Dongyang Life Insurance Co., Ltd. (Attorney Park Jong-sung et al., Counsel for the defendant-appellant)

The Debtor Rehabilitation and Leisure Co., Ltd., the non-party administrator of Dongyang Leisure Co., Ltd. (Law Firm Construction, Attorneys Choi Promotion et al., Counsel for the plaintiff-appellant)

October 16, 2015

Seoul Central District Court Decision 2014Gahap587267 Decided July 24, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

① It is confirmed that there is no lease contract between the Plaintiff and the Defendant as to the real estate stated in the attached Table 2, the obligation to return the lease deposit and the obligation to return the lease deposit based on the modified contract between the Plaintiff and the Defendant as to the real estate listed in the attached Table 3 attached hereto, and the obligation to return the lease deposit based on the modified contract.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. Conclusion, etc. of a lease agreement between the Plaintiff and the Defendant

1) On March 5, 2004, the Plaintiff entered into a lease agreement with the Defendant, setting the lease deposit amount of KRW 9,300,000,000, monthly rent of KRW 936,00,000, and the lease term from March 5, 2004 to March 4, 2024. The Defendant operated a golf club (hereinafter “○○○○○○○○○○○ golf club”) as a membership golf club (hereinafter “○○○ golf club”) on the real estate stated in the attached Form 1 list leased by the Plaintiff.

2) In addition, on May 30, 2005, the Plaintiff entered into a lease agreement with the Defendant on the lease deposit amounting to KRW 1,000,000,000, monthly rent of KRW 344,16,660, and the lease term from May 30, 2005 to May 29, 2025 (hereinafter collectively referred to as the “each of the instant lease agreements”), and the Defendant operated the △△△△△ △ △△ △△ △△ △ △ △ △ △ △ (hereinafter referred to as the “△ △ △ △ △ △”), a membership golf course in the real estate listed in the attached Form 3 List leased by the Plaintiff, and the two of the above two golf courses were collectively referred to as the “each of the instant golf courses”).

(b) Decision on commencing rehabilitation procedures, etc. for the defendant;

On October 17, 2013, the Defendant received a decision to commence rehabilitation procedures by Seoul Central District Court 2013 Ma187, and obtained a decision to commence rehabilitation procedures on July 11, 2014, and the Nonparty becomes a legal administrator. However, on May 21, 2015, rehabilitation procedures for the Defendant were completed, and the Defendant taken over the instant lawsuit (hereinafter “Defendant” without distinguishing the Defendant and the legal administrator) around that time.

C. Plaintiff’s motion to escape and declaration of set-off against the Defendant

1) As indicated in the attached Table 5, the Plaintiff owned 32 unit membership rights (a total of 13,080,000,000 unit membership rights) issued by the Defendant and 9 unit membership rights (a total of 700,000,000 unit membership rights) of △△△△△△△△△△△, as indicated in the Defendant’s list (hereinafter collectively referred to as “instant membership rights”), and filed an application for withdrawal against the Defendant on October 17, 2013 where the decision on commencing the rehabilitation procedure was rendered with respect to the Defendant.

2) On the other hand, on October 17, 2013, the Plaintiff expressed his/her intent to offset the amount of KRW 10,300,000 against the Defendant’s claim for return of the lease deposit against the Plaintiff (hereinafter “claim for return of the instant lease deposit”) by the Defendant’s automatic claim, out of the Plaintiff’s claim for return of the membership deposit against the Defendant (hereinafter “instant claim for return of the membership deposit”), and on October 22, 2013, the written public notice reached the Defendant’s order on October 22, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 4, the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

Since the Plaintiff offsets the Defendant’s claim for the refund of the instant membership deposit against the Defendant from the amount equal to that of the Defendant’s claim for the refund of the lease deposit against the Plaintiff, there is no obligation for the refund of the lease deposit against the Defendant.

B. Defendant’s assertion

At the time of the offset, ① the claim for the refund of the lease deposit of this case, which is a passive claim, did not have yet occurred due to the termination of each of the lease contracts of this case, ② the Defendant’s failure to approve the Plaintiff’s application for the withdrawal, and did not have yet occurred. ③ Even if the Plaintiff acquired the claim for the refund of the lease deposit of this case and the claim for the refund of the membership deposit, even if the Plaintiff was aware of the Defendant’s application for the commencement of the rehabilitation procedure, the offset of this case was prohibited pursuant to the main sentence of Article 145 subparag. 4 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”), and the exceptional provision that permits a different set-off is not applicable. Accordingly, the Plaintiff’s claim of this case premised on the validity of the set-off of this case is groundless.

