CHAPTER II COMMENCEMENT OF REORGANIZATION PROCEDURE

Article 30 (Commencement of Proceedings)

(1) If the company cannot relay the debts that are due without incurring significant inconvenience to the continuation of the business, the company may apply to the court for the commencement of reorganization proceedings. This provision shall also apply in cases where there is a danger of bankruptcy in respect of the company.

(2) In respect of the case referred to in the latter sentence of the preceding paragraph, any creditor with a claim equivalent to one-tenth or more of the capital, or any stockholder holding stocks equivalent to one-tenth or more of the total issued stocks, may make the application.

(3) In cases where a creditor or stockholder has applied for the commencement of reorganization proceedings, the court may order the company to present data on the management and the condition of its property.

Article 31 (Application by Company following Bankruptcy)

An application for the commencement of reorganization proceedings by a company in liquidation or by a company following a declaration of bankruptcy, shall be made by a resolution in accordance with Article 434 of the Commercial Act.

Article 32 (Written Applications)

(1) An application for the commencement of reorganization proceedings shall be made in writing.

(2) The application shall include the following matters:

  1. Names and addresses of the applicant and his legal representative;
  2. Trade name of the company, location of the head office, name of representative, and if the head office is in a foreign country, the location of the principal business office in the Republic of Korea and the name of the representative in the Republic of Korea;
  3. Purport of the application;
  4. Facts giving rise to the commencement of reorganization proceedings;
  5. Object of the company, and the business situation thereof;
  6. Total stocks issued by the company, the amount of capital, asset and liabilities, and other matters relating to financial status;
  7. Other proceedings or disposition in respect of company property known to the applicant; and
  8. Opinion of the applicant regarding the reorganization programs, if any. (3) If the application is made by a creditor, the application shall include the amount and cause of the claim he holds, and if made by a stockholder, the number of his holding sticks, respectively, in addition to the matters referred to in the preceding paragraph.

Article 33 (Explanation)

(1) Upon application for the commencement of reorganization proceedings, an explanation shall be given of the facts giving arise to the commencement of reorganization proceedings.

(2) If a creditor or stockholder makes an application pursuant to the preceding paragraph, he shall give an explanation of the amount of his claim, or the number of his holding stocks.

Article 34 (Prepayment of Expenses)

(1) Upon application of the commencement of reorganization proceedings, an amount determined by the court shall be paid in advance as expenses for the proceedings.

(2) The amount as referred to in the preceding paragraph shall be determined by the court taking into consideration the magnitude etc. of the case. If the application is made by a person other than the company, expenses arising after reorganization proceedings are commenced shall be determined by also taking into consideration the amount able to be furnished from the company property.

(3) An immediate appeal may be made against a decision regarding the prepayment of expenses.

Article 35 (Notification, etc. to Supervisory Administrative Agency)

(1) When an application is made for the commencement of reorganization proceedings, the court shall notify this fact to the administrative agency supervising the affairs of the company, the Securities and Exchange Commission, the head of the revenue office with jurisdiction over the location of the head office of the company (if the head office is in a foreign country, the principal place of business in the Republic of Korea; hereinafter in this Article the same shall apply), and the head office of the Seoul Special Metropolitan City, other metropolitan cities, Do or Shi/Kun/Ku (namely autonomous Ku) or equivalent public bodies where the head office is located.

(2) The court may, if it deems it necessary, demand a statement of opinion regarding the reorganization proceedings of the company from the administrative agency supervising the affairs of the company, the Securities and Exchange Commission and the person who has the authority of collection in respect of the claim prescribed under Article 122 (1).

(3) Any person referred to in the preceding paragraph may make a statement of his opinion regarding the reorganization proceedings of the company to the court.

Article 36 (Examination)

If an application has been made for the commencement of reorganization proceedings, the court shall conduct an examination of the representative of the company (if the head office is in a foreign country, the representative in the Republic of Korea; hereinafter the same shall apply).

Article 37 (Order, etc. of Suspension of Other Proceedings)

(1) Where an application has been made for the commencement of reorganization proceedings, the court may, if it deems it necessary, upon the application of an interested person or ex officio, order the suspension of auction proceedings, legal proceedings in respect of the property relationships of the company pending before an administrative agency for the execution of a compulsory execution, provisional seizure or injunction already taken in respect of company property as a result of bankruptcy proceedings, composition proceedings, reorganization claims, or reorganization security, until a decision on the application for the commencement of reorganization proceedings is reached; provided, that this shall not apply in respect of compulsory execution, provisional seizure or injunctions, or auction proceedings where it might inflict an unreasonable loss on the creditors or person requesting the auction.

(2) Where an application is made for the commencement of reorganization proceedings, the court may, if it deems it necessary, order the suspension of dispositions for arrears as prescribed by the national Tax Collection Act or dispositions for arrears issued in accordance with precedents on the collection of national taxes, or the disposition of goods offered as security for the tax obligation. In this case, consideration shall be given to the opinion of the person with the authority of collection.

