[2] In the case of voluntary retirement of shares, the time when a share subscription price claim occurs

[3] Whether the issuance of a bill constitutes an effective requirement for offset in cases where an expression of intent of offset is made by using a bill as an automatic claim outside of a lawsuit (affirmative in principle)

[2] In the case of voluntary retirement of shares, even if the effect of the retirement takes place upon the completion of the procedure for the effect of the share under Article 342 of the Commercial Act, the time when the shareholder acquires the share retirement payment does not coincide with the time of voluntary retirement, and at least when the capital reduction procedure under the Commercial Act is completed with the consent of the shareholder on voluntary retirement, the share retirement payment claim occurs. However, in the case where the share certificates are not issued to the company by the shareholder until then, the company can only assert the claim for the share retirement payment due to the simultaneous performance defense.

[3] In cases where a declaration of intent of offset is made by using a bill as an automatic claim outside a lawsuit, the issuance of the bill is unnecessary and the issuance of the bill does not take effect unless there is a delivery of the bill. The delivery of the bill in this case shall be the effective condition of offset. Thus, the person who expresses his/her intent of offset shall assert and prove it.

Unlike the case of compulsory retirement of shares, in the so-called voluntary retirement of shares acquired by a company as its own shares and retired as its own shares, the effect of the retirement takes place when the company acquires its shares and completes not only the capital reduction procedure under the Commercial Act but also the procedure for the effect of the stock under Article 342 of the Commercial Act (see Supreme Court Decision 90Meu22698 delivered on April 14, 1992). However, in the case of voluntary retirement, even if the effect of the retirement takes place upon the completion of the procedure for the validity of the stock under Article 342 of the Commercial Act as above, the time when the shareholder acquires the stock purchase price claim does not coincide with the time of voluntary retirement, and at least when the capital reduction procedure under the Commercial Act is completed with the consent of the shareholder on voluntary retirement, it is reasonable to view that the stock purchase price claim can only be asserted as a ground for simultaneous performance of the stock certificates against the shareholder's claim for the stock retirement price.

The court below rejected the claim that the share retirement bond becomes effective on the ground that the plaintiff's primary cause of claim, i.e., voluntary retirement, when the defendant acquired shares subject to retirement from a shareholder for the purpose of retirement and invalidated them after acquiring shares for the purpose of retirement (as to the shares of this case 1,92,755 among the shares of this case, 1,92,72,727 shares, the reorganization company Daewoo Motor Co., Ltd. (the company reorganization procedure was commenced on November 30, 200; hereinafter referred to as "treatment Motor") deposited shares to the defendant on January 6, 2005; as to the remaining 28 shares, the share retirement bond becomes effective on November 28, 200 with the defendant's share certificates, regardless of the expiration date of the objection period, since the share retirement of this case is in accordance with the main sentence of Article 343 (1) of the Commercial Act, and thus, it also rejected the claim that the defendant received the share certificates from the creditor of this case.

In light of the above legal principles and records, the defendant's stock retirement in this case is a voluntary retirement, since the defendant acquired the shares of this case from the Daewoo Automobile with the consent of the Daewoo Automobile, which is the shareholder of the stocks subject to the retirement, and it constitutes a voluntary retirement. The validity of the voluntary retirement in this case shall be deemed to take place when the defendant acquired the shares subject to the retirement from Daewoo Automobile as its own shares and completed the procedure of effective stock under Article 342 of the Commercial Act, as alleged in the ground of appeal No. 1. However, the acquisition of the stock purchase price claim for the stock retirement shall be deemed to take place on November 28, 200, which is the date following the expiration date of the period of objection for the creditor of the company, by satisfying the requirements for the consent of the shareholder and the completion of the procedure of capital reduction under the Commercial Act.

Therefore, this part of the judgment of the court below is erroneous in the misapprehension of legal principles as to the point of time of entry into force of voluntary retirement. However, since the court below's conclusion is just in its conclusion that the time of the occurrence of stock retirement claim in this case is when the capital reduction procedure under the Commercial Act is completed, and it is against November 28, 200, which is the day following the expiration date of the period for objection to the company creditor, the argument in the grounds of appeal

2. Effectiveness requirements for offsetting a bill with automatic bonds;

In light of the adopted evidence, the court below found that the defendant notified the Daewoo Motor Vehicle that "the principal of the promissory note issued by the defendant on August 18, 1999 and the interest and interest on the promissory note issued by the defendant on August 27, 1999, which was possessed by endorsement and transfer on December 27, 2000, prior to the expiration of the period for reporting the reorganization claim in the company reorganization procedure for Daewoo Motor Co., Ltd., the defendant sent a notice that "the interest claim against the defendant on and after August 27, 1999, shall be the automatic bond claim, and the interest and interest on the promissory note issued by the defendant on and after August 27, 199, shall be offset against the same amount by the passive bond claim against the defendant on December 28, 200," and that this notice reached the plaintiff on December 28, 200.

