Claimant 1 and 19 others (Law Firm Hyundai, Attorneys Hyundai 1 et al.)

J.Saeong Village and Land Partition Association (Law Firm Tae Tae, Attorneys Lee Tae-gu et al., Counsel for defendant-appellant)

1. All of the instant applications are dismissed.

2. The applicant shall bear the costs of the application.

A decision that a bankruptcy will be declared to the debtor's progress. The debtor's association for reorganization of land in the scenic village (hereinafter referred to as the "debtor's association").

1. Facts of recognition;

The following facts shall be recognized by the court of this case or by the records of this case:

A. Status of the parties

1) In order to implement a land readjustment project (hereinafter “instant project”), the debtor association is a land rearrangement project association with 1,616 land owners in the instant project area as its members for the establishment of the association and the implementation of the instant project from the Ulsan Metropolitan City Mayor on August 14, 1998 for the purpose of the implementation of the land readjustment project (hereinafter “instant project”).

2) The applicants are partners of the debtor partnership.

B. Progress of the instant project

1) On January 28, 199, the debtor association entered into a contract for the instant project with Pyeongtaek Ho Construction Co., Ltd. (hereinafter “Seoul Chang Construction”), and around February 1999, the debtor association changed the name on the register of the land allotted by the authorities in recompense for development recompense for development outlay in lieu of the payment of the construction price to Pyeongtaek Ho Construction, and changed the name on the register of the land allotted by the authorities in recompense for development outlay for development outlay.

2) On December 26, 2006, the construction was suspended in the state where it remains in the Republic of Korea and 70%, and it became insolvent on December 26, 2006. After which, on November 15, 2007, the creditors, including the debtor's partnership, filed an application for bankruptcy against Pyeongtaek Ho-ro, Seoul Central District Court No. 2007Hahap68 on November 15, 2007, and the above court declared bankruptcy against Sejong Chang-ro on April 25, 2008.

3) The debtor association reported 60.5 billion won as a bankruptcy claim in the bankruptcy procedure for the above Cho Chang-joon case, and the bankruptcy trustee for the bankruptcy was the time of the bankrupt's recommendation.

4) The instant project continues to be run even after Pyeongtaek Chang-gu bankruptcy, 2013.12. The base rate is 87.17%, and its subsequent business is suspended.

C. Claims against the applicant’s debtor partnership

1) Based on Article 40 of the Farmland Act, Article 52 of the Enforcement Decree of the same Act, and Article 45-2 of the Act on the Special Measures for Development of Agricultural and Fishing Villages, the head of Ulsan Northern District imposed the debtor partnership the farmland creation cost of KRW 8,597,974,320, the farmland preservation charges of KRW 11,853,814,090, the sum of the farmland preservation charges of KRW 20,451,78,410 (hereinafter “instant charges”). However, the debtor partnership failed to pay the instant charges within the payment deadline.

2) On September 15, 2001, the head of Ulsan Northern Northern District Office ordered the debtor partnership to suspend construction for the project of this case on the grounds of the arrears of the charges of this case pursuant to Article 41 of the Farmland Act, it is anticipated that the impact on the local economy, such as the occurrence of chronic civil petitions and the fear of bankruptcy due to the business difficulties due to the business difficulties of the project implementation company, and if seized land is sold later, it shall consult with the relevant ministries so that it can be appropriated for the charges of this case from the proceeds of the sale, and if an application for authorization or permission is received for each construction within the project area of this case in the future, the policy was established at the intervals of the construction authorization or permission, only when the amount equivalent to the area of the charges of this case is separately imposed on the debtor partnership and the charges are paid.

3) In order to establish buildings on their own land within the instant project zone, the applicants paid for the portion corresponding to the area of their own land out of the instant charges.

4) The applicants filed a lawsuit claiming unjust enrichment against the debtor partnership against the debtor partnership as Seoul East Eastern District Court 2010Kahap13259 and Ulsan District Court 201Gadan23278 and won. The total principal recognized by the applicants for each lawsuit as to the debtor partnership is KRW 388,409,630.

(d) Financial resources of the debtor partnership;

1) The debtor association’s liabilities amount to KRW 7,980,058,963, including farmland charges and construction costs.

2) The assets of the debtor's association are KRW 36,00,000 of the deposit for the deposit for the deposit, KRW 6,605,327 of the office house, and KRW 60,50,000,00 of the bankruptcy claim for the bankrupt's ordinary land, KRW 64,452,368,62 of the estate claim for the bankrupt's ordinary land, KRW 3,909, KRW 763,335 of the estate claim, KRW 64,452,368,662 of the estate claim for the bankrupt's ordinary land. However, since the bankruptcy proceeding for the bankrupt's ordinary land has reached KRW 580,02,336,535 of the total amount of the claim recognized as the estate claim, which has priority, and KRW 6,00,000 of the claim for the confirmation of the estate claim until now, it is difficult to determine the amount of the estate claim for the bankrupt's ordinary land.

3) On July 23, 2010 and July 8, 2011, the applicants demanded the repayment of debt, such as filing a lawsuit seeking an alternative burden against the debtor association, but failed to be paid up to the date.