(3) The decision to suspend referred to in the preceding paragraph, shall become ineffective upon the making of a decision regarding the application for the commencement of reorganization proceedings, or upon the expiration of five (5) months from the day the decision on suspension is made.

(4) The statute of limitation shall not run during the period of suspension of the disposition under Paragraph (2).

(5) The court may modify or cancel the decision to suspend referred to in paragraphs (1) and (2).

(6) The court may, if it deems it necessary for the recovery of the company, after the preservative measures has been taken, order the cancellation of a provisional seizure or injunction on the property of the company executed after the application for the commencement of reorganization proceedings upon the application of a receiver or ex officio. In this case, the court shall cause to furnish security.

(7) The claims incurred on the company or claims for expenses on the company regarding the proceedings thereof, caused by the proceedings which have lost effect under the provision of Paragraph (6), shall be claims for common profits.

Article 38 (Conditions for Commencement of Proceedings)

The court shall reject any application for the commencement of reorganization proceedings in the following cases; provided, that in the case of Paragraph (5) the court shall listen to the opinion of the administrative committee (hereinafter referred to as the "administrative committee"):

  1. Where the expenses for the reorganization proceedings have not been paid in advance;
  2. Where a creditor or stockholder has acquired the claim or stock to make an application for commencement of the reorganization proceedings;
  3. Where the application is made primarily with the intention of evading bankruptcy or financial obligations;
  4. Where bankruptcy proceedings and composition proceedings are pending before the court, and the general interest of the creditors are served by following those proceedings;
  5. Where reorganization is unlikely;
  6. Where the application is made primarily with the intention of evading performance of a tax obligation or obtaining some benefit from the fulfilment of a tax obligation;
  7. Deleted;and
  8. Where the application is not sincere.

Article 39 (Preservative Measures and Receivers)

(1) The court may, upon the application of an interested person or ex officio, order the provisional seizure or disposition, or any other necessary preservative measures in respect of the affairs and property of the company, prior to the making of a decision on the commencement of reorganization proceedings. In this case, the court shall listen to the opinion of the administrative committee.

(2) The court shall, if an interested person has applied for the preservative measures under the provision of Paragraph (1), decide whether to adopt preservative measures within fourteen (14) days from the application date.

(3) The court may, if it deems necessary, order the management under a preservative receiver, in addition to the preservative measures under the provision of Paragraph (1), listening to the opinion of the administrative committee.

(4) The court may modify or cancel the measures referred to in Paragraphs (1) and (2), listening to the opinion of the administrative committee.

(5) Judicial proceedings in accordance with the provision of Paragraphs (1), (3) and (4), and judicial proceedings rejecting that application shall be made by decision. An immediate appeal may be brought against such decision.

(6) The immediate appeal prescribed in Paragraph (5) does not have the effect of suspending execution.

(7) The court shall, upon taking measures in accordance with the provisions of Paragraph (3), or modifying or cancelling such measures, issue public notice of this fact.

(8) The court shall, upon taking measure in accordance with Paragraphs (1),(3), and (4), ex officio and without delay, charge the registry having jurisdiction over the subject-matter of the right subject to the measure, or the registry in the location of the head office of the company, or if the head office is in a foreign country, the seat of the principal place of business in the Republic of Korea, with registering such measures.

(9) The commission to register under paragraph (8) shall be accompanied by a certified copy or abstract of the decision.

(10) The provisions of Paragraphs (8) and (9) shall apply mutatis mutandis to what is recorded as the property of the company. [This Article Wholly Amended by Act No. 5517, Feb. 24, 1998]

Article 39-2 (Restriction on Withdrawal of Application)

(1) No application for the commencement of reorganization proceedings or for preservative measures may be withdrawn without obtaining the permission of the court after measures are taken in accordance with Article 39 (1) and (2).

(2) An immediate appeal may be brought against the judgment regarding permission under paragraph (1). [This Article Newly Inserted by Act No. 3380, Mar. 5, 1981]

Article 39-3 (Application Mutatis Mutandis of Provisions concerning Receivers and Decisions on Commencement)

The provisions of Article 53 through 55, 68 through 70, 94 through 101, and 186 shall apply mutatis mutandis to the preservative receiver and decision regarding preservative measures. [This Article Wholly Amended by Act No. 5182, Dec. 12, 1996]

Article 40 (Investigative Committee)

(1) The court may, if it deems it necessary, listen to the opinion of the administrative committee and appoint an investigative committee of one or several members to investigate the facts giving rise to the commencement of reorganization proceedings, the existence or not of the reasons as prescribed in subparagraphs 2 through 7 of Article 38, the situation of company affairs and property, the issue of preservative measures regarding the affairs and property of the company, and other matters necessary for the commencement of reorganization proceedings, and may order the submission by the committee of a written statement of opinion regarding the appropriateness of the commencement of reorganization proceedings.