3. Determination

A. Whether a claim for the return of the instant membership fee (i.e., automatic claim) occurred

1) The parties' assertion

With respect to the occurrence of the right to refund the admission fee of this case, the plaintiff asserts that the payment of the admission fee to the defendant after the establishment of the admission contract for each of the instant golf courses shall take place immediately after the establishment of the admission contract, while the defendant asserts that the plaintiff shall express his intention

2) The time when the claim for the refund of the instant membership fee occurred

The right to claim the return of the membership fee also depends on the intention of the member, since the right to claim the return of the membership fee can not be exercised without the lapse of the period for exercising the right to claim it, and the right to claim the return of the membership fee should not be practically created before the plaintiff expresses his/her intention of withdrawal after a certain grace period necessary for voluntary withdrawal expires (see Supreme Court Decision 2013Da10750, Jan. 29, 2015). However, as seen earlier, the fact that the plaintiff expressed his/her intention of withdrawal to the defendant on October 17, 2013 is as seen earlier, the right to claim the return of the membership fee occurs only on October 22, 2013 when the plaintiff expressed his/her intention of withdrawal to the defendant. Accordingly, the Plaintiff’s assertion on a different premise is rejected.

3) Whether the approval of the defendant is necessary for the occurrence of the claim to return the instant membership fee

A) The legal relationship on the operation of a golf club operated with the deposit membership system, where a certain amount is deposited at the time of membership and the withdrawal is returned, is contractual rights and obligations between the member and the company operating the golf club. The rules on its operation are established by the company operating the golf club to apply uniformly to many unspecified visitors, and thus constitutes a contractual right and obligations between the member and the company that wishes to join the golf club, and the provisions on the rights and obligations of the parties among them are characterized as terms and conditions (see Supreme Court Decision 9Da7084 delivered on March 10, 200, etc.).

B) According to the health stand and evidence evidence Nos. 1 and 2 of the instant case, Article 15 of the Rules of the ○○○○○○ Golf Association shall be deemed to have been approved by the company by submitting an application form and membership cards at the time of desired withdrawal from the company. 2. The withdrawal of the company may not be approved for five years after the establishment. 3. The company shall return the principal when granting approval of the withdrawal. Article 16 of the Rules of the △△△△△△△△△△△△△△△△△ Group provides that “when wishing to withdraw from the company, it shall submit an application form and membership cards at the time of desired withdrawal, and obtain approval from the company in accordance with the examination procedure set by the company.” However, if the above provisions are deemed to have not been approved by the Defendant on the application of the withdrawal of the membership, or that the Defendant’s unilaterally set the time of return of the membership fee by setting the time of approval at no discretion, it shall be deemed to have been null and void by the Defendant’s automatic provision (Article 6(2) of the Rules).

B. Whether the instant offset conflicts with the Debtor Rehabilitation Act

1) Article 144(1) of the Debtor Rehabilitation Act provides, “Where any rehabilitation creditor or any rehabilitation secured creditor bears obligations against the debtor at the time the rehabilitation procedures commence, both claims may be offset against the debtor before the reporting period expires, any rehabilitation creditor or any rehabilitation secured creditor may offset the obligations without resorting to the rehabilitation procedures only within such period. The same shall apply to cases where any obligation is up to the deadline.” Meanwhile, Article 145 Subparag. 4 of the same Act provides, “when the debtor for whom the rehabilitation procedures commence files an application for the suspension of the payment, the commencement of rehabilitation procedures, or the commencement of bankruptcy, is known that the debtor files an application for the rehabilitation procedures or a rehabilitation security right: Provided, That the same shall not apply to cases falling under any item of subparagraph 2, while subparagraph 2 (b) provides, “when any cause arising before the suspension of the payment, the commencement of rehabilitation procedures, or the application for bankruptcy is known that any rehabilitation creditor

2) Comprehensively taking account of the facts acknowledged earlier and the purport of the entire argument in the evidence No. 3, the Plaintiff, who was liable for the instant lease deposit to the Defendant, was the Defendant’s obligor at the time rehabilitation procedures commenced with respect to the Defendant, and the Plaintiff, who was a member of each of the instant golf courses operated by the Defendant, as a member of the same affiliate, was aware of the Defendant’s application for commencement of rehabilitation procedures, filed an application on October 17, 2013 and acquired the claim for return of the instant security deposit. Thus, the instant set-off contradicts the main sentence of Article 145 subparag. 4 of the Debtor Rehabilitation Act, barring any special circumstance.

3) On this ground, the Plaintiff asserts that the instant offset is valid since the membership agreement on each of the instant golf courses, on which the Plaintiff acquired the instant claim for the return of membership fees, constitutes “reasons arising before becoming aware of the application for commencement of rehabilitation procedures” as stipulated in the proviso of Article 145 subparag. 4 and subparag. 2 (b) of the Debtor Rehabilitation Act.

A) In light of the foregoing, Article 145 Subparag. 2 (b) of the Debtor Rehabilitation Act allows exceptionally offset against “any obligation borne by any rehabilitation creditor or any rehabilitation secured creditor based on any cause arising before it becomes known that an application for suspension of payment or commencement of rehabilitation procedures has been filed.” Here, “the cause” refers to the case where: (a) it is directly and indirectly intended to cause a creditor to set-off specific expectations; and (b) it is recognized that the rehabilitation creditor’s trust in relation to the security effect of set-off is worth protecting the creditor (see Supreme Court Decision 2013Da200513, Sept. 24, 2014, etc.

