Whether a set-off against an automatic claim against the principal obligor of the trustee guarantor is allowed (negative)

[1] Articles 442, 443, and 492 of the Civil Code

Supreme Court Decision 69Da1084 Decided October 28, 1969 (Gong1982, 603) Supreme Court Decision 81Da595 Decided May 25, 1982 (Gong1982, 603), Supreme Court Decision 81Da595 Decided May 25, 1982 (Gong1982, 603), Supreme Court Decision 2001Da5222, 55239 Decided November 13, 2001 (Gong202, 49)

Kim Tae-hwan

The administrator of the claim of the reorganization company (Law Firm Ha & Yang, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2002Na3869 delivered on February 7, 2003

Of the part of the judgment of the court below as to damages for delay, the part against the defendant in excess of the amount of 5% per annum from February 5, 2002 to May 31, 2003 as to 103,170,510 won with respect to the defendant, and the part against the defendant in excess of the amount of 20% per annum from the next day to the date of full payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the corresponding part of the plaintiff's claim shall be dismissed

1. As to the grounds of appeal Nos. 1 and 3

After compiling the evidence of employment, the court below acknowledged the facts as stated in its holding, and determined that the sales contract of this case concluded between the plaintiff and the non-party corporation (hereinafter referred to as "claim") was bilateral contract at the time of the commencement of the company reorganization procedure for the claim, where both the plaintiff's obligation to pay the sale price and the obligation to sell the claim have not been completed at the time of the commencement of the company reorganization procedure for the claim, and the plaintiff's obligation to sell to the plaintiff was not fulfilled under social norms at the time of the cancellation of the sale contract, and therefore,

In light of the records, the fact-finding and judgment of the court below are just, and there is no error of law in the misapprehension of legal principles as to the cancellation of contract or the exercise of right of rescission as alleged in the

2. Regarding ground of appeal No. 2

If a set-off of a claim bearing a right of defense is allowed with an automatic claim to which the other party's right of defense is attached, such set-off is a result of the other party's loss of opportunity to exercise the other party's right of defense by either party's declaration of intent of the set-off. In particular, as long as the so-called claim of discharge under Article 443 of the Civil Act is attached to the right of defense to the principal obligor as the so-called claim of discharge under Article 442 of the Civil Act against the principal obligor is not allowed (see Supreme Court Decision 2001Da5522, 55239 delivered on November 13, 201).

In the same view, the court below is just in rejecting the defendant's defense of offset on the ground that the defendant's prior claim against the plaintiff, a trustee guarantor, is attached with the right of defense of the claim for exemption under Article 443 of the Civil Act, and such offset is not permitted due to its nature, and there is no error in the misapprehension of legal principles as to the offset based on the prior claim as alleged in the grounds of appeal, and there is no error in the misapprehension of legal principles as to the offset based on the prior claim

3. Ex officio determination

On April 24, 2003, the Constitutional Court rendered a decision of unconstitutionality on the part of "interest rate prescribed by Presidential Decree" in Article 3 (1) of the Special Act on the Promotion, etc. of Legal Proceedings (amended by Act No. 5507 of Jan. 13, 1998 and amended by Act No. 6868 of May 10, 2003; hereinafter referred to as "Promotion Act") with respect to cases which were pending in the court at the time of the enforcement of the amended Act, and the amended provisions of the above Act and the main sentence of Article 3 (1) of the Special Act on the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) were erroneous by applying the interest rate of 25 percent per annum under the former Promotion Act, thereby affecting the conclusion of the judgment.

Therefore, from February 5, 2002 to May 31, 2003, the part of the judgment of the court below against the defendant as to damages for delay as to KRW 103,170,510 as to the damages for delay is reversed, and the part against the defendant exceeding the damages for delay by the rate of 5 percent per annum as stipulated in the Civil Act, from February 5, 2002 to May 31, 2003, and 20 percent per annum as revised from the next day to the date of full payment. Since this part is sufficient for the court to directly judge, this part is decided to be self-printed pursuant to Article 437 of the Civil Procedure Act, the judgment of the court of first instance as to this part is revoked, and the plaintiff's claim corresponding

Justices Lee Han-gu (Presiding Justice)