(2) Members of the investigative committee shall be appointed from among those with the knowledge and experience necessary, who do not have an interest in the subject-matter of the investigations.

(3) In cases where the company is a small and medium enterprise prescribed by the Article 2 (1) of the Basic Small and Medium Enterprise Act (except for a company regarded as the small and medium enterprise pursuant to the provision of Article 2 (3) thereof and hereinafter referred to as the "small and medium enterprise"), a member of the administrative committee (hereinafter referred to as the "member of the administrative committee") may be appointed as an investigative committee.

Article 41 (Investigations by Investigative Committee)

(1) The Investigative committee may require any director, auditor, manager or other employee of the company to submit a report regarding the affairs and property situation of the company, and may inspect any books of account, documents, finances or other possessions of the company.

(2) The investigative committee may, if necessary, appoint an appraiser with the permission of the court.

(3) In carrying out the investigation, the investigative committee may, with the permission of the court, request the assistance of an executive officer.

Article 42 (Control, etc. over Investigative Committee)

(1) The investigative committee shall be subject to the supervision of the court.

(2) The court shall deliver to the members of the investigative committee, documents certifying their appointment.

(3) The investigative committee shall, in carrying out their duties, present the documents referred to in the preceding paragraph upon the demand of any interested person.

Article 43 (Duty of Care of Investigative Committee)

(1) The investigative committee shall carry out their duties with the care and diligence required of a responsible receiver.

(2) If any member of the investigative committee fails in his duty of care under the preceding paragraph, the investigative committee is under a responsibility to compensate jointly and severally the loss of any interested person.

Article 44 (Dismissal of Investigative Committee)

The court may, if any serious ground exist, dismiss the investigative committee upon the request of an interested person or ex officio. In this case, an examination of the investigative committee shall be undertaken.

Article 45 (Written Decision on Commencement)

The written decision of the commencement of reorganization proceedings shall include the date and time of the decision.

Article 46 (Matters to be Determined Simultaneously with Commencement)

The court shall, at the same time as reaching a decision on the commencement of reorganization proceedings, appoint one or several receivers, and determine the following matters, listening to the opinion of the administrative committee and the council of creditors under the provision of Article 173-2 (hereinafter referred to as the "council of creditors"):

  1. The time-period for a report on the reorganization claim, reorganization securities, and stocks; provided, that such period shall be between two weeks and four months form the date of the decision;
  2. The date of the first meeting of interested persons; provided, that such date shall be within two months from the date of decision; and
  3. The date of the investigation of the reorganization claim and securities; provided, that the period between such date and the end of the application period shall be between one week and two months.

Article 47 (Public Notice of Commencement and Service)

(1) The court shall, upon reaching a decision on the commencement of reorganization proceedings, immediately issue public notice of the following matters:

  1. The text of the decision on commencement of reorganization proceedings;
  2. The name and title of the receiver;
  3. The period and dates determined in accordance with the preceding Article; and
  4. A decree to the effect that any debtors of the company and holders of company property should not repay such debt or deliver such property to the company, and they should report to the receiver the fact that they are liable for such debt, or that they possess such property, within a specified period.

(2) A document stating the matters referred to in the preceding paragraph together with a summary of the opinion of the investigative committee, shall be served on the receiver, the company and all known reorganization creditors, security holders and stockholders, and a document stating the matters referred to in the preceding paragraph shall be served on the investigative committee, the known debtors of the company and holders of company property, respectively.

(3) The provision of the two preceding paragraph shall apply mutatis mutandis to cases where changes occur in respect of any of the matters referred to in of paragraph (1) 2 through 4; provided, That public notice regarding changes in the dates of the investigation of reorganization claims or securities shall not be required.

(4) Any person who wilfully or negligently neglects the report under paragraph (1) 4, shall compensate for any consequent loss inflicted on company property.

Article 48 (Notification of Commencement)

(1) Either the matters prescribed in Article 47 (1) or the summary of the opinion of the investigative committee shall be notified to the administrative agency supervising the affairs of the company, the Minister of Justice and the Securities and Exchange Commission.

(2) The provisions of the preceding paragraph shall apply mutatis mutandis to cases where changes occur in respect of any of the matters prescribed in Article 47 (1) 2 and 3.

Article 49 (Holding of Documents)

Documents concerning the request for commencement of reorganization proceedings as well as investigation documents and the written opinion of the investigative committee shall be held by the court to be offered for inspection by interested persons.

Article 50 (Appeal)

(1) An immediate appeal may be brought against a judgment regarding an application for the commencement of reorganization proceedings.

(2) The provisions of Article 37 shall apply mutatis mutandis to case where an immediate appeal is brought against a decision to reject an application for the commencement of reorganization proceedings.

