimbursement of 7,578,792,337 won per annum, which is the overdue interest rate, and the claim was reported as reorganization claim. However, on March 23, 199, new Chuncheon denied the total amount of the above claim on the ground that the guarantee for the issuance of each of the instant promissory notes

(c) Markets:

According to the above facts, since KIB and KIB have jointly guaranteed the issuance of each of the Promissory Notes in this case, and since KIB have paid the amount of the Promissory Notes to each of the holders of the Promissory Notes, it can exercise the right of indemnity within the limit of 1/2 presumed to be the joint guarantor of the Promissory Notes. It can be said that KIB have exercised the right of indemnity within the limit of 6,458,893,545 won (458,893,545 + 6,00,000,000 won + 458,545 won + 6,54666,76368,7686,767,6465, 767, 7665, 206, 205636, 206, 36756, 206, 36566, 207, 47666, 2065) of the total amount of the Promissory Notes.

2. Judgment on the defendant's defense

(a) Claim for legal acts including legal capacity and capacity;

(1) Notes

In light of the fact that the purpose of the articles of incorporation is limited to the sale of fruit and silver, the processing of steel products, etc., the liquidation company's act of guaranteeing the issuance of a promissory note to another person is invalid as a legal act outside the capacity of the liquidation company's legal capacity. However, since the majority shareholder provided a bill guarantee regardless of the purpose of profit-making or profit-making of the liquidation company, the bill guarantee is invalid.

(2) Determination:

The corporation's legal capacity is limited by the law that served as the basis for the incorporation of the corporation and the purpose of the corporation's articles of incorporation, but acts within the scope of the purpose are not limited to the purpose itself specified in the articles of incorporation, but to the extent that acts directly or indirectly necessary for the performance of that purpose are all included and necessary for the achievement of the purpose, shall be determined according to the objective nature of the act and shall not be determined

However, according to the evidence revealed in the above 1. The interest industry, reorganization company, and double metal company are affiliates of the two groups, and the actual manager is the same person as the non-party Kim Young-young. The reorganization company has guaranteed the company's obligations belonging to the two groups through several times during the reorganization company, or guaranteed the bills issued by the company belonging to the two groups. In light of the company's circumstances where guarantee or joint guarantee between the affiliates is often conducted, the reorganization company's guarantee of the issuance of each of the promissory notes of this case is an act directly or indirectly necessary to fulfill the purpose of the reorganization company. Thus, the defendant's above assertion is without merit.

(b) Claim to exercise the avoidance power;

(1) The parties' assertion

The defendant asserts that since the reorganization company guaranteed the issuance of each of the Promissory Notes in this case on April 30, 1998 and April 17, 1998, no economic compensation has been paid by the reorganization company, and each of the above guaranteed acts constitutes gratuitous acts conducted within six months before the suspension of payment by the reorganization company, the defendant denied this, the claim for indemnity in this case by the reorganization company cannot be a reorganization claim.

As to this, the plaintiff asserts that since each of the Promissory Notes in this case was issued in a manner to repay the obligations of the existing Promissory Notes, and is used in the so-called revolving transaction, the time of guarantee of each of the Promissory Notes in the reorganization company shall be deemed the date of the first Promissory Notes. The issue date of the first Promissory Notes in June 24, 1997 and September 19, 197 shall not be within six months from June 1, 1998, the date of payment suspension of the reorganization company, and it is clear that the issuance date of the first Promissory Notes in this case is not within six months from June 1, 1998, the date of payment suspension of the reorganization company. Thus, the guarantee of the issuance of each of the Promissory Notes in this case cannot be exercised, and even if there was an act of guaranteeing the issuance of each of the Promissory Notes in this case, it is difficult to view that the reorganization company's act of guaranteeing the issuance of each of the Promissory Notes in this case was "cost for the extinction of the obligations."

(2) Determination:

(A) Whether the debt is identical

As seen in the above 1. B. (2) and (3), it is reasonable to view that the new promissory note has been issued in form, but its legal nature is the so-called substitution that is merely an extension of the maturity of the existing obligation, and the existing obligation still continues to continue to exist after maintaining its identity, in order to pay interest only on the date of payment and extend the maturity of payment.

