[2] The case holding that the judgment of the court below which held that Eul bank's exercise of set-off right is erroneous in the misapprehension of the legal principle in case where Eul bank's set-off right is set-off against Eul bank's loan claim against Eul pursuant to the basic terms and conditions of bank credit transaction (for corporate use) and Eul bank's set-off right is against the principle of good faith in a case where Eul bank's set-off right is printed on Eul bank's written request for the consent of the right to set-off of the right to set-off on Eul bank's deposit account and Eul bank's written request for the consent of the right to set-off of the right to set-off

1. Regarding ground of appeal No. 1

The argument in this part of the grounds of appeal is with the purport that the court below was unlawful to determine that the phrase "if a pledger bears a debt before the date of consent of the pledge, he shall be dissatisfied with the set-off clause, such as a bank transaction agreement or a loan certificate, etc., if the pledger bears a debt before the date of consent of the pledge, he shall be dissatisfied with the right of set-off." (hereinafter referred to as "the set-off clause in this case").

However, the lower court acknowledged the validity of the offset clause of this case, but determined that the exercise of the offset right is contrary to the good faith principle, and thus, this part of the ground of appeal is merely an error of the lower court’s judgment on the premise different from the lower court’s

2. Regarding ground of appeal No. 2

A. A financial institution has a legitimate right to offset against the deposit obligation with the opposing claim of the deposit claim claimant, and there is a reasonable expectation that the claim can be recovered smoothly by exercising that right in the future. Thus, in order to hold the offset right as an abuse of rights or a violation of the good faith principle, there must be special reasons to deem that the exercise of the offset right is not worth preserving legal protection in light of the specific and individual circumstances that led to the exercise of the offset right, such as where the financial institution has a duty to cooperate or protect the other party or the third party even though it has a duty to cooperate or protect his own legitimate right (see Supreme Court Decision 2003Da28, Sept. 9, 2005).

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

(1) On April 1, 2009, Entertainment (hereinafter “KD”) entered into a credit transaction agreement with the Defendant to obtain a loan by designating KRW 1.5 billion (hereinafter “the instant loan”) on April 1, 2010 as the due date (which was extended on April 1, 2011). The basic terms and conditions of the bank credit transaction agreement incorporated into the said credit transaction agreement are deemed to have significantly deteriorated the debtor’s credit preservation due to commencement of liquidation procedures, merger with the deficit company, suspension of operation, suspension of business, bankruptcy of the relevant company, and legal dispute that may affect the company’s management, and if it is anticipated that the Defendant’s credit preservation would substantially have a significant risk, the Defendant would demand in writing payment, seizure, etc., and recovery of credit, and the Defendant would have to immediately lose the Defendant’s interest and have to pay back all obligations to the Defendant, and the Defendant would have to set off obligations to the obligor’s obligations against the Defendant, notwithstanding Article 7(1)6(1) of the said Act.

(2) On September 30, 2010, the Plaintiffs purchased bonds with warrants (hereinafter “each of the instant bonds”) with the issue price of KRW 1 billion issued on September 30, 2010 and the maturity date of September 30, 2013, which was September 30, 2013, which was issued by Human Entertainment from Korea Securities Co., Ltd. (hereinafter “Korea Securities Co., Ltd”).

(3) On October 4, 2010, Entertainment created a pledge on each of the deposit claims of KRW 300 million on September 30, 2013 for each of the instant deposits to the Defendant (hereinafter “each of the instant deposits”). In order to secure the repayment of each of the instant deposits, the term deposit claims of KRW 300 million against Plaintiff 1 (hereinafter “instant deposit claims”) and the Plaintiff Company Li Capital (hereinafter “Plaintiff Capital”) at KRW 300 million on each of the deposit claims of KRW 300 million on September 30, 2013 for each maturity (hereinafter “instant deposit claim”). The term of deposit transaction agreement, which appears to have been incorporated into each of the instant deposit contracts, stipulates that the Defendant should be notified in advance and obtain consent from the Defendant in case of transfer of deposits or pledge.

(4) On the same day, the Plaintiffs, the pledger and the pledgee, submitted to the Defendant a written request for acceptance of each of the instant pledge, stating the phrase “to establish a pledge on each of the instant deposits for the pledgee and to request the issuance of certificates of deposit with the pledgee’s joint signature.” The Defendant, the debtor of each of the instant deposit claims, consented to the said request for acceptance of each of the instant pledge. Each of the instant written request for acceptance of each of the instant pledge claims was printed with the content set forth above, and was signed and sealed by entertainment and the Plaintiffs, respectively.

(5) On March 28, 2011, the Financial Supervisory Service’s request for inquiry and publication related to entertainment in the electronic publication system, suspension of trading stock certificates, change of the period of suspension of trading stock certificates due to the occurrence of a reason for delisting, refusal of an auditor’s opinion on an audit report, etc. was publicly announced. The Defendant offseted the instant deposit claim against the instant loan claim on April 20, 201, on the ground that it constitutes a reason for suspension of business under Article 7(4)6 of the Framework Terms and Conditions for Credit Transactions (for companies), as prescribed by the said Terms and Conditions, on March 29, 201, on the ground that it constitutes a reason for suspension of business under Article 7(4)6 of the said Terms and Conditions.

