[예금][하집2001-2,327]
In case where the bankruptcy creditor becomes liable for the debt to the bankrupt of the extinguished corporation which occurred prior to the merger while the bankruptcy creditor merges with the extinguished corporation after the bankruptcy was declared bankrupt, whether the bankruptcy creditor may offset the debt with the bankruptcy claim (negative)
Article 95 subparag. 1 of the Bankruptcy Act prohibiting a set-off of obligation to the bankrupt estate after the declaration of bankruptcy does not stipulate the exceptional grounds for the prohibition of set-off, such as "when the burden of obligation to the bankrupt estate is due to legal grounds," unlike subparagraph 2, and the Bankruptcy Act provides for the prohibition of such set-off. If the Bankruptcy Act permits a set-off against the bankrupt by using the bankruptcy claims acquired after the declaration of bankruptcy of the bankrupt as the automatic claim, the right to preferential reimbursement is recognized for the bankruptcy creditor, thereby preventing such a merger from undermining the principle of creditor equality, which is the most important guiding principle of the bankruptcy procedure. Since the merger takes place by an agreement between the parties to the merger and the other parties to the bankrupt through a merger after the declaration of bankruptcy, even if the other parties to the merger bear the obligation to the bankrupt through the merger are merged with the other parties to the bankrupt after the declaration of bankruptcy, it cannot be viewed that the above set-off of obligation to the extent that the merger takes effect before the declaration of bankruptcy, even if it is extremely unfavorable before the declaration of bankruptcy, in light of the legislative purport of Article 95 subparag.
[1] Article 95 subparagraph 1 and subparagraph 2 of the Bankruptcy Act
The Bankruptcy Trustee of the New World General Finance Corporation (Law Firm Busan General Law Office, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)
Han Bank Co., Ltd. (Law Firm Han & Han, Attorneys Yellow-tae et al., Counsel for the plaintiff-appellant)
Busan District Court Decision 200Na21980 delivered on April 4, 2001
1.Paragraph 1 of the judgment of the court below, including the plaintiff's claim extended in the trial, shall be amended as follows:
(a) The defendant shall pay to the plaintiff 668,715,519 won with 6% interest per annum from October 16, 200 to April 4, 2001 and 25% interest per annum from the next day to the date of full payment.
(b)the remainder of the plaintiff's claims are dismissed;
2. The costs of the suit shall be borne by the Defendant.
3.The portion of subparagraph 1(a) which was not declared provisional execution by the original court may be provisionally executed.
1. Purport of claim
The defendant shall pay to the plaintiff 68,715,519 won, and 6% per annum from October 16, 2000 to December 2, 200, and 25% per annum from the next day to the date of full payment (the extension of the claim for damages for delay in the trial).
2. Purport of appeal
The judgment below is revoked. The plaintiff's claim is dismissed.
3. Purport of incidental appeal;
The defendant shall pay to the plaintiff 68,715,519 won 6% interest per annum from October 16, 2000 to December 2, 2000.
1. Basic facts
The following facts are not disputed between the parties, or can be recognized in full view of the whole purport of the pleadings in the entries in Gap evidence 1, Eul evidence 2-2, and Eul evidence 6.
(a) On October 15, 1997, the New World Financial Co., Ltd. (hereinafter referred to as the "Bankruptcy Co., Ltd.") entrusted the New World Financial Co., Ltd. (hereinafter referred to as the "Stim Bank") with 501,200,000 (the amount of the original per unit shall be 1 won) beneficiary certificates of the New World Financial Investment Trust (hereinafter referred to as the "Stim Bank").
(b)The bankrupt was declared bankrupt by the Busan District Court on September 26, 1998, and the defendant was subsequently merged on January 1, 1999 (a surviving corporation).
(c) On July 14, 200, the plaintiff was appointed from the Busan District Court as the bankruptcy trustee of the bankrupt, and around October 200, the above beneficiary certificate entrustment agreement was terminated to the defendant and the return of the above entrustment amount was claimed.
(d)As of October 16, 200, the balance of the operating balance of the above beneficiary certificates entrusted as of 711,724,236 won and the balance after deducting the corporate tax withheld at 42,104,840 won and the trust fee 903,877 won and the trust fee at 668,715,519 won.