However, we cannot agree with the above decision of the court below for the following reasons.

The issuance of a bill is unnecessary and it does not take effect unless there is a delivery of a bill (see, e.g., Supreme Court Decisions 75Da739, Apr. 27, 1976; 76Da299, Mar. 8, 197; 91Da2892, Apr. 9, 191). In this case, the delivery of a bill becomes an effective condition for a set-off, so the person who expresses his/her intent of set-off shall assert and prove it.

According to the records, the defendant is aware that the defendant notified only the declaration of intention of offset to the Daewoo Motor at the time of December 27, 2000 and did not deliver a bill separately. Thus, unless there are circumstances such as consent of the obligor of the bill of exchange, the above offset shall be null and void.

Nevertheless, the court below determined that the defendant's above-off takes effect only with the declaration of intent of offset as stated in its holding. Thus, the court below erred in the misapprehension of legal principles as to the effective requirements for offsetting a bill claim as an automatic claim, which affected the conclusion of its judgment.

3. Whether it falls under the proviso of subparagraph 2 (b) of Article 163 of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005, and the "Company Reorganization Act" hereinafter)

The court below, after compiling the adopted evidence, found the facts as stated in its decision, and found it as follows. He was finally treated as the result of suspension of payment under Article 163 subparagraph 2 of the Company Reorganization Act, and the Defendant's debt for the stock retirement price of this case, which the Defendant used as a set-off claim, occurred on November 28, 200, and at the time of the occurrence of the above obligation, the Defendant was aware of the fact that the payment was suspended. Thus, the Defendant's set-off in this case was prohibited by Article 163 subparagraph 2 of the Company Reorganization Act because the Defendant, a reorganization creditor, was aware of the fact that the payment was suspended, and thus, the Defendant's temporary general meeting resolution of the Defendant, which is the legal relation that forms the basis for the occurrence of the obligation for stock retirement price of this case, constitutes an exceptional set-off under Article 163 subparagraph 2 of the Company Reorganization Act, which is the date of suspension of payment of the Defendant's temporary general meeting prior to November 9, 2000.

However, we cannot agree with the above judgment of the court below for the following reasons.

The legal relation corresponding to the "reasons arising before the reorganization creditor or security holder becomes aware that an application has been filed for the suspension of payment or for bankruptcy, commencement of composition, or commencement of reorganization proceedings" under the proviso of Article 163 subparagraph 2 (b) of the Company Reorganization Act shall be direct to the extent that the creditor would cause a specific offset period to the creditor, and in individual cases, the trust of the reorganization creditor in relation to the security action of offset shall be deemed justifiable in full view of the specific circumstances (see Supreme Court Decision 2003Da61931, Sept. 28, 2005, etc.).

According to the records, the defendant's retirement of the shares was conducted by the defendant's request to retire shares for consideration with the proceeds of sale of hotel in Seoul, which was owned by the defendant for the implementation of the agreement for the improvement of financial structure concluded with the "The Treatment Line Operating Council of Financial Institutions" ("the "Council of Financial Institutions"), and by the approval of the Council of Financial Institutions under the premise that the retired proceeds would be distributed and reverted to the creditor financial institutions belonging to the Council of Financial Institutions. The original purpose of this case was to retire shares of 3,779,127 shares which were offered as security to the creditor financial institutions and to repay the loans to the creditor financial institutions of the company with the proceeds of their retirement, but the Council of Financial Institutions did not reach an agreement between the defendant and the 20th meeting of the above 20th meeting of shareholders with a view to distributing the shares to 30th meeting of the above 20th meeting of shareholders, and there was no specific set-off against the above 13th meeting of shareholders as to the above 20th meeting of shareholders.

Nevertheless, the court below held that the defendant's offset of this case constitutes an exceptional set-off clause under Article 163 subparagraph 2 (b) of the Company Reorganization Act solely on the ground that the resolution for the capital reduction at the above provisional shareholders' meeting was made prior to the suspension of payment of treatment automobiles, as stated in its holding. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 163 subparagraph 2 of the Company Reorganization Act and failing to examine whether the defendant had a specific expectation for the above provisional shareholders' meeting at the time of the above resolution, and such illegality also affected the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)