(3) If the appeal court deems that the appeal proceedings are contrary to any Act, or that the appeal is groundless, it shall decide to dismiss or reject the appeal.

(4) If the appeal court deems that the appeal is well-grounded, it shall revoke the original decision, and refer the case back to the original court.

Article 51 (Revocation of Commencement Decision)

(1) When a decision to revoke the decision on commencement of reorganization procedure become final, public notification of the text thereof shall be issued immediately.

(2) The provisions of Article 47 (2) and 48 (1) shall apply mutatis mutandis to the case referred to in the preceding paragraph.

(3) In the case referred to in paragraph (1), the receiver shall settle the claim for common profits, and if there is any objection, make a deposit of it in favour of the creditors.

Article 52 (Reduction, etc. of Capital after Commencement)

(1) Reduction of capital, issuance of any new stocks or debentures, the merging or dissolution of companies, modifications or the continuation of company organization, or the continuation of company organization, or the apportionment of any profits or interest, shall not be permitted without following the proceedings for reorganization, after commencement and prior to the completion of the reorganization proceedings.

(2) The permission of the court shall be obtained in cases where it is intended to modify the articles of association of the company without following reorganization proceedings, from the commencement to the completion of the reorganization proceedings.

Article 53 (Management of Affairs and Property after Commencement)

(1) Where a decision is reached to commence reorganization proceedings, the right to operate the company business and to manage and dispose of the property shall be within the exclusive jurisdiction of the receiver.

(2) No company director or equivalent person may infringe upon the authority of the receiver prescribed in paragraph (1), nor intervene unlawfully in the exercise of such authority.

Article 53-2 (Receivers Duty of Inspection and Report)

(1) A receiver shall inspect the management and property of the company without delay after the commencement of reorganization proceedings and report to the court and the administrative committee the condition of the management and property of company.

(2) A receiver shall, if there exists a request from a creditor, furnish information and data regarding reorganization proceedings as prescribed by the regulations of the Supreme court; provided, that the receiver may refuse such if there is any justifiable reasons.

(3) When a receiver has obtained knowledge about the existence of claims under the provision of subparagraph 1 of Article 72 (1), the court shall apply for determination and preservative measures under the provision thereof. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]

Article 54 (Acts required Permission of Court)

The court may, if it deems it necessary, require that the receive obtain the permission of the court in carrying out the following acts:

  1. The disposal of company property;
  2. The acquisition of any property by transfer;
  3. Loans;
  4. The cancellation or termination of any contract prescribed under Article 103;
  5. The institution of legal proceedings;
  6. Reconciliation;
  7. Waiver of rights;
  8. The approval of the claim for common profits and the right of redemption; and
  9. Other acts as designated by the court.

Article 54-2 (Consignment of Permitted Business to Member of Administrative Committee)

The court may consign to a member of the administrative committee the permitted business regarding the ordinary course of business among any acts of the subparagraphs of Article 54 as prescribed by the regulations of the Supreme Court. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]

Article 54-3 (Objection to Act of Member of Administrative Committee)

(1) A person who finds the decision or measures made by a member of the administrative committee under the consignment in accordance with the provision of Article 54-2 is not satisfactory may raise an objection to the court in writing.

(2) A member of the administrative committee shall, in case where s/he deems it well-founded on reason to raise an objection under the provision of Paragraph (1), take proper measures thereto.

(3) A member of the administrative committee shall, in case where s/he deems it groundless to raise an objection under the provision of Paragraph (1), transmit to the court such matter with reason therefor within three (3) days.

(4) Raising objection under the provision of Paragraph (1) shall not have the effect of suspending execution.

(5) The court shall make a decision on the objection raised with reason, order proper measures to the member of the administrative committee if it deems it is well-grounded, and notify such statement to the person who has raised an objection. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]

Article 55 (Idem)

Any act performed in the absence of the permission required by the preceding Article, shall be null and void; provided, that it shall not be opposable as against a third person who has acted in good faith.

Article 56 (Conduct of Company after Commencement)

(1) After the commencement of reorganization proceedings, the company shall not assert the validity of any juristic act taken in respect of company property, relation to the reorganization proceedings.

(2) Any juristic act taken by the company on the day reorganization proceedings are commence, shall be presumed to have been taken after the commencement of reorganization proceedings

Article 57 (Acquisition of Rights after Commencement)

(1) The validity of the acquisition of a right in respect of company property relating to a reorganization claim or security, after the commencement of reorganization proceedings, without an act of the company, shall not be asserted in relation to reorganization proceedings.

(2) The provision of paragraph (2) of the preceding Article shall apply mutatis mutandis to an acquisition as referred to in the preceding paragraph.