2. The parties' assertion and judgment
A. Judgment on the Plaintiff’s assertion
According to the above facts, the defendant is obligated to pay to the plaintiff the balance of the above beneficiary certificate consignment amount of KRW 668,715,519 and delay damages.
B. Judgment on the defendant's defense, etc.
(1) The defendant asserts that on December 13, 2000, the plaintiff's claim on the balance of the above beneficiary certificate consignment amount was set off against the defendant's bankruptcy claim amounting to KRW 2,254,320,000.
On October 7, 1997, the defendant purchased the bill of exchange amounting to 4 billion won for the issuance of the bill of exchange which was guaranteed by the bankrupt on 1997, but because the bill of exchange was refused to pay due to the non-transaction, the defendant had a claim for the guarantee of the bill against the bankrupt. After the partial repayment, the remaining 2,254,320,00 won was incurred, and the defendant declared to the plaintiff on December 13, 200 that the claim for the balance of the deposit of the beneficiary certificate was set off on an equal amount with the bond of the above bankruptcy claim, and the fact that the defendant declared to the plaintiff on December 13, 200 that the above bankruptcy claim was set off on an equal amount with the automatic bond of subparagraph 1-3, and it can be recognized as either there is no dispute between the parties, or based on the statement in the evidence No. 1-2
However, the "if the bankruptcy creditor bears the obligation to the bankrupt estate after the declaration of bankruptcy" under the Bankruptcy Act is not allowed to offset (Article 95 subparagraph 1 of the Bankruptcy Act), and as such, the defendant, who is a bankruptcy creditor, bears the obligation to the bankrupt of the National Security Bank only after the merger of the National Security Bank after the declaration of bankruptcy, the defendant's offset against the passive obligation is not allowed under the Bankruptcy Act.
(2) The Defendant asserts that since the merger with the Bolar Bank is a comprehensive succession that is merely a mere fact that the Defendant continues to assume the rights and obligations of the Bolar Bank, it shall be determined on the basis of the time when the Bolar Bank bears the obligation to the Plaintiff, and that the merger has already been finalized at the time of declaration of bankruptcy and all other bankruptcy creditors could have foreseen, and that the Defendant may be deemed to have expected to set off the obligation of the Bolar Bank by acquiring the obligation of the Bolar Bank
However, Article 95 subparag. 1 of the Bankruptcy Act prohibiting a set-off against the bankrupt estate "if the bankruptcy creditor bears the obligation to the bankrupt estate after the declaration of bankruptcy" does not stipulate the exceptional grounds for the prohibition of set-off, such as "when the burden of the obligation is due to a statutory reason," and Article 95 subparag. 2 of the Bankruptcy Act provides that if the Bankruptcy Act permits a set-off against the bankrupt by using the bankruptcy claim acquired after the declaration of bankruptcy as an automatic claim, the right to preferential reimbursement against the bankruptcy creditor would result in preventing the merger because it would prejudice the principle of creditor equality, which is the most important guiding principle of the bankruptcy procedure. Since the merger takes place by an agreement between the parties to the merger and the other parties to the bankrupt after the declaration of bankruptcy, even if the bankruptcy creditor merges with the other parties to the merger who bears the obligation to the bankrupt through the merger after the declaration of bankruptcy, it cannot be seen that the above comprehensive set-off period cannot be seen as an exception in cases where the defendant already bears the obligation before the declaration of bankruptcy, even if it is extremely unfavorable before the merger or the defendant bears the obligation before the declaration of bankruptcy.
Ultimately, the defendant's defense is without merit.
3. Conclusion
Therefore, the defendant has a duty to dispute over the existence and scope of the above-mentioned beneficiary certificate entrustment amounting to KRW 668,715,519 and the above-mentioned amount at the plaintiff's request. Thus, from October 16, 200 after the date of the plaintiff's request, the defendant has a duty to pay the defendant the above-mentioned substitute amount to the plaintiff from April 4, 2001 until April 4, 2001, which is the date of the decision of the court below, with 6% per annum under the Commercial Act and 25% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment (in the original trial, the plaintiff reduced the purport of the claim in accordance with the defendant's defense, so it is reasonable for the defendant to resist the existence and scope of the above-mentioned substitute amount until the date of the decision of the court below to the date of the decision of the court below to determine the existence and scope of the above-mentioned substitute amount. Thus, the plaintiff's claim of this case has been rejected part of the plaintiff's appeal.
Judges Lee Hong-ju (Presiding Judge)