회생절차 종결 후 미실권 회생채권의 구제방법 󰡈-대법원 2023. 3. 16. 선고 2021다223368 판결 및 그 원심인 서울고등법원(인천) 2021. 2. 5. 선고 2019나89 판결에 대한 평석을 포함하여

Abstract

In the subject cases, the Supreme Court upheld conclusions of the courts below, which endorsed the use of “lawsuit for confirmation” as a redress for “unextinguished rehabilitation claims,” departing from the traditional “lawsuit claiming performance.” However, this judicial stance raises numerous concerns. Primarily, these rulings are in apparent contradiction to recent judgments from the Supreme Court, which designated a performance lawsuit as a relief for unextinguished rehabilitation claims. Secondly, the reference time for determining the specifics and scope of claims varies for “lawsuit claiming performance” and “lawsuit for confirmation,” and the reliance on the reference time used in “lawsuit for confirmation,” which is ahead of the time at which a lawsuit claiming performance is filed, may engender incongruities with practical realities and future conflicts. Thirdly, the inclination towards “lawsuit for confirmation” as a remedy for unextinguished rehabilitation claims presupposes that the results of such legal actions are recorded in the Table of Rehabilitation Creditors. However, this assumption invites several questions regarding its practicality and validity, due to the existence of numerous unresolved issues, such as whether it is appropriate for a Grade V court official, or equivalent, to make corrections to the table of rehabilitation creditors on the grounds that rehabilitation claims which have not been subsumed under the purview of rehabilitation procedures remain unextinguished, and the retroactive conferral of legal efficacy on such unextinguished claims. Fourthly, even if unextinguished rehabilitation claims are documented in the table of rehabilitation creditors following a lawsuit for confirmation, questions arise as to the applicability of the regulations for unconfirmed rehabilitation claims in the rehabilitation plan to these unextinguished claims, and the resolution of disagreements over changes in rights. These uncertainties hint at the potential necessity for a new lawsuit claiming performance. Fifthly, the lawsuit for confirmation and the ensuing mechanisms to contest the table of rehabilitation creditors diverge from those in the lawsuit claiming performance, risking instability of the legal relationship between debtors and creditors. In the judgment of the courts below of the subject cases, the rationale for choosing lawsuit for confirmation over lawsuit for performance as a solution for unextinguished rehabilitation claims is tied more to the issue of alteration of rights for unextinguished rehabilitation claims than to the method of remedy for such claims, and thus is limited in its persuasiveness. These issues necessitate a more detailed examination, which could contribute to an evolving understanding of the complexities surrounding rehabilitation claims.