회생담보권조사확정재판이 계속 중인 채권자의 견련파산절차상 지위 - 대법원 2021.1.28. 선고 2018다286994 판결 -

Abstract

A rehabilitation security right is similar to the right of separation in bankruptcy proceedings, but the right itself is not a security right, but is a claim secured by the debtor’s specific property. The right of separation can be exercised individually without being restricted by bankruptcy procedures, but a rehabilitation security right cannot be exercised individually, and, as in the case of a rehabilitation claim, in principle, the debt can be received only in accordance with the rehabilitation plan. Like a bankruptcy claim, any right of separation can be exercised without reporting and claim allowance procedures. On the other hand, in order for a security right to be recognized as a rehabilitation security right, it must be confirmed through the manager’s listing of rehabilitation secured creditors, reports from the rehabilitation secured creditors, claim allowance proceedings for the rehabilitation security right, and appeal proceedings. In addition, when the authorization for the rehabilitation plan has been granted, the security right is extinguished if the continuation of the right itself is not prescribed in the rehabilitation plan, and the rights of the secured creditors are changed according to the rehabilitation plan. This also applies to cases where bankruptcy proceedings are implemented after the rehabilitation plan is authorized. The reason is that the effect of the decision to grant authorization for the rehabilitation plan is not affected even if the rehabilitation procedures are abolished. Therefore, in cases where bankruptcy procedures are implemented after the rehabilitation plan is authorized, if the plan provides for the continuation of the security right, the rehabilitation security right is treated as the right of separation. In consideration of these, the Supreme Court Decision 2018Da28994 dated on January 28, 2021, which held that, in cases where bankruptcy is declared pursuant to Article 6(1), the existence and scope of the bankruptcy claims or the right of separation in the bankruptcy proceedings should be determined by reflecting all the circumstances, such as the changes in the creditor’s rights after the rehabilitation claims and the rehabilitation security rights, etc. are confirmed in the previous rehabilitation proceedings, and the repayment status until the time the bankruptcy is declared, is deemed reasonable.