(6) Meanwhile, on April 6, 2011, Plaintiff 1 received an order of seizure and assignment for the execution of a pledge against the instant deposit claim No. 1 on the part of the Defendant on April 11, 201, and the said order of seizure and assignment was served on the Defendant on April 11, 201. Plaintiff 1 was served on April 20, 201 upon receipt of an order of seizure and assignment for the execution of a pledge against the instant deposit claim No. 2 under the order of seizure and assignment for the execution of a pledge against the instant deposit claim on April 20, 2011.

C. Based on the aforementioned factual basis, the lower court determined as follows: (i) the Defendant had a claim for the loan amounting to KRW 1.5 billion against an entertainment at the time of accepting the right of pledge; (ii) each deposit account of this case was not opened before the consent of the pledge; and (iii) each of the deposit claims of this case was acquired by opening each of the deposit accounts of this case on October 4, 2010 for the purpose of securing each of the bonds of this case; (iii) it was impossible to establish each of the deposit claims of this case solely for the purpose of providing loans to the Plaintiffs as collateral; and (iv) it was not possible for the Defendant to have known that each of the deposit claims of this case was not opened for the purpose of offsetting each of the above loans of this case; and (iii) it was not possible for the Defendant to have known that each of the above deposit claims of this case was established for the purpose of offsetting loans of this case; and (iv) it appears that there was no specific reason to view that each of the above deposit claims of this case as collateral of this case.

D. The above judgment of the court below is not correct in light of the aforementioned legal principles and facts.

(1) A financial institution, including a bank, provides a special agreement that allows a set-off of claims, such as deposits, even if there is seizure of claims, such as loans, by ensuring that the debtor's repayment of claims may be deprived of benefit due to such claims as loans, etc., and Article 7 (4) 6 and Article 10 (1) of the Bank Credit Transaction Terms and Conditions (for a company) of this case constitutes an immediate special agreement. In addition, the Supreme Court recognizes the validity of special agreement, such as loss of benefit due, etc., and recognizes the validity of such special agreement, the third party obligor bank, etc. may exercise the right of set-off without limitation, since the third party obligor's deposit claims, such as loans, etc., reach the set-off immediately (see Supreme Court Decision 2003Da7623, Jun. 27, 2003). Meanwhile, the establishment of a pledge right for a designated claim cannot be set-off without the consent of the pledgee to the third party obligor or the third party obligor's consent to the set-off against the third party obligor (see Article 45).

Considering this point, each of the instant requests for acceptance of the right of set-off is basically based on precedents and transaction practices that recognize the validity of special agreements, such as transfer of deposit claims and notification of the pledge to the pledger and pledgee regarding special agreements prohibiting transfer of deposit claims, and it is reasonable to conclude that each of the instant requests for acceptance of the right of set-off provided to allow the pledger and pledgee to exercise the right of set-off as stipulated in the said special agreements, as a requisite for setting-off of the right of set-off through a set-off clause, based on precedents and precedents that recognize the validity of special agreements, such as loss of benefit within the time limit stipulated in the basic terms and conditions for banking transactions, etc., and it is reasonable to conclude that the Defendant, who deals with business affairs in bulk and in a lump sum, has provided the Defendant with the signature and seal of the meaning of confirming that there was withholding of the above objection from the Defendant.

(2) The circumstance that the Entertainment opened each of the savings accounts of this case solely for the purpose of offering the plaintiffs' security against the plaintiffs' claims, or that the plaintiffs trusted that each of the savings claims of this case will be used only for the above purpose. In order to establish a new deposit for the purpose of establishing a pledge, the records show that the deposit claim of this case is not subject to the bank's offset right and only functions as a security against the secured claim of the pledge right in the instant case where there is no record that the deposit claim of this case did not be subject to the bank's offset right, and it is limited to the unilateral intent of the Entertainment and the plaintiffs, and the defendant did not engage in any act that could give the plaintiffs the above trust, and rather, the defendant suspended the objection that it may exercise the offset right against each of the savings claims of this case through the reservation clause of the offset right of this case.

(3) In addition, as recognized by the lower court, that the Defendant had sufficiently known the purpose and purport of the opening of each of the instant savings accounts, or there was no special opportunity to newly receive a security, it is difficult to deem that there was a special circumstance that the Defendant renounced the right of set-off or promised to restrict the exercise of the right of set-off, or that there was a duty to cooperate with the Plaintiffs in the exercise of the Plaintiffs’ right of set-off. Moreover, even if there was a circumstance that each of the instant savings claims was not established before the establishment of a pledge, and would not have occurred without the right of set-off, or that the right of set-off would have been exercised if the Plaintiffs knew that the instant loans were already created at the time of the establishment of a pledge, and that such circumstance would have not been expected at the time of the establishment of a pledge, or that there was no circumstance that could deny the Defendant’s exercise of the right of set-off against the instant deposit claim.

(4) Therefore, barring any special circumstance, the circumstances cited by the lower court cannot be readily concluded that the Defendant’s exercise of the right to offset constitutes an abuse of rights or good faith principle.

E. Nevertheless, the lower court determined that the Defendant’s exercise of the right of set-off goes against the good faith principle. In so doing, it erred by misapprehending the legal doctrine on abuse of the right of set-off, thereby affecting the conclusion

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)