[1] The purport of allowing a set-off which is not according to the rehabilitation procedures even after the commencement of rehabilitation procedures under Article 144(1) of the Debtor Rehabilitation and Bankruptcy Act, and the purport of allowing a set-off even when the obligation is due, and whether a rehabilitation creditor may set-off the benefit of time prior to the expiration of the reporting period in cases where the obligation is due (affirmative)

[2] The purpose of restricting set-off of rehabilitation claims where a debtor of a rehabilitation debtor, for whom rehabilitation procedures have commenced, acquires rehabilitation claims with knowledge of the existence of an application for suspension of payment, application for commencement of rehabilitation procedures, etc., and the requirements to recognize that, in cases where the debtor of a rehabilitation debtor acquires rehabilitation claims due to a cause that occurred before the debtor becomes aware of the suspension of payment, application for commencement of rehabilitation procedures, etc. under the proviso of Article 145 subparag. 4 and subparag. 2 subparag. 2(b) of the Debtor Rehabilitation and Bankruptcy Act, the grounds for allowing set-off of rehabilitation claims based on the automatic claim, suspension of payment, and suspension of payment, and the existence of an application for commencement of rehabilitation procedures, etc., have occurred

[3] The scope of the obligation secured by the real estate lease deposit, and whether the lessor’s obligation to return the lease deposit reaches the due date at the time of termination of the lease agreement, which is clear that it will be realized or arrived in the future (affirmative in principle) / Whether the lessor may set off against the lessor’s obligation to return the lease deposit with the claim to return the lease deposit upon waiver of the benefit of time during the existence of the lease agreement (affirmative), and whether the lessor may be deemed to waive the benefit of time due to the obligation to return the lease deposit in the event the lessor

[4] In a case where Gap corporation: (a) concluded a membership agreement with Eul corporation as to the membership fee for a golf course operated by Eul corporation and leased the above golf course site and building to Eul corporation with the security deposit for the lease; (b) during the term of lease, Eul corporation filed an application for commencement of rehabilitation procedures with Eul company; and (c) expressed its intent to offset Eul company's claim for the refund of the security deposit against Eul company's claims for the refund of the security deposit by using part of Eul company's claims for the refund of the security deposit with the automatic bond; (d) the case holding that the above claim for the refund of the security deposit constitutes a rehabilitation claim acquired pursuant to "the grounds arising before it becomes known that the application for the commencement of rehabilitation procedures was filed," which is an exception to the prohibition of offset under Article 145

[1] Article 144(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that “Where any rehabilitation creditor or any rehabilitation secured creditor bears obligations against the debtor at the time the rehabilitation procedures commence, if both of the claims and the rehabilitation secured creditor are able to offset them before the reporting period expires, the rehabilitation creditor or the rehabilitation secured creditor may offset them only within such period. The same shall apply to cases where any obligation is due.” This permits a set-off which is not subject to rehabilitation procedures even after the commencement of rehabilitation procedures within a certain scope. This also aims to protect the party’s expectation that such set-off may be allowed if both the rehabilitation creditor and the rehabilitation debtor have claims and obligations against the other party. Moreover, even if the repayment period is extended, it becomes clear that such set-off is possible to allow a set-off. This is because, even if it becomes final and conclusive, the need to recognize a set-off is different from general claims where a set-off occurs before the reporting period expires, as both claims and the rehabilitation creditor are entitled to offset the benefit of the debtor before the expiration of the reporting period.

[2] The main text of Article 145 Subparag. 4 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) restricts a debtor, who has commenced rehabilitation procedures, to offset his/her claims against his/her automatic claims when he/she acquires rehabilitation claims with the knowledge of the critical situation of the debtor, such as suspension of payment, application for commencement of rehabilitation procedures, etc. In addition, as an exception thereto, when the debtor acquires rehabilitation claims based on the grounds arising before the debtor becomes aware of the suspension of the payment of the rehabilitation debtor and the application for commencement of rehabilitation procedures (hereinafter “the grounds prior thereto”), the same proviso and subparagraph 4 of the same Article (proviso) and subparagraph 2 (b) of the same Article allow the offset against the rehabilitation claims based on the automatic claim. The purport of restricting the offset under the Debtor Rehabilitation Act is that if the debtor, who has been liable for the rehabilitation debtor, acquires new claims after acquiring them with the debtor’s crisis after the commencement of rehabilitation procedures, ensuring fairness among the debtor’s rehabilitation and that it may also hinder the debtor’s rehabilitation. In other words, it is necessary to set off the claims before and after the occurrence of such crisis.