Article 58 (Registration after Commencement and Registration)

(1) The validity of registration made after the commencement of reorganization proceedings as a result of registration which took place prior to the commencement of reorganization proceedings concerning nat real property or ship, and the validity of provisional registration under Article 3 of the Registration of Real Estate Act, shall not be asserted in respect of its relationship with reorganization proceedings; provided, that this shall not apply in the case of registration or provisional registration which took place without the knowledge of the fact of commencement of reorganization proceedings on the part of the holder of the right of registration.

(2) The provisions of the preceding paragraph shall apply mutatis mutandis to any registration or provisional registration regarding the creation, transfer or modification of a right.

Article 59 (Repayment to Company following Commencement)

(1) The validity of any repayment made to the company without knowledge of that fact after the commencement of reorganization proceedings, may be asserted even in relation to the reorganization proceedings.

(2) The validity of any repayment made to the company without knowledge of that fact after the commencement of reorganization proceedings, may be asserted in its relationship with reorganization proceedings only within the limits of the profits received by company property.

Article 60 (Presumption of Good or Bad Faith)

In the application of the provisions of two preceding Article, it shall be presumed that the fact was not known prior to public notice of the commencement of reorganization proceedings, and presumed to have been known after such notice.

Article 61 (Co-ownership)

(1) In cases where the company has joint ownership of a property right together with another person, the receiver may make a request for division despite the existence of a stipulation against division, when reorganization proceedings are commenced.

(2) In the case referred to in the preceding paragraph, other co-owners may acquire the company's share upon the payment of considerable compensation.

Article 62 (Right of Reacquisition)

The commencement of reorganization proceedings shall have no effect on the right to reacquire from the company property not belonging to the company.

Article 63 (Prohibition of Reacquisition of Transferred Securities)

Any person who transferred property to the company prior to the commencement of reorganization proceedings, cannot reacquire such property on the basis it was for the purpose of security.

Article 64 (Reacquisition of Goods in Transit)

(1) In cases where a vendor dispatches goods for the purpose of sale to the vendee, and the vendee fails to pay the price in full or to receive the goods at the destination, the vendor may, if reorganization proceedings are commenced in respect of the vendee, reacquire such goods; provided, that the receiver may, with the permission of the court, pay the price in full and request the delivery of such goods.

(2) The provisions of the preceding paragraph shall not exclude the application of the provisions of Article 103.

Article 65 (Right of Reacquisition by Commission Agent)

The provision of paragraph (1) of the preceding Article shall apply mutatis mutandis to cases where a commission agent charged with the purchase of goods, dispatches such goods to the consignor.

Article 66 (Compensatory Right of Reacquisition)

(1) If the company transfers the property subject to the right of reacquisition prior to the commencement of reorganization proceedings, the person holding the reacquisition right may demand a transfer of the claim for counter performance. This provision shall also apply in cases where the receiver transfers property which is the subject of the reacquisition right.

(2) In the case referred to in the preceding paragraph, where the receiver has received counter-performance, the holder of the reacquisition right may demand the supply of property received by the receiver as counter-performance.

Article 67 (Suspension, etc. of Other Proceedings)

(1) When a decision has been made for commencement of the reorganization proceedings, no application for bankruptcy or the commencement of composition or reorganization proceedings may be made, and no orders for compulsory execution, provisional seizure, injunctions, execution of security right, or public auction under the Auction Act, may be issued against any company property in accordance with a reorganization claim or security, and any compulsory execution, provisional seizure, injunction, execution of security right, or public auction under the Auction Act already ordered against company property pursuant to bankruptcy proceedings, reorganization claims or security right, shall be suspended, and any reconciliation proceedings shall become ineffective.

(2) When a decision is made to commence reorganization proceedings, no disposition for arrears pursuant to the National Tax Collection Act or according to national tax collection precedents, and no disposition of goods provided as security for tax obligations, shall be made in respect of company property pursuant to a reorganization claim or security, until the approval of the reorganization programs or the completion of reorganization proceedings, or for one year after the decision is made, and any disposition already made shall be suspended.

(3) The court may, if it deems it necessary, extend ex officio or upon the request of the receiver, the period of one year specified in Paragraph (2) above within the limit of six (6) months.

(4) Deleted.

(5) The statute of limitations shall not run in the period in which dispositions are prohibited or suspended pursuant to Paragraphs (2) and (3).

(6) The court may, if it deems that there would be no detriment to reorganization, order the continuation of the suspended proceedings or dispositions, ex officio or upon the application of the receiver or a person with the authority of collection regarding the claim prescribed in Article122 ( 1) , and if the court deems it necessary for reorganization, it may order the cancellation of dispositions or procedures suspended with or without the offering of any security, ex officio or upon the request of the receiver; provided, that this will not apply in the case of bankruptcy proceedings.

(7) Any claims arising in respect of the company as a result of proceedings which lost effect in accordance with Paragraph (1), claims for expenses in respect of the company regarding such proceedings, or claims for expenses in respect of the company regarding dispositions or proceedings continued in accordance with the preceding paragraph, shall be claims for common profits.

