파산절차에서의 중앙관서의 장의 중요재산 처분 승인거부처분의 위법 여부 - 대법원 2024. 7. 11. 선고 2021두47974 판결을 중심으로 -

When a subsidy program operator is declared bankrupt and bankruptcy proceedings commence, the bankruptcy trustee appointed by the court has the authority to dispose of assets, including important properties acquired with subsidies, under the court's approval. The trustee may sell the property voluntarily or participate in a voluntary auction initiated by secured creditors to receive distribution proceeds. Meanwhile, Article 35, Paragraph 3 of the Subsidy Management Act stipulates that a subsidy program operator cannot dispose of important property without the approval of the head of the central government agency. The issues arising here include whether the above provision of the Subsidy Act still applies when the a subsidy program operator is declared bankrupt, thus requiring the approval of the central government agency head for the sale of important property in voluntary sales or auctions by the trustee or secured creditors. If such approval is required, another question is whether it is illegal for the head of the central government agency to refuse approval on the grounds that the full amount of the subsidy repayment has not been collected. Regarding the first issue, considering the legislative intent of the Subsidy Act, existing Supreme Court precedents in similar cases, and the relationship between the bankruptcy court's approval and the central government agency head's approval under the Subsidy Act, it is concluded that the sale of important property requires both the bankruptcy court's approval and the central government agency head's approval according to the Subsidy Act. For the second issue, the court ruling in the subject case states that the refusal of the head of the central government agency to approve the sale for the purpose of recovering the full amount of the subsidy repayment is likely to be unlawful. The court’s reasons include: ① it violates the repayment methods of estate claims under the Debtor Rehabilitation and Bankruptcy Act in case of insufficiency, ② it infringes on the interests of other creditors, including estate creditors and secured creditors, ③ it hinders the purpose of the bankruptcy system, which aims for the swift and fair liquidation and distribution of the debtor's assets, due to delays in bankruptcy proceedings, and ④ the head of the central government agency, in fact, can secure a preferential repayment over other estate creditors through pre-bankruptcy levy, thus the public interest of recovering subsidies is not significantly compromised. These points suggest that the discretion was excessively exercised or abused, making the refusal likely illegal. This conclusion seems reasonable.