1. Article 422 Subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides for “when a bankruptcy creditor bears any obligation to the bankrupt estate after the declaration of bankruptcy.” If the above provision permits a set-off of any obligation borne by the bankruptcy creditor after the declaration of bankruptcy against any bankruptcy claim, it would allow the bankruptcy creditor to receive repayment in preference to other bankruptcy creditors, and thus would prejudice the fairness among the bankruptcy creditors. As such, the above provision aims at preventing the occurrence of a fair performance among the bankruptcy creditors. Therefore, “when a debtor bears any obligation to the bankrupt estate after the declaration of bankruptcy” under the above provision does not mean only where the obligation itself arises after the declaration of bankruptcy (see Supreme Court Decision 2003Da35918, Dec. 26, 2003). It includes cases where a bankruptcy creditor bears any obligation to the bankruptcy estate after the declaration of bankruptcy after the third party’s claim against the bankruptcy creditor that occurred before the declaration of bankruptcy is declared.

The court below held that the case where the plaintiff was liable to the bankrupt estate by acquiring the claim for the judgment of this case against the plaintiff of Han Bank Co., Ltd. (hereinafter " Han Bank"), after the bankruptcy was declared against South Korea Ltd. (hereinafter "Seoul Bank"), constitutes "when the bankruptcy creditor bears the obligation to the bankrupt estate after the declaration of bankruptcy" under Article 422 subparagraph 1 of the Debtor Rehabilitation Act is based on the above legal principles. Thus, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to Article 422 subparagraph 1 of the Debtor Rehabilitation Act.

2. On the grounds indicated in its reasoning, the lower court determined that: (a) the instant judgment amount is not “debt to be borne at the time of declaration of bankruptcy” under Article 416 of the Debtor Rehabilitation Act; and (b) constitutes “debt to be borne after declaration of bankruptcy” under Article 422 Subparag. 1 of the Debtor Rehabilitation Act; and

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on Article 416 of the Debtor Rehabilitation Act, contrary to what is alleged in the grounds of appeal.

The allegation in the grounds of appeal in this part is that the South Korean land price claim against the plaintiff, which is the object of the claim for the judgment deposit claim in this case, is identical to the case where the South Korean land price continues to hold the above claim against the plaintiff on the premise that the secured debt was repaid and the secured claim was recovered. Therefore, the claim for the judgment deposit in this case constitutes the obligation to be borne by the plaintiff at the time of the declaration of bankruptcy in South Korean land. However, according to the evidence duly admitted by the court below, the transaction structure of this case using the trust is entrusted to the Han Bank, which is the trustee, with the current and future credit sales claims owned by the South Korean land price as the truster, and the Han Bank grants the first-class beneficiary interest to the South Korean land company, which is the first-class beneficiary. The above limited company borrows the above right to benefit from the lender as security, and the Han Bank pays it again to the South Korean land price, and the above limited company is a debt to the lender with the above right to benefit in this part. Therefore, it cannot be accepted in this part of the grounds of appeal.

3. The lower court determined that: (a) one bank’s acquisition of the above claim for the price of goods is based on a claim trust agreement concluded with South Korea; and (b) the Defendant’s acquisition of the above claim for the price of goods is based on a credit trust agreement concluded with South Korea; and (c) the payment of profits for the first-class beneficiary was completed in the investigation into the bankruptcy estate (the “unenfed amount” of the lower judgment appears to be a clerical error in the judgment); (c) the bank terminated the above trust agreement after the bankruptcy was declared and the Plaintiff becomes the obligor upon the transfer of the claim for the instant amount; and (d) it cannot be deemed that the Defendant planned to return the claim for the instant amount as a matter of course at the time the bankruptcy was declared; and (b) even if the termination of the trust agreement occurred in the bond trust, the trustee cannot be deemed as having returned to the beneficiary or the truster; and (c) even if the South Korean bank transferred the above claim for the price of goods to one bank for the purpose of securing the obligation, the Plaintiff is obligated only at the Bank at the time of bankruptcy, and cannot be deemed as exempt from the obligation.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the part of the lower judgment that deemed that South Korea’s land price claim was transferred to Han Bank for the purpose of securing the obligation is inappropriate, but the lower court’s conclusion that the instant judgment did not constitute a conditional obligation under Article 417 of the Debtor Rehabilitation Act is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on conditional obligation

4. The lower court determined that the Plaintiff’s act of setting-off is not against the good faith principle in light of the circumstances in the holding that the prohibition of set-off under Article 422 of the Debtor Rehabilitation Act is a mandatory provision and that the set-off is invalid.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the good faith principle, contrary to what is alleged in the grounds of appeal

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

Justices Kim So-young (Presiding Justice)