[1] The meaning of "where the fulfillment, which is the requirement for the rescission of bilateral contract under Article 103 (1) of the Company Reorganization Act, has not been completed"

[2] In a case where the other party to a bilateral contract fails to report the damage claim acquired due to the rescission of the contract by the receiver of the reorganization company within the period for reporting the reorganization claim, whether the offset based on the claim can be asserted (negative)

[3] In a case where the other party to a bilateral contract fails to exercise the peremptory right under Article 103 (2) of the Company Reorganization Act and fails to report the damage claim acquired due to the cancellation of the contract by the administrator of the reorganization company within the period for reporting the reorganization claim, and thus it becomes impossible to exercise the right as a reorganization creditor or claim for offset, whether the claim for restitution by the administrator of the reorganization company constitutes an abuse

[1] Article 103 (1) of the Company Reorganization Act provides that when both the company and the other party have not completed the performance of bilateral contracts at the time of the commencement of reorganization proceedings, the receiver may rescind or terminate the bilateral contract, and the "when the performance has not been completed" under this provision includes the non-performance of part of the obligation, and the reason why the performance has not been completed is that the obligor does not ask.

[2] Articles 104(1) and 162(1) of the Company Reorganization Act may exercise the right as a reorganization creditor with respect to damages when a contract is terminated pursuant to Article 103(1). In cases where a reorganization creditor bears obligations to the company at the time of commencement of reorganization proceedings, and where both claims and obligations are set-off before the expiration of the reporting period of reorganization claims, a set-off may be made only within such period, but if the other party did not report the reorganization claim regarding the above claim within the period stipulated under the Company Reorganization Act, a set-off cannot be made on the ground that the above claim exists.

[3] Article 103 (1) of the Company Reorganization Act provides for the smooth reorganization and reconstruction of the company's business to which the obligation has not been completed at the time of commencement of reorganization proceedings. According to Article 103 (2) of the Company Reorganization Act, the other party may demand that the receiver cancel or terminate the contract or provide a definite answer as to whether the contract has been performed. When the contract has been terminated or terminated pursuant to Article 104 (1) of the same Act, the other party may exercise his/her right as a reorganization creditor in relation to the compensation for damages. Thus, even if the other party is unable to assert his/her right as a reorganization creditor or claim as a offset because it is impossible for the other party to exercise his/her right as a reorganization creditor due to the other party's failure to exercise the right of peremptory notice within the reporting period of reorganization claims, and only the other party bears his/her duty to restore due to the cancellation of the contract by the receiver of the reorganization company, it cannot be concluded that the claim for restitution by the receiver is abuse

[1] Article 103 (1) of the Company Reorganization Act / [2] Articles 103 (1), 104 (1), and 162 (1) of the Company Reorganization Act / [3] Article 2 of the Civil Act, Articles 103 and 104 (1) of the Company Reorganization Act

Administrator of Hanyang Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Spanco Co., Ltd. (formerly: New Plant Industry Co., Ltd.) (Law Firm Sejong, Attorneys Osung-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na16772 delivered on December 12, 1997

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on evidence, and determined that Article 103 (1) of the Company Reorganization Act provides that when both the company and the other party have not completed the performance of bilateral contract at the time of commencement of reorganization proceedings, the receiver may rescind or terminate the contract. If the performance of the contract is not completed, the part of the obligation is included, and the execution of the contract is not completed. Thus, as long as the delivery and execution of construction obligations for the first plant of this case are not completed, the declaration of rescission of the contract of this case for the first plant of this case is effective, so the defendant is liable to return to the plaintiff the above plant amount of KRW 195,00,000 as part of the price for the first plant of this case and the delay damages from the date of its receipt, the court below determined that the defendant, as to the defendant's offset and the defense of simultaneous performance, has no obligation to offset the claim against the plaintiff as alleged by the plaintiff, even if the defendant had no obligation to offset the reorganization claim before the expiration of reorganization claim.

In light of the records and relevant Acts and subordinate statutes, the fact-finding and decision of the court below shall be justified, and there is no error of law that affected the conclusion of the judgment due to a mistake of facts against the rules of evidence, such as the theory of lawsuit, or misunderstanding of legal principles concerning the right to cancel the contract

In addition, Article 103 (1) of the Company Reorganization Act provides for the smooth reorganization and reorganization of the company's business to which the obligation has not been completed at the time of commencement of reorganization proceedings. According to Article 103 (2) of the Company Reorganization Act, in the case of paragraph (1) of the same Article, the other party may demand that the receiver cancel or terminate the contract or provide a definite answer as to whether the contract has been performed. According to Article 104 (1) of the same Act, when the contract has been terminated or terminated, the other party may exercise his/her right as a reorganization creditor in relation to the damages. In this case, the other party is entitled to exercise his/her right as a reorganization creditor when the defendant did not exercise his/her right of peremptory notice within the reporting period of reorganization claims because he/she could not report his/her right to damage to the company of the defendant's assertion as a reorganization creditor. Thus, even if the plaintiff's contract administrator of the reorganization company bears his/her duty to restore due to the cancellation of the contract, it cannot be concluded that the plaintiff's claim in this case is abuse of rights and contrary

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 Shin Sung-sung (Presiding Justice)