[1] In case where a remittance was made from a foreign country to a designated account of an addressee’s deposit account, the time when the payee’s deposit claim against the remittance amount is constituted (=the time when the receiving bank deposited the remittance amount into the designated deposit account)

[2] The requirements for legal relations corresponding to the former cause in the case where a passive claim has been created due to the cause that occurred before the rehabilitation creditor or rehabilitation secured creditor becomes aware of the suspension of payment, the application for commencement of rehabilitation procedures, etc., which exceptionally allow a set-off in Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act

[1] Articles 680 and 702 of the Civil Code / [2] Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 99Da53902 delivered on January 25, 2002 (Gong2002Sang, 544) / [2] Supreme Court Decision 2003Da61931 delivered on September 28, 2005 (Gong2005Ha, 1669)

Manager of panty Corporation (Law Firm LLC, Attorneys Yoon-hee et al., Counsel for the plaintiff-appellant)

Korean Bank (Law Firm Barun, Attorneys Park Il-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Na38489 decided December 12, 2014

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

citing the reasoning of the judgment of the court of first instance, the lower court determined that it was reasonable to view that the Defendant was aware of the fact of the debtor company’s commencement of rehabilitation procedures at the time when the debtor company’s commencement of rehabilitation procedures was publicly announced through the Financial Supervisory Service and the Korea Exchange disclosure system around June 7, 2013, by citing the reasoning of the judgment, based on the following circumstances: (a) the Defendant was placed an example of whether to file an application for commencement of rehabilitation procedures with the EEE panty corporation (the name was changed to “EE panty corporation” on November 22, 2013 during the first instance trial;

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or

2. Regarding ground of appeal No. 2

A. Where a remittance takes place from a foreign country to a designated account of an addressee’s deposit account, the legal relationship therefrom is a delegation relationship between the remitter and the remittance bank and the remittance bank. The payee is not a direct party to the remittance relationship. However, the recipient is merely a depositor of the remittance bank. Therefore, the remittance bank bears the obligation to deposit the remittance amount to the remitter’s deposit account designated in the notice of remittance according to its delegation. However, the recipient cannot be deemed to bear the obligation to immediately pay the remittance amount without such procedure. Thus, the recipient cannot be deemed to have established the payee’s deposit claim of the remittance amount until the receipt bank confirms the remittance amount and deposits the remittance amount to the designated deposit account (see Supreme Court Decision 9Da53902, Jan. 25, 2002, etc.).

B. Of the instant deposit No. 1, the lower court is justifiable in light of the legal doctrine as seen earlier, that: (a) with respect to USD 10,100,734.21 (hereinafter “the instant remittance amount”) in the aggregate of the remittance amount from No. 1 to No. 8. 58 of the lower judgment; (b) the Defendant’s basic terms and conditions of deposit transaction, etc., only when the remittance amount was recorded in the president of the debtor company’s deposit account; and (c) the Defendant is liable to pay the remittance amount at the same time; and (d) contrary to what is alleged in the grounds of appeal, there is no error in the misapprehension of legal doctrine

3. Regarding ground of appeal No. 3

A. If a creditor, even though he/she was aware of a so-called crisis that the debtor's payment suspension or commencement of rehabilitation procedures is applied, if he/she bears a new debt against the debtor, but it may offset the debtor by using another claim as a passive claim, it may result in unfortunateing the purpose of rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (hereinafter " Debtor Rehabilitation Act"), such as fair and equitable financial transactions among creditors and preventing the debtor from performing financial transactions with a financial institution, which is the creditor even after a preservative measure is issued, and preventing the progress of the rehabilitation procedure from being achieved. Thus, the main text of Article 145 subparagraph 2 of the Debtor Rehabilitation Act prohibits a set-off against the debtor's debt that the rehabilitation creditor or the rehabilitation secured creditor bears with the knowledge of such crisis situation, and the proviso (b) prohibits a set-off against the debtor's legitimate defense claim that exists before the critical crisis period, and specifically permits a set-off to the extent that it constitutes 200 years prior to the application for suspension of payment and commencement of rehabilitation procedures (hereinafter "the preceding causes").

B. The lower court, citing the reasoning of the first instance judgment, based on the adopted evidence, found the Defendant’s consolidated point of receipt of payment order from an overseas remittance bank, i.e., (i) confirmed the details of the above remittance, and conducted disposal of the advance payment as the addressee’s business store; (ii) pursuant to the Defendant’s basic terms and conditions of deposit transaction, the recipient company can obtain the deposit claim regarding the above advance payment; and (iii) even if the Defendant entered the above advance payment order into the president of the debtor company in accordance with the payment order prior to the commencement date of the debtor company’s rehabilitation procedure, the lower court determined that it is difficult for the Defendant to view the above advance payment order as a set-off claim of the Defendant’s right to a part of the advance payment claim if it is difficult for the Defendant to ascertain the Defendant’s right to deposit funds in accordance with the Defendant’s basic terms and conditions of deposit transaction; and (iv) on the other hand, even if the Defendant entered the advance payment order to the president of the debtor company in accordance with the payment order received prior to the obligor company’s critical situation.

C. Examining the above legal principles and records in light of the above, we affirm the above determination by the court below as just and there is no error in the misapprehension of legal principles as to the interpretation of subparagraph 2 (b) of Article 145 of the Debtor Rehabilitation Act, contrary to what is alleged in the grounds of appeal.

4. Conclusion

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.

Justices Park Sang-ok (Presiding Justice)