[2] In a case where Eul bank served a set-off notice stating that "if Eul bank fails to repay overdue loans until the designated date, it will offset Eul bank's loan claims with Eul bank's loan claims" after the designated date, Eul bank filed a report on rehabilitation claims, etc. including opposing claims against Gap company subject to set-off after the expiration of the designated period for reporting rehabilitation claims, and then prepared a set-off notice and transmitted it to Gap company, the case affirmed the judgment below that the aforementioned notice of set-off notice should be deemed to be a separate notice of intent of set-off, and it cannot be deemed as a final and conclusive declaration of intent of set-off, and it is difficult to view Eul bank as a legitimate declaration of intent of set-off against the administrator within the designated period for reporting rehabilitation claims

[3] Where there exists a rehabilitation plan approval order, whether the debtor is exempted from liability for all rehabilitation claims, etc. other than the rights recognized under the rehabilitation plan or the Debtor Rehabilitation and Bankruptcy Act, regardless of whether the reported or not is a bond (affirmative in principle)

1. Regarding the plaintiffs' grounds of appeal

According to the reasoning of the judgment below, the court below rejected all of the plaintiffs' primary claims and the first preliminary claims on the ground that the deposit contract in the case of this case was the joint name of the plaintiff Shindong District Housing Association (hereinafter referred to as the "Plaintiff Association") and Gyeongnam Enterprise Ltd. (hereinafter referred to as "Gyeongnam Enterprise"), or that there was a lack of agreement between the plaintiff union, Gyeongnam Enterprise, and the defendant to vest the deposit claim in this case in the plaintiff union and Gyeongnam Enterprise.

In light of the relevant legal principles and records, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the judgment of deposit holders and legal relations among joint project undertakers for

2. As to the Defendant’s ground of appeal

A. As to grounds of appeal Nos. 1 and 2

1) Under the Debtor Rehabilitation and Bankruptcy Act, where a rehabilitation creditor bears obligations against a debtor at the time the rehabilitation procedures commence, and both claims are set-off before the period for filing a report expires, a rehabilitation creditor may set-off without resorting to the rehabilitation procedures only within the said period (Article 144(1)). Moreover, after the commencement of rehabilitation procedures, a rehabilitation creditor may set-off his/her claims against a debtor (Article 56(1)). Since the right to perform the debtor’s business, and to manage and dispose of his/her assets, the declaration of intention of set-off shall be placed

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On April 7, 2015, the Seoul Central District Court appointed the Nonparty ( Address 1 omitted) as a custodian for the company Nam-gu, and decided to commence rehabilitation procedures, including rehabilitation claims, from April 28, 2015 to May 13, 2015.

B) On April 30, 2015, the Defendant served a notice of set-off (hereinafter “instant notice of set-off”) with the purport that the recipient is a Sinam-si, Chungcheongnam-si, which is the domicile of the headquarters of the Sinam-si, and the Defendant served a notice of set-off (hereinafter “instant notice of set-off”) with the purport that “The payment of deposits of the Sinam-si, in arrears of loans, has been suspended, and the loan in arrears has been repaid until May 4, 2015, and if not repaid until the said date, it is expected to offset the Defendant’s deposit claims with the Defendant’s loan claims.”

C) On May 11, 2015, the Defendant reported the total amount of KRW 202,079,816,181 of rehabilitation security rights and rehabilitation claims, including the counterclaims against the company taking off a set-off.

D) On May 14, 2015, the Defendant: (a) prepared an internal document stating that “a total of KRW 1,367,248,903,00 in the balance of the deposit account in the name of the Gyeonggi-do Enterprise is offset by the same amount out of the loans for corporate ordinary driving capital”; and (b) transmitted the balance to the Gyeonggi-do Enterprise by facsimile.”

3) In light of such factual relations, given that the Defendant did not mention the specific scheduled date of set-off in the instant notice of scheduled set-off, and that the Defendant reported a claim including the opposite claim even if the Defendant did not repay the loan until the designated date in the notice of scheduled set-off, and that it was prepared and transmitted a set-off proposal on the premise that the period for reporting the claim was still not yet set-off even after the lapse of the period for reporting the claim, the instant notice of scheduled set-off should be deemed to be a notification to urge the repayment of the overdue loan, and if the repayment is not made by the designated date, it is difficult to view it as a final and conclusive declaration of intent of set-off.

4) Therefore, the lower court’s rejection of the Defendant’s counterclaim on the grounds that it is difficult to deem the Defendant to have expressed his/her legitimate intent of offset against the custodian within the reporting period of rehabilitation claims is justifiable in accordance with the aforementioned legal doctrine. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the arrival of a declaration of intent, the legal doctrine on the

B. Ground of appeal No. 3

Unless there are special circumstances, such as omitting any right mistakenly confirmed by the custodian, the debtor is exempted from liability for all rehabilitation claims and rehabilitation security rights except for any right recognized under the rehabilitation plan or the Debtor Rehabilitation Act, regardless of whether it is a reported claim or not, unless there is any special circumstance such as omission of the reported claim (Article 251 of the Debtor Rehabilitation Act).

According to the reasoning of the judgment of the court below, the court below rejected the defendant's defense of set-off premised on the fact that the defendant's claim against the Kimnam company was exempted in all except for the rights recognized in the rehabilitation plan as a result of the approval of the rehabilitation plan, even if the defendant reported the full amount of the claim containing the opposite claim within the period for reporting the claim, submitted a list of creditors who acknowledge the existence of the opposing claim, but received a confirmation of existence of the opposite claim from the defendant, and excluded the defendant's counterclaim from the list of creditors.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and it did not err by misapprehending the legal doctrine on the exemption of rehabilitation claims, etc.

C. Regarding ground of appeal No. 4

According to the reasoning of the lower judgment, the lower court rejected the Defendant’s assertion that, on the grounds as indicated in its reasoning, it is difficult to regard the instant notice of set-off as a legitimate declaration of set-off against the company, and that Article 67(2) of the Debtor Rehabilitation Act cannot be applied by analogy to an act contrary to the method of exercising the right specified in the law, the said provision may be deemed as being lawfully set-off by analogy

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error by misapprehending the legal principles on the scope of offset.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by the plaintiffs are assessed against the plaintiffs, and the costs of appeal by the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)