2. Determination

(a) Existence of the cause of bankruptcy;

According to the above facts, the debtor union has no property to repay the applicant's obligations, including the claims, except for the claims for the ordinary construction of the bankrupt. In light of the bankruptcy procedure for the settlement of the bankrupt, the possibility of repayment of the claims is low, so there is a bankruptcy cause for the insolvency.

(b) Abuse of bankruptcy procedures;

1) The debtor partnership filed a petition for bankruptcy to recover the farmland preservation charges paid on behalf of the debtor partnership in order to preferentially use the land owned by the claimant partnership, while the debtor partnership suffered enormous damages to the 1,616 members when the debtor partnership goes bankrupt, and it is anticipated that the partnership will enter the liquidation procedure when the land readjustment project is not completed and cause a big confusion in the community. Thus, the debtor partnership filed a petition for bankruptcy for the recovery of the farmland preservation charges paid on behalf of the debtor partnership for the purpose of preferentially using

2) Under Article 309(2) of the Debtor Rehabilitation and Bankruptcy Act, separate from Article 309(1) of the same Act, a petition for bankruptcy may be dismissed in cases where the petition constitutes abuse of bankruptcy proceedings. The determination of whether the petition for bankruptcy constitutes abuse of bankruptcy proceedings is based on the principle of prohibition of abuse of rights as prescribed by Article 309(2) of the same Act should be made by comprehensively taking into account all the circumstances related to the exercise of rights, as in other general provisions. In particular, in light of the legislative history, language, and regulatory structure of the above provision, in order to ensure a new start of the debtor partnership with good faith and sincerity and to ensure fair and fair performance of the original function of the bankruptcy system, including the bankruptcy system, where the debtor association is able to take into account not only the present and future ability to perform its obligations, but also the motive and background leading to the petition for bankruptcy, the cause and circumstances leading to the filing of the petition for bankruptcy, the circumstances leading to the occurrence of the bankruptcy, the circumstances leading to the bankruptcy, and the circumstances leading to the insolvency, and the spending of information among 1515.

In light of the following circumstances, the instant application is deemed to have used a petition for bankruptcy as a means of pressure for recovery of claims, and constitutes abuse of bankruptcy proceedings, in view of the fact of recognition and the records of the instant case.

① After winning a lawsuit for return of unjust enrichment and unjust enrichment by the Seoul Eastern District Court 2010Ga13259 and the Ulsan District Court 201Ga 23278, the petitioner filed a claim against the debtor association for an agreed amount equivalent to the land price in recompense for development outlay (hereinafter “instant agreed amount claim”) with the Seoul Central District Court 201 Taz3703, 3704, and applied for the attachment and collection order of the claim on September 21, 201, and received a decision of 14th 200, Ulsan District Court 201, the applicant filed a lawsuit against the debtor association on September 21, 201, and subsequently rejected the claim against the bankruptcy trustee on September 21, 2012 for the same claim against the debtor association. The remaining applicants except the applicant 20 were dismissed on the ground that the 20th 20th 3rd 205 of the agreed amount claim against the bankruptcy trustee on September 21, 2012.

② The debtor partnership is a partnership for a land readjustment project, and the current ownership of the land allotted by the authorities in recompense for development outlay is in excess of the usual land construction, so the bankruptcy is not the asset to be liquidated and distributed even if it is bankrupt, and such circumstance is well known to the applicants, the union members, also. In such a situation, immediately after a lawsuit against the bankrupt for recovery of claims becomes final and conclusive, the petition for bankruptcy of this case filed by the petitioner who filed a lawsuit for recovery of claims against the ordinary land construction by the bankrupt, the purpose of the petition for bankruptcy of this case seems to have

③ The total number of the members of a debtor association is 1,616, and 76 members among them were submitted to this court a written application against the bankruptcy of the debtor association. On September 6, 2016, the debtor association held a board of directors and passed a resolution against the bankruptcy with the consent of all the members present at the board of directors, and passed a resolution to revise the project period by 2025.

④ In the event that the debtor partnership goes bankrupt, liquidation procedures are implemented without completion of the project of this case, and there is a lot of dispute over the ownership of the land in the business area among the 1,616 members. Furthermore, according to the process report of this case, it is expected that the debtor partnership will cause a high concentration of damages if the debtor partnership goes bankrupt, such as flood damage, etc.

⑤ The petitioner asserts that since the business of this case is not completed due to the unlawful acts of the executive officers such as the president of the partnership, the debtor partnership should be declared bankrupt and the cause of fraudulent corruption should be identified. However, the bankruptcy procedure shall not be used for such purpose, even if such circumstances are revealed through criminal charges.

(6) The debtor association is scheduled to proceed with or plan various lawsuits against the bankrupt in bankruptcy for the completion of the instant project, and to proceed with the modification of the project plan which the board of directors resolves by the Ulsan Metropolitan City Mayor after obtaining approval from the Ulsan Metropolitan City Mayor.

3. Conclusion

Therefore, the application of this case is dismissed in accordance with Article 309(2) of the Debtor Rehabilitation and Bankruptcy Act, and it is so decided as per Disposition.

Judges Doh-won (Presiding Judge) Kim Dong-dong Kim Jong-Gyeong