Article 68 (Suspension of Legal Proceedings)

When a decision has been made to commence reorganization proceedings, legal proceedings relating to company property shall be suspended.

Article 69 (Taking Over of Proceedings)

(1) Any legal proceedings suspended pursuant to the preceding Article, which are not related to reorganization claims or securities, may be taken over by the receiver or the other party. In this case, the claim for litigation expenses in respect of the company, shall be a claim for common profits.

(2) If the reorganization proceedings are completed prior to the taking-over under the preceding Paragraph, the company shall naturally take over the legal proceedings.

(3) If the reorganization proceedings are completed after the taking-over occurs under the preceding paragraph, the legal proceedings shall be suspended. In this case, the company shall take over the legal proceedings.

(4) In the case referred to in the preceding Paragraph, the other party may also take over the legal proceedings.

Article 70 (Cases pending before Administrative Agency)

The provisions of the two preceding Article shall apply mutatis mutandis to any case concerning company property pending before the administrative agency at the time the reorganization proceedings are commenced.

Article 71 (Transfer)

(1) If litigation relating to company property is pending in another court at the same time as commencement of the reorganization proceedings, the court dealing with reorganization may decide to request the transfer thereof. This provision shall also apply in cases where litigation is pending in another court after the commencement of reorganization proceedings.

(2) When the decision referred to in the preceding paragraph is made, the court receiving the request for transfer shall transfer the litigation to the court dealing with reorganization.

(3) The transfer referred to in the preceding paragraph may be carried out even during the interruption or suspension of the legal proceedings.

(4) The provisions of the three preceding paragraphs shall not apply to any litigation pending in a superior court.

Article 72 (Court Measures)

(1) Where a decision has been made for the commencement of reorganization proceedings, the court may, if it deems it necessary, ex officio or upon the request of the receiver, order the following measures in addition to those prescribed in Article 39:

  1. Assessment of any claim for the payment of shares to promoters, directors, auditors, inspectors or liquidators, or for damages on the basis of their responsibility; and
  2. Preservative measures taken in respect of the property of the promoters, directors, auditors, inspectors, or liquidators in relation to the claim for the payment of shares or damages referred to in the preceding subparagraph.

(2) The court may, if it deems it urgently necessary, order the measures referred to in subparagraph 2 of the preceding paragraph, even prior to the making of a decision to commence reorganization proceedings.

(3) The provisions of Article 39 (3) and

(4) shall apply mutatis mutandis to any measures referred to in paragraph (1) 2 and paragraph (2).

Article 73 (Commencement of Proceedings for Assessment of Claims for Payment of Shares etc.)

(1) Upon the making a request for assessment pursuant to paragraph (1)1 of the preceding Article, an explanation shall be given of the facts giving rise thereto.

(2) Where the court commences ex officio assessment proceedings, it shall issue a decision to that effect.

Article 74 (Judgment concerning Assessment)

(1) Judgment of the assessment and judgments rejecting the application for assessment shall be handed down by a decision with the reasons attached.

(2) The court shall undertake an examination of the interested persons prior to the decision.

Article 75 (Actions for Objection)

(1) Any person-who is dissatisfied with the judgment of assessment, may bring an action for objection within the peremptory term of one month after being served with the decision.

(2) Any judgment authorizing or modifying the assessment, shall have the same effect as a judgment ordering performance of compulsory execution.

(3) Actions under paragraph (1) shall fall under the exclusive jurisdiction of the court concerned with reorganization, and pleadings may not begin unless and until the period prescribed in the said paragraph has elapsed.

(4) If several actions are pending simultaneously, the pleadings and judgments shall be joined.

Article 76 (Effect of Assessment)

If no action is brought within the period prescribed in Paragraph (1) of the preceding Article, the assessment shall have the same effect as a final and conclusive judgment ordering performance. This provision shall also apply in cases where the action is dismissed.

Article 77 (Interruption of Prescription)

An application for assessment shall be regarded as a judicial claim in regard to suspension of the statute of limitations. This provision shall also apply to the ex officio commencement of assessment proceedings.

Article 78 (Right of Denial)

(1) The following acts may be denied in the interests of company property after the commencement of reorganization proceedings:

  1. Acts performed by the company in knowledge of the fact that it might be prejudicial to any reorganization creditors or security holders (hereinafter in this Article referred to as the "reorganization creditors, et al." ); provided, that this provision shall not apply to cases where the person who benefited from such act, did not know that it might be prejudicial to the reorganization creditors, et al. at the time of such act;
  2. Acts prejudicial to the reorganization creditors, et al., and acts concerning the offer of any security or the cancellation of an obligation, committed by the company after applications for the suspension of payment, bankruptcy, or the commencement of composition proceedings or reorganization proceedings (hereinafter referred to in this Article as the "suspension of payment, etc." ); provided, that this is limited only to cases where the person who benefited from such act, had knowledge of the fact that suspension of payment, etc. took place, or that such acts were prejudicial to the reorganization creditors, et al. at the time of the act ;
  3. Acts concerning the provision of security or the cancellation of an obligation, performed by the company upon suspension, etc. of the payment, or within ,thirty days prior to such act, which do not fall within the duties of the company, or the method or time of which does not fall within the duties of the company; provided, that this shall not apply to cases where at the time of such act, the creditor had no knowledge of the fact that the company performed the act knowing that it might be prejudicial to its equality with other reorganization creditors, et al., or that payment was suspended after suspension of payment takes place : and
  4. Gratuitous acts performed by the company after payment is suspended. or within six months prior to such act, and acts for value to be performed simultaneously.

(2) The provisions of the preceding paragraph shall not apply in respect of acts concerning the cancellation of an obligation or provision of security performed by the company for a person with collection authority concerning the claim prescribed in Articles 121 (1) 5 and 122 (1) .

Article 79 (Examples of Cases of Payment of Obligations under Bills)

(1) Where a person issued with a bill from a company loses his rights under the bill against one or several debtors, the provisions of Paragraph (1) of the preceding Article shall not apply but for the receipt of the bill.

(2) In the case prescribed in the preceding Paragraph, if the final debtor or the person charged with the issue of the bill, knew or should, in the exercise of due care and diligence, have known of the application for the suspension of payment, bankruptcy, or the commencement of composition proceedings or reorganization proceedings, at the time of issuance of the bill, the receiver may require that person to redeem the amount paid by the company.

Article 80 (Requirements for Opposing Changes in Rights and Denial of Requirements for Validity)

(1) Where actions necessary in order to oppose a third person by means of the creation, transfer or modification of a right, are performed after an application is made for the suspension of payment, bankruptcy. commencement of composition proceedings or reorganization proceedings, the act may, if performed in bad faith upon the expiration of fifteen days after the creation, transfer or modification of the right, be denied; provided, that this shall not apply to cases where formal registration takes place after the recording of provisional registration. with respect to any registration.

(2) The provisions of the preceding paragraph shall apply mutatis mutandis to any registration or registration giving effect to the acquisition of a right. Article 81 (Denial of Executory Acts) The right of denial may be exercised in cases where there is an executory title of debt in respect of the act to be denied, or where the act is based on an executory act.

Article 82 (Exercise of Right of Denial)

(1) The right of denial shall be exercised by the receiver in accordance with legal proceedings, or a request for or plea of denial.

(2) The legal proceedings and cases of requests for denial referred to in the preceding paragraph, shall fall within the exclusive jurisdiction of the court of reorganization.

Article 83 (Explanation of Grounds for Request of Denial)

Upon making a request for denial, an explanation of the grounds for such request shall be given.

Article 84 (Judgment regarding Request for Denial)

(1) Any judgment accepting or rejecting a request for denial shall be made by a decision with the reason attached.

(2) The court shall, before making a decision, hear from the other party or subsequent purchaser.

Article 85 (Action of Objection)

(1) Any person who is dissatisfied with a decision accepting a request for denial, may bring an action of objection within a peremptory term of one month after being served with the decision.

(2) The action referred to in the preceding paragraph shall fall within the exclusive jurisdiction of the court of reorganization.

Article 86 (Idem)

When a judgment authorizing a decision to accept a request for denial, becomes final, the decision shall have the same effect as a final and conclusive judgment. This provision shall also apply in cases where no action is brought during the period prescribed in Paragraph (1) of the preceding Article, and where the action is rejected.

Article 87 (Effect of Exercise of Denial Right)

(1) The exercise of the right of denial shall restore the property of company to its original status.

(2) In cases where the act prescribed in Article 78 (1) 4 is denied, the other party shall, if he acted in good faith at the time of such act, be permitted to redeem the profits to the extent that they exist.

Article 88 (Status of Other Party)

(1) In cases where an act of a company is denied, the other party may, if any counter-performance received by the company exists in respect of company property, claim the return thereof, and if any profit is accruing from the counter-performance, the other party may exercise his right as a public interest creditor within the limits of such profits.

(2) If there are no profits accruing from counter-performance, the other party may exercise his right as a reorganization creditor for redemption of the equivalent value. This provision shall also apply in respect of the difference where the value of the counter-performance is larger than the existing profit.

Article 89 (Restoration of Other Party's Claim)

In cases where the act of the company is denied, if the other party returns the performance received or redeems the value thereof, his claim shall thereby be restored to its original status.

Article 90 (Right of Denial against Subsequent Purchasers)

(1) The right of denial may also be exercised against a subsequent purchaser, in the following cases:

  1. Where the subsequent purchaser knows that there is a cause of denial against the former party, at the time of the subsequent purchase; and
  2. Where the subsequent purchaser made the purchase through a gratuitous act or act for value to be carried out simultaneously, and there is a cause of denial against the former party.

