2009년 도산법 중요 판례

During 2009, a lot of the Supreme Court decisions(hereafter SCD) on bankruptcy-related issues has been adjudicated. Since the late 1990’s IMF, the bankruptcy precedents has been accumulated year after year and got to the point of dealing with more complicated and sophisticated bankruptcy issues. In 2009 the Supreme Court ruled on diverse issues ranging from intrinsic bankruptcy issues to very complicated issues where not only bankruptcy law but also the Civil Act, the Commercial This paper focuses on the Supreme Court rulings on the issues related to the corporate reorganization procedures and corporate liquidation procedures, although the Supreme Court rulings on individual reorganization procedures and corporate liquidation procedures has the same weight as the others. With respect to the corporate reorganization procedures, this paper deals with various issues as follows; the effect of the commencement of the foreign reorganization procedure on the domestic law suit, in particular the permissibility of the set-off; whether or not the refiling of reorganization case per se constitutes dismissal grounds; how to treat the unsecured claims allowed in the straight bankruptcy procedure in the event the straight procedures is converted to the reorganization procedure; the cessation of law suit in the same instant with the commencement of the reorganization procedure; the scope of secured claims, in particular regarding the commercial bill security; how to deal with the arbitration award in the reorganization procedure; the excercise of the avoidance right against the special interested person; the legality of the deferment of collection on tax by the reorganization plan; whether or not the subrogation to the tax claimants by the tax payment guaranty insurance company is permissible in the reorganization procedure; the effect of debt-to-equity swap in the co-debtor’s reorganization plan on the debtor; whether or not the exercise of the reimbursement right by the co-debtor who made an partial payment to a creditor is permissible when the entire claim of the creditor against the debtor is extinct; whether or not the provision prohibiting the set-off in the reorganization procedure is still applicable after the closing of the reorganization procedure. With respect to the corporate straight bankruptcy procedures, this paper deals with issues such as whether the second place mortgagee on the common collateral could subrogate to the labor claim in the straight bankruptcy procedure and whether or not the executory contract could be terminated by the implicate rejection of the trustee.