[1] The purport of Article 233 (1) of the Company Reorganization Act

[2] The meaning of "fair and equitable" under Article 233 (1) 2 of the Company Reorganization Act

[3] Whether discrimination against the same kind of reorganization claims or securities in the reorganization plan is permitted, such as the ratio of reduction or exemption to rights or the period of repayment different without reasonable grounds (negative)

[4] In a case where only some reorganization creditors or security holders prior to the approval of the reorganization plan are preferentially reimbursed without accordance with the reorganization plan, whether the reorganization plan is fair and equitable (negative with qualification)

[5] The case holding that the reorganization program which recognized the preferential repayment through the early sale of the interest higher than other security holders and the real estate mortgaged by the Korea Development Bank, a security holder holding a security right to real estate for non-business use, and the exceptional order of appropriation to the payment of debts, violates the principle of equality among the security holders

[1] Article 233(1) of the Company Reorganization Act provides for the requirements for the approval of a reorganization plan. The purpose of this provision is to ensure that the contents of the reorganization plan are fair and equitable among interested parties, and at the same time to achieve the reorganization and reorganization of the company which is the purpose of the reorganization system, since the priority order in the company reorganization procedure is changed by a resolution of other creditors' creditors.

[2] For the approval of a reorganization plan, the reorganization plan must be fair and equitable under the former part of Article 233(1)2 of the Company Reorganization Act. The term "fair and equitable" in this context means that the conditions of the plan should be fairly and uniformly differentiated among the right holders of the same kind, taking into account the priority order of the rights under Article 228(1) of the same Act, and the conditions should be equal between the right holders of the same kind (same type) under Article 229 of the same Act.

[3] The "equality" under Article 229 of the Company Reorganization Act refers not to the equality in the formal meaning, but to the substantive equality that does not go against the concept of fairness and fairness. Thus, all rights in the reorganization plan are divided into six kinds of rights under Article 228 (1) 1 through 6 of the same Act and must be treated uniformly, and even if they are subdivided and differentiated in consideration of the difference in the nature of the reorganization claim or security, if it does not go against the concept of equity even if they are subdivided and differentiated in the inside of six kinds of rights, it is possible to do so. However, there is no discrimination such as the rate of reduction or exemption of rights or the period of repayment for the same kind of rights without reasonable grounds that it does not go against the concept of equity.

[4] Article 112 of the Company Reorganization Act provides that reorganization claims shall not be met without resorting to reorganization procedures, and Article 123 (2) of the same Act shall also apply mutatis mutandis to reorganization claims. In reorganization proceedings, the repayment of reorganization claims and securities is inseparably related to a change in the composition of capital pursuant to the reorganization plan, so the former reorganization plan needs to be jointly concluded, and if the repayment is not prohibited, the company's active assets are reduced, and it is not possible to maintain the company, and the preferential repayment to some reorganization creditors or security holders may impair the fairness among reorganization creditors or security holders. Thus, in case where the reorganization company redeems a security to some financial institutions without following the reorganization plan after the expiration of the period for reporting the reorganization claim, unless there are special circumstances such as that the preferential repayment to some reorganization security holders may be permitted by the law, it is difficult to view that the above reorganization plan is fair and equitable.

[5] The case holding that the reorganization program recognizing the preferential repayment through the early sale of interest higher than other security holders and real estate secured by the Korea Development Bank, a security holder who has a security right to real estate for non-business use, and the exceptional application order of appropriation of obligation violates the principle of equality among the security holders

[1] Article 233 (1) of the Company Reorganization Act / [2] Articles 228 (1), 229, and 233 (1) 2 of the Company Reorganization Act / [3] Articles 229 and 233 (1) of the Company Reorganization Act / [4] Articles 112, 123 (2), and 233 (1) of the Company Reorganization Act / [5] Articles 229 and 233 (1) of the Company Reorganization Act

[1] Supreme Court Order 87Ma277 dated December 29, 1987 (Gong1988, 398) / [2] Supreme Court Order 88Ma266 dated July 25, 1989 (Gong1997Sang, 285) / [4] Supreme Court Order 92Da10 dated June 15, 1992 (Gong192, 2219)

Gwangju Bank (Attorney Yoon Il-young, Counsel for the defendant-appellant)

Manager of Sam-Hy Co., Ltd. (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Daejeon High Court Order 98Ra3 dated February 9, 1998

The order of the court below shall be reversed and the case shall be remanded to Daejeon High Court.

The grounds of special appeal are examined.

1. Summary of and the progress and contents of the reorganization program for the reorganization company;

According to the records, the following circumstances are revealed with regard to the reorganization company of this case and its reorganization procedure and reorganization plan.

A. A. The reorganization company was established on January 1, 1984 and acquired a construction business license on November 1, 198, and changed its trade name on July 1, 1992. The reorganization company has its head office in Cheongju-gu ( Address 1 omitted) and has produced Pacific Co., Ltd. (PALC) and Alkc (ALC) (the above factories were closed on January 31, 1997), mainly as a stock company of 38,000,000,000,000 capital for housing construction business and various public works, and as of December 12, 1997, it is a construction business in the Republic of Korea of the order of 75th order of subcontracting as of December 197.