(2) The provisions of Article 87 (2) shall apply mutatis mutandis in cases where the right of denial is exercised under subparagraph 2 of the preceding Paragraph.

Article 91 (Restrictions on Denial due to Knowledge of Suspension of Payment)

Any act performed prior to the expiration of one year from the date of application for the commencement of reorganization proceedings, shall not be denied on the grounds that the fact of the suspension of payment was known .

Article 92 (Extinctive Prescription)

If the right of denial is not exercised within two years from the commencement of reorganization proceedings, the statute of limitations shall expire. This provision shall also apply where twenty years have elapsed from the date of the exercise of the right.

Article 93 (Actions for Revocation. etc. by Creditor)

(1) If an action brought by a reorganization creditor pursuant to Article406 (1) of the Civil Act, or an action for denial under the Bankruptcy Act, is pending at the time the reorganization proceedings are commenced, the legal proceedings shall be suspended.

(2) The provisions of Article 69 shall apply mutatis mutandis to the case referred to in the preceding paragraph. In this case, the term "company" used in paragraphs (2) and (3) of the said Article, shall be read as "reorganization creditor or trustee in bankruptcy".

CHAPTER II-2 ADMINISTRATIVE COMMITTEE

Article 93-2 (Establishment)

The administrative committee shall be established at a district court prescribed by the regulations of the Supreme Court for the appropriate and prompt disposal of reorganization matters, bankruptcy matters and composition matters. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]

Article 93-3 (Duty and Right of Administrative Committee)

(1) The administrative committee shall carry out each of the following subparagraphs under the direction of the court:

  1. Presentation of the opinions on the appointment of a receiver, manager, and investigative committee;
  2. Supervision and evaluation regarding the appropriateness of the performance of duties of a receiver, manager, and investigative committee;
  3. Examination about the reorganization programs;
  4. Organization of the council of creditors and conveyance of information on creditors;
  5. Evaluation on the circumstances of reorganization proceedings in progress; and
  6. Other duties prescribed by laws and decrees or the court.

(2) The administrative committee may entrust a part of the duties to a member of the administrative committee for the effective performance of each duty of Paragraph (1) above.

(3) The court may, in cases where it deems not appropriate for a member of the administrative committee to perform such duties under the provision of Paragraph (2), request the administrative committee to entrust such duties to another member of the administrative committee.

(4) In the cases where the administrative committee is not established, the particulars regarding the member of the administrative committee among the regulations of Articles 40 (3), 54-2, 54-3, and 284 (1) and particulars regarding the administrative committee among the regulations of the proviso of Article 38, Articles 39 (1), 39 (3), 39 (4), 40 (1), 53-2 (1), 94, 112-2 (3), 247 (3), 247 (4), 274, and 277 shall not apply. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]

Article 93-4 (Composition of Administrative Committee)

(1) The administrative committee shall be composed of more than three (3) and less than fifteen (15) members including one (1) chairman.

(2) The term of office of a member of the administrative committee shall be three (3) years and the majority of the members shall be full-time commissioners.

(3) A member of the administrative committee shall be designated by the head of a district court among any of the following persons:

  1. A person qualified for an attorney-in-fact or a certified public accountant;
  2. A person who has the working experience for more than fifteen (15) years at a banking institution under the Banking Act or a person who has been in service as an officer of the listed company;
  3. A person who obtained a degree of master or more in jurisprudence, business administration, economics, or similar studies and was engaged in such field related thereto for more than seven (7) years; or
  4. A person with learning and experience who can be treated as the same as the person provided in subparagraphs 1 through 3.

(4) Any person who falls under any one of the following subparagraphs may not become a member of the administrative committee:

  1. Incompetent person, quasi-incompetent person, or bankrupt who is not reinstated;
  2. A person who is sentenced to imprisonment or heavier penalty and the execution of which has terminated (including the execution regarded as being terminated) or five (5) years have not expired after the remission of the execution (?);
  3. A person who is sentenced to suspension of execution of imprisonment or heavier penalty and two (2) years have not expired after the termination of the term of suspension (?);
  4. A person who is sentenced to the suspension of pronouncement of imprisonment or heavier penalty and is under the term of suspension; or
  5. A person whose qualification is lost or suspended in accordance with the judgement of the court or other laws.

(5) The administrative committee shall be resolved with the attendance of the majority of its members and the concurrence of the majority of the members attended.

(6) The establishment, organization and operation, of the administrative committee, and requirements for qualification, guarantee of the office and disciplinary actions, of the members of the administrative committee, and other necessary matters shall be determined by the regulations of the Supreme Court.

(7) A member of the administrative committee shall be regarded as a public officer in the application of the punishment pursuant to Criminal Code and other regulations under the law. [This Article Newly Inserted by Act No. 5517, Feb. 24, 1998]