견련파산 당시 계속 중인 회생채권조사확정재판에 대한 이의소송의 처리 — 대법원 2020. 12. 10. 선고 2016다254467, 254474 판결 — (A Study on the Lawsuit Objecting to the Judgment in Claim Allowance Proceedings on Rehabilitation Claims Pending at the Time of the Converted Bankruptcy)

서지정보

· 발행기관 : 한국민사소송법학회
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· 저자명 : 나원식

초록

At the time the converted bankruptcy is declared pursuant to Article 6(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Debtor Rehabilitation Act”) resulting from the discontinuation of rehabilitation procedure after the authorization of a rehabilitation plan, a lawsuit objecting to the judgment in claim allowance proceedings filed in rehabilitation procedures may be pending.
The Supreme Court, in the judgment of 2016Da254467, 254474 decided on December 10, 2020 (hereinafter “subject case”), stated that the creditor shall take over the lawsuit objecting to the judgment in claim allowance proceedings on rehabilitation claims pursuant to Article 464 of the Debtor Rehabilitation Act and the other party may also file a request for takeover. The subject case also stated that the plaintiff of the lawsuit should either alter the previous purport of the claim from seeking the confirmation of the table of rehabilitation creditors to seeking the confirmation of the table of bankruptcy creditors or seek the confirmation of both the table of bankruptcy creditors and rehabilitation creditors.
Since the lawsuit objecting to the judgment in claim allowance proceedings on rehabilitation claims corresponds to a lawsuit involving disputed claims as referred to in Article 464 of the Debtor Rehabilitation Act, the creditor shall take over the lawsuit in accordance with Article 464 of the Debtor Rehabilitation Act and the other party may also file a request for takeover. After taking over the lawsuit, the purport of the claim shall be altered to seeking confirmation of bankruptcy claims in order to confirm bankruptcy claims. In addition, it is necessary to maintain the seeking for confirmation of rehabilitation claims in order to reflect the circumstances in which the rehabilitation claims confirmed according to the claim allowance procedure stipulated in the rehabilitation procedures are substantially altered by the rehabilitation plan. Therefore, the alteration in claims for confirmation of bankruptcy claims should be made as an additional alteration, not an exchangeable alteration. It is questionable that the subject case recognized an exchangeable alteration from confirmation of rehabilitation claims to confirmation of bankruptcy claims, and that the subject of the confirmation was the “table of bankruptcy/rehabilitation creditors”, not the “bankruptcy/rehabilitation claims”.

영어초록

At the time the converted bankruptcy is declared pursuant to Article 6(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Debtor Rehabilitation Act”) resulting from the discontinuation of rehabilitation procedure after the authorization of a rehabilitation plan, a lawsuit objecting to the judgment in claim allowance proceedings filed in rehabilitation procedures may be pending.
The Supreme Court, in the judgment of 2016Da254467, 254474 decided on December 10, 2020 (hereinafter “subject case”), stated that the creditor shall take over the lawsuit objecting to the judgment in claim allowance proceedings on rehabilitation claims pursuant to Article 464 of the Debtor Rehabilitation Act and the other party may also file a request for takeover. The subject case also stated that the plaintiff of the lawsuit should either alter the previous purport of the claim from seeking the confirmation of the table of rehabilitation creditors to seeking the confirmation of the table of bankruptcy creditors or seek the confirmation of both the table of bankruptcy creditors and rehabilitation creditors.
Since the lawsuit objecting to the judgment in claim allowance proceedings on rehabilitation claims corresponds to a lawsuit involving disputed claims as referred to in Article 464 of the Debtor Rehabilitation Act, the creditor shall take over the lawsuit in accordance with Article 464 of the Debtor Rehabilitation Act and the other party may also file a request for takeover. After taking over the lawsuit, the purport of the claim shall be altered to seeking confirmation of bankruptcy claims in order to confirm bankruptcy claims. In addition, it is necessary to maintain the seeking for confirmation of rehabilitation claims in order to reflect the circumstances in which the rehabilitation claims confirmed according to the claim allowance procedure stipulated in the rehabilitation procedures are substantially altered by the rehabilitation plan. Therefore, the alteration in claims for confirmation of bankruptcy claims should be made as an additional alteration, not an exchangeable alteration. It is questionable that the subject case recognized an exchangeable alteration from confirmation of rehabilitation claims to confirmation of bankruptcy claims, and that the subject of the confirmation was the “table of bankruptcy/rehabilitation creditors”, not the “bankruptcy/rehabilitation claims”.

참고자료

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