In order to deny the act of guaranteeing the issuance of each of the Promissory Notes in accordance with Article 78(1)4 of the Company Reorganization Act, it is insufficient to say that only the act of issuing the Promissory Notes was conducted for six months from the time when the issuing of each of the Promissory Notes was suspended separately. The act of guaranteeing the issuance of each of the Promissory Notes as of June 24, 1997 and September 19, 197 can also be viewed as exercising the right of avoidance only in cases where the act of guaranteeing the issuance of each of the Promissory Notes is subject to the right of avoidance.

On the other hand, it is apparent that the act of guaranteeing the issuance of each of the Promissory Notes in this case is not within six months from June 1, 1998 when the reorganization company was suspended from payment on June 24, 1997 and September 19, 197 when each of the Promissory Notes issued for the first time. As such, the act of guaranteeing the issuance of each of the Promissory Notes in this case cannot be subject to the avoidance power under Article 78 (1) 4 of the Company Reorganization Act, and the defendant's above assertion is without merit.

(B) Whether the debt is paid for

On the other hand, as seen in the above 1.b. (2) and (3) the Daeung Industries received a guarantee from the reorganization company on April 9, 1998 and issued and delivered a promissory note to the Korea Comprehensive Technology Finance Co., Ltd. and one bank at discount, and paid only interest on the due date and exchanged with the existing promissory note with the same issue date and the due date only as the new promissory note were issued and exchanged with the existing promissory note. In addition, according to the evidence stated in the above 1.1., the Promissory Notes of this case can be appropriated for the amount of 90.9 of the previous Promissory Notes issued and discounted on April 30, 1998 with the guarantee of the reorganization company on April 9, 1998 (the face value 463,50,000,000, and the due date 90.9 of the previous Promissory Notes issued and discounted on May 2, 1998.

According to the above facts, the lending industry issued each of the Promissory Notes in this case and paid each of the Promissory Notes at the Korea Comprehensive Technology Finance Co., Ltd., a discount to Han Bank, and then repaid each of the Promissory Notes as of April 9, 1998, and March 19, 198, and thus guaranteed the issuance of each of the Promissory Notes at the time of the reorganization company’s guarantee of the issuance of the existing Promissory Notes, and the reorganization company’s guarantee of the issuance of each of the Promissory Notes in this case was also extinguished. It is difficult to view that the act of guaranteeing the issuance of the existing Promissory Notes is an act of free payment or an act

If the obligation to be extinguished is invalid or the obligation to be extinguished is subject to the exercise of the avoidance power, it cannot be said that the act of payment is a consideration for the extinction of the obligation to be extinguished. However, in this case, the last guarantee act of a bill is limited to the consideration for the extinction of the obligation to be extinguished immediately before. The former guarantee obligation of a bill is viewed as the object of the exercise of the avoidance power, but the former guarantee obligation of a bill is limited to the consideration for the extinction of the obligation to be extinguished before and after the latter, and thus, a series of debt obligations can be evaluated as the consideration for the extinction of the first guarantee obligation of a bill retroactively and retroactively. However, since the first guarantee obligation of a bill is a valid obligation that cannot be subject to the exercise of the avoidance power, it is ultimately impossible to deny its payment. In particular, in light of the fact that the payment of a new obligation immediately after the base date for the extinguishment of the valid obligation of a bill that was established before and after the point of

In this respect, it is not possible to exercise the avoidance power under Article 78 (1) 4 of the Company Reorganization Act, and the defendant's above assertion is therefore without merit.

3. Conclusion

Therefore, the bankruptcy company has voting rights equivalent to the amount of reorganization claim of KRW 3,363,834,627 against the reorganization company. Thus, the plaintiff's claim of this case against the defendant, who is an objection, seeking confirmation of reorganization claim and voting right, shall be accepted within the extent of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court below is unfair with different conclusions, it is so unfair as to accept part of the plaintiff's appeal, and it is decided as per Disposition by the assent of

Judges Seodilution(Presiding Judge)