[회생] 확정[각공2017상,171]
The case holding that in a case where Gap corporation, which commenced the rehabilitation procedure, bears the liability for the electricity charges incurred prior to the commencement of the rehabilitation procedure, notified the Korea Electric Power Corporation that it would suspend the supply of electricity to Gap corporation's workplace if it did not pay the amount equivalent to the amount of the electricity charges for the three-month period prior to the commencement of the rehabilitation procedure, and the administrator of Gap corporation filed an application for the payment of the electricity charges with the court, the Korea Electric Power Corporation's demand for the payment of the deposit to Gap corporation and the notification that it would suspend the payment
In a case where Gap corporation, which commenced the rehabilitation procedure, bears the obligation to pay electricity charges incurred prior to the commencement of the rehabilitation procedure to the Korea Electric Power Corporation, and the Korea Electric Power Corporation notified Gap corporation that it would suspend the supply of electricity to Gap corporation's workplace unless it pays the amount equivalent to the amount of the electricity charges for three months prior to the commencement of the rehabilitation procedure, and Gap corporation's administrator filed an application for the payment of the electricity charges with the court, the case holding that the act of the creditor who continuously bears the obligation to supply electricity to the debtor on the ground of the non-payment of the rehabilitation claim, as well as the act of the creditor who continuously demands the debtor on the ground of the non-payment of the rehabilitation claim and other obligations on the ground that the rehabilitation procedure commenced and the act of demanding the debtor on the condition that the debtor continuously supplies the other obligations, such as the provision of security, is unlawful, barring any special circumstance.
Article 122(1) of the Debtor Rehabilitation and Bankruptcy Act
Dasung Shipping Co., Ltd.
No permission shall be granted to file an application for the payment of a deposit for electrical charges on December 5, 2016 by a legal administrator.
1. Summary of the motion of this case
On July 25, 2016, the instant rehabilitation procedure commenced for the debtor. The debtor bears KRW 408,779,050 for the electric charges incurred to Korea Electric Power Corporation prior to the commencement of the instant rehabilitation procedure. Meanwhile, the debtor paid the electric charges that occurred after the commencement of the instant rehabilitation procedure within the due date.
On December 2, 2016, the Korea Electric Power Corporation notified the debtor on December 12, 2016 that he would suspend the supply of electricity to the debtor's workplace unless he/she pays the debtor the amount equivalent to the amount of the electricity charge (a approximately KRW 1.2 billion) for three months until December 12, 2016. The debtor's manager applied for the payment of the electricity charge to this court on December 5, 2016.
2. Determination
According to Article 122(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”), the other party to a bilateral contract who is obligated to continue to supply a debtor may not refuse the performance of his/her obligation after an application is filed for commencing rehabilitation procedures on the ground that the other party to a bilateral contract fails to repay rehabilitation claims arising from the supply prior to an application for commencing rehabilitation procedures. This provision aims to prevent an exclusive supplier, such as electricity, gas, and water supply, from hindering the debtor’s rehabilitation by receiving preferential repayment by taking advantage of his/her exclusive status,
According to this, barring any special circumstance, the act of a creditor who bears a continuing supply obligation not only suspends the supply to the debtor on the ground of the non-payment of the rehabilitation claim, but also demanding the debtor as a condition of continuous supply of other obligations, such as the provision of security, on the sole ground of the commencement of the rehabilitation procedure, is illegal.
Therefore, even though there are no circumstances such as overdue charge of electricity charges that occurred after the commencement of the rehabilitation procedure of this case, the Korea Electric Power Corporation's act of demanding the debtor to pay a security deposit and notifying the debtor of the failure to pay a security deposit is unlawful (On the other hand, Article 79 (1) 4 of the electricity supply clauses and Article 61 (2) of the Regulations on the Regulation of Terms and Conditions of Electricity and Conditions (which provides that the Korea Electric Power Corporation may demand a security measure on the basis of the amount equivalent to three months of the estimated monthly charge on the condition that the supply is continued for the customer under rehabilitation procedure) is against the above provisions of Article 122 (1) of the Act guaranteeing the continuous payment of the debtor under rehabilitation procedure, and thus, it is null and void by Article 6 of the Act on the Regulation of Terms and Conditions since it has lost fairness due to a clause unfairly unfavorable to the customer).
Thus, the Korea Electric Power Corporation's application for the payment of electric charges of this case is based on the Korea Electric Power Corporation's request for an illegal deposit and notification of the suspension of electric power, and its permission is not recognized.
Judges Kim Jong-man (Presiding Judge)