B) In light of the following circumstances, it is reasonable to view that the membership agreement for each of the instant golf courses concluded by the Plaintiff and the Defendant constitutes a direct cause to the extent that it would cause a offset against the instant claim to the Plaintiff, or that there was a legitimate trust in protecting the Plaintiff’s collateral effect due to the membership agreement for each of the instant golf courses. Therefore, it is difficult to view that the membership agreement for each of the instant golf courses does not constitute “the cause arising before becoming aware of the application for the commencement of rehabilitation procedures” under the proviso to Article 145 subparag. 4 and subparag. 2 (b) of the Debtor Rehabilitation Act, which provides for the exception to the prohibition of offset, and that “the cause arises before the Plaintiff becomes aware of the application for the commencement of rehabilitation procedures” (see, e.g., Article 145 subparag. 4 and subparag. 2 (b) of the Debtor Rehabilitation Act, which provides for the exception of the prohibition of offset, and thus, it does not constitute “the time of the Plaintiff’s allegation that the offset in this case would be more reasonable than the point of time of time to permit the aforementioned rehabilitation procedures.”

① As seen earlier, the instant claim for the refund of membership fees does not arise due to the conclusion of the membership agreement on each of the instant golf courses, but only occurred by the Plaintiff’s declaration of intent to withdraw from the Defendant. Therefore, it cannot be deemed as a direct cause for the instant membership agreement to cause the instant claim for the refund of membership fees.

② The claim for the refund of the instant lease deposit is the claim that the Plaintiff and the Defendant came to have against the Plaintiff while entering into each of the instant lease agreements. The claim for the refund of the instant lease deposit was acquired at the time of filing an application for the withdrawal of the members of each of the instant golf clubs operated by the Plaintiff, and the legal relationship is not related thereto. Furthermore, the time of entering into the membership agreement for each of the instant golf clubs was the time from August 10, 1999 to December 1, 2003, and each of the instant lease agreements was concluded even before the date of entering into the agreement. In full view of these facts, it is difficult to view that the Plaintiff’s claim for the refund of the instant lease deposit cannot be said to have been concluded in the sense of mutual security, and thus, it is difficult to view that there was a trust in view of the legitimate expectation or sustainable expectation of set-off against the Plaintiff’s claim for the return of the instant lease deposit and the Plaintiff’s claim for the return of the instant lease deposit, which were presented to the Plaintiff immediately after the conclusion of the agreement (the Plaintiff’s argument was submitted.

③ The main text of Article 145 Subparag. 4 of the Debtor Rehabilitation Act permits a set-off to the effect that a debtor acquires a new claim against a creditor while having knowledge of the creditor’s application for commencement of rehabilitation procedures or bankruptcy, if the debtor acquires a new claim against the creditor as an automatic claim but can offset the existing claim by using it as an automatic claim, thereby causing inequality among creditors by abusing set-off and causing adverse effects on the achievement of the rehabilitation system. Accordingly, such set-off shall be prohibited in such cases. However, in cases of acquisition of a claim arising from a cause arising before the commencement of rehabilitation procedures or the knowledge of the application for bankruptcy under Article 145 Subparag. 2(b) applicable mutatis mutandis under the proviso of Article 145 Subparag. 4 of the Debtor Rehabilitation Act, deeming that the person who acquired the rehabilitation claim did not have an intention to obtain de facto reduction or exemption of the claim by abusing the set-off and protecting the legitimate set-off period by deeming that the person who acquired the rehabilitation

D. Sub-committee

Therefore, the offset of this case cannot be permitted under the main sentence of Article 145 subparag. 4 of the Debtor Rehabilitation Act. Thus, the plaintiff's claim of this case based on the premise that the offset of this case is permitted is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment]

Judges Kim Dae-ro (Presiding Judge)

2. When any rehabilitation creditor or any rehabilitation secured creditor bears the obligation to the debtor with the knowledge that the application for the suspension of payment, the commencement of rehabilitation procedures or the application for bankruptcy is filed: Provided, That the case falling under any of the following items shall be excluded: Provided, That the case where such obligation is met;

2) Article 6 (General Principles) ① Any provision of a standardized contract which has lost fairness in violation of the principle of good faith is null and void. ② Any provision of a standardized contract which falls under any of the following subparagraphs is presumed to be unfair. 1. A clause which is unreasonably unfavorable to customers is presumed to be unfair:

(3) A clause of a standardized contract providing for the performance of an obligation under Article 10 that falls under any of the following subparagraphs shall be null and void.

4) When the cause has occurred not less than one year prior to the time of commencement of rehabilitation procedures and the time of declaration of bankruptcy.