정리회사는 국내 주택경기의 침체(부산 ○○동 주상복합건물, 춘천 △△동과 양평 □□리 아파트의 분양실적 저조, 춘천 ☆☆동과 양주 ◇◇아파트 및 서울 ▷▷동 빌라사업의 분양 보류)와 관급공사 수주 감소 등으로 자금사정이 극도로 악화되고, 차입금의 증가에 따른 금융비용 증가, 운전자금 부족 현상 심화 등으로 정상적인 기업활동이 위축되어 이 사건 회사정리절차에 이르게 되었다.

On September 29, 195, upon filing an application for commencement of reorganization proceedings, the reorganization company received a preservative measure on October 11 of the same year from the first instance court, and on February 6, 1996, the company was ordered to commence reorganization proceedings. The expiration date of the period for reporting reorganization claims, securities, and stocks was March 9 of the same year, and the administrator of the reorganization company submitted the revised reorganization programs on July 31 of the same year after submitting the reorganization programs. On December 19 of the same year, the reorganization company submitted the revised reorganization programs on December 19 of the same year. On December 23, 1997, the reorganization plan was approved upon the consent of 80.82% of the reorganization securities at the meeting of interested persons, and 76.08% of the reorganization claims (hereinafter this is referred to as the reorganization plan in this case. The special appellant stated that the above reorganization program lacks equity in the meeting of interested persons).

B. To the extent necessary to determine the propriety of the grounds for special appeal among the contents of the instant reorganization program, the summary of the reorganization program is as shown in the attached Form. The first instance court decided to approve the instant reorganization program on December 23, 1997.

C. Accordingly, the reorganization plan in this case is not fair among reorganization creditors, and if the security right is terminated prior to the repayment of the debt, the right of the reorganization security holder becomes extinct, and the reorganization company appealed on the ground that there is no possibility of rehabilitation. However, the court below rejected the appeal on the ground that the reorganization plan in this case satisfies the requirements stipulated in Article 233(1) of the Company Reorganization Act (hereinafter referred to as the "Act").

2. Whether the reorganization program of this case is fair and equitable

A. According to Article 233(1) of the Act, the court may decide to approve a reorganization plan only when the reorganization plan satisfies the requirements stipulated in each subparagraph of paragraph (1) of the same Article. The purpose of Article 233(1) of the Act is to ensure that the contents of the reorganization plan are fair and equitable as well as to achieve the reorganization and reorganization of an enterprise which is the object of the reorganization system, since the priority order in the reorganization procedure is changed to rights by a resolution of other creditors (see Supreme Court Order 87Ma277, Dec. 29, 1987).

Therefore, in order to approve a reorganization plan, it shall be fair and equitable under the former part of Article 233(1)2 of the Act. The term "fair and equitable" refers to that the conditions of the reorganization plan should be fair and equitable, taking into account the priority order of the rights under Article 228(1) of the Act, and that the conditions of the plan should be equal as prescribed under Article 229 of the Act among the right holders of the same kind. The equality here refers not to formal equality, but to substantive equality that does not go against the concept of fairness and fairness, so all rights in the reorganization plan should be divided into six kinds under Article 228(1)1 through 6 of the Act, and the rights of each kind should be treated equally, and even if the rights in six kinds are inside the reorganization plan, it is not contrary to the concept of equality or equality, it shall not be deemed that there is a difference in the nature of the reorganization claim or security of the same kind.

B. However, according to the records, it is known that the reorganization company redeems some reorganization securities against some financial institutions without following the reorganization plan before the completion of the reorganization plan after the expiration of the period for the report of the reorganization plan (12,628,206,00 won for non-determined claims against the Peace Bank, 426,575,342 won for road expropriation, 19,173,948,000 won for non-determined claims against the Seoul Bank, and 27,410,319,02 won for non-determined claims against the Korea Housing and Commercial Bank, and the land expropriation compensation amounting to 4,765,382 won for the company's comprehensive financing, interest amounting to 29,931,507 won for the land expropriation, and interest amount to 400,000,000 won for the company's comprehensive financing company, and there is no need to amend the reorganization plan and its existing reorganization reorganization plan to the extent that it does not constitute an indivisible claim under Article 2161 of the Act.

C. Next, the reorganization program provides that the interest rate of 7% per annum on the interest accrued (interest accrued after the commencement of the reorganization procedure) to the other financial institutions shall be changed to 10% per annum; however, other financial institutions security holders shall, in principle, be paid in installments for 10 years from 2008 to 10 years; security rights shall be terminated when apartment buildings, etc. are constructed on the ground; and security rights shall be repaid in preference to the proceeds of sale; however, the financial institutions which have received reimbursement shall offer additional funds to the reorganization company; on the other hand, the Korea Development Bank shall sell the above government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government government administration and government government government government government government government government government government government government government administration's 0 years and 70 days government government government government government government government government government government administration's 0 years and government government government government government government government administration's 60 years and government government government administration's 30 years and government government administration's 7.

3. The grounds for the special appeal pointing out the above points are well-grounded, and without examining the remaining grounds for the special appeal, the decision of the court below is reversed and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)