[3] The lease deposit received from the lease of real estate guarantees all the lessee’s obligations arising out of the lease, such as the lease deposit and the damage liability arising out of the loss, damage, etc. of the object, barring any special circumstance, the lessor’s obligation to return the lease deposit reaches the due date at the time of the termination of the lease, which is clear that it will be realized or arrived in the future. Furthermore, the lessor may maintain the lease of real estate even if the lease is in existence, even if the lease is in existence, he/she may set off against the lessee’s obligation to return the lease deposit and the lessee’s obligation to return the lease deposit with the claim to return the lease deposit. If the lessor has expressed his/her intent of set-off during the lease existence, he/she may

[4] In a case where Gap corporation concluded a membership agreement with Eul corporation as to the membership fee for a golf course operated by Eul corporation and leased the above golf course site and building to Eul corporation after receiving a deposit for the commencement of rehabilitation procedures; during the lease term, Eul corporation filed an application for commencement of rehabilitation procedures and filed an application for withdrawal of membership fee for a golf course with Eul corporation as an automatic bond and expressed its intent of offsetting Eul corporation's claim for return of membership fee, the case holding that Gap corporation's declaration of set-off constitutes a set-off claim under Article 144 (1) of the Debtor Rehabilitation and Bankruptcy Act, since Eul corporation's declaration of set-off contains a declaration of intent to waive benefit due to the obligation to return lease deposit, and thus Gap corporation's claim for return of membership fee was acquired with Eul company's view to the commencement of rehabilitation procedures, but Gap company's membership agreement concluded with Eul corporation's company Eul constitutes a set-off claim under the proviso to Article 144 (1) of the Debtor Rehabilitation and Bankruptcy Act (the above proviso to the Debtor Rehabilitation Act).

[1] Article 14(1) of the Debtor Rehabilitation and Bankruptcy Act; Articles 152, 153, and 492 of the Civil Act / [2] Article 145 subparag. 2(b) and 4 of the Debtor Rehabilitation and Bankruptcy Act; Article 492 of the Civil Act / [3] Articles 152, 153, 492(1), 493(1), and 618 of the Civil Act / [4] Articles 144(1), 145 subparag. 2(b) and 4 of the Debtor Rehabilitation and Bankruptcy Act; Articles 152, 153, 492(1), and 493(1), and 618 of the Civil Act

[2] Supreme Court Decision 2013Da200513 Decided September 24, 2014 / [3] Supreme Court Decision 2002Da52657 Decided December 10, 2002 (Gong2003Sang, 361) Supreme Court Decision 2015Da23020 Decided July 27, 2016 (Gong2016Ha, 1228), Supreme Court Decision 2016Da211309 Decided November 25, 2016 (Gong2017Sang, 222)

Dongyang Life Insurance Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for defendant-appellee)

Dongyang Leisure Co., Ltd. (Law Firm Construction, Attorneys Choi Promotion et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2046810 decided November 18, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. Article 131 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that no act extinguishing rehabilitation claims, such as repayment, shall be performed without following the provisions of the rehabilitation plan, except as otherwise expressly provided for in the rehabilitation plan after rehabilitation procedures commence (see Supreme Court Decision 2013Da69866, Jul. 9, 2015).

On the other hand, Article 144(1) of the same Act provides that “Where a rehabilitation creditor or a rehabilitation secured creditor bears obligations against a debtor at the time the rehabilitation procedures commence, both claims and obligations may be offset before the period for reporting expires, a rehabilitation creditor or a rehabilitation secured creditor may offset only within such period. The same shall apply to cases where a debt is due, and even after the rehabilitation procedures commence, it is permitted to offset even within a certain scope.” This is intended to protect the party’s expectation that offset may be offset by offsetting if a rehabilitation creditor and a rehabilitation secured creditor have claims and obligations against the other party. In addition, allowing a offset even when a debt is due, it is determined to allow a set-off even when a debt is due and conclusive only when the debt is incurred or performed in the future, and thus, the need to recognize a set-off is different from cases of a general claim. In addition, if a set-off can be conducted after the rehabilitation procedures commence, both claims and both claims may be offset before the period for reporting the debt expires, so it is also permitted where a rehabilitation creditor waives the benefit of the due period prior to the expiration of the reporting period.

However, the main text of Article 145 Subparag. 4 of the Debtor Rehabilitation Act limits the prohibition of offsetting rehabilitation claims when a debtor, who has commenced rehabilitation procedures, acquires rehabilitation claims while being aware of the critical situation of the debtor, such as the suspension of payment and the application for commencement of rehabilitation procedures. In other words, in cases where the debtor acquires rehabilitation claims pursuant to the grounds arising before the debtor becomes aware of the suspension of payment of the debtor's rehabilitation and the application for commencement of rehabilitation procedures (hereinafter "previous grounds"), Article 145 Subparag. 4 proviso of the same Act permits the debtor to offset the rehabilitation claims with the automatic claims. The purport of restricting the offset by the rehabilitation claims is that, if the debtor, who has been liable to the debtor, acquires new claims to offset the debtor after acquiring them after a crisis, it would compromise equity among the rehabilitation creditors and would compromise the debtor's rehabilitation procedures. On the other hand, acquisition of the rehabilitation claims is an exception to the foregoing, but it is necessary to set off the claims to the extent that the debtor had already acquired them before or after the occurrence of such crisis. In other words, it is necessary to establish a set-off in advance 200.

2. The reasoning of the lower judgment reveals the following facts.

A. From August 10, 1999 to December 1, 2003, the Plaintiff entered into a membership agreement with the Defendant on the 32 unit membership rights for ○○○○○○○○○○○ Community, a membership golf club operated by the Defendant (a total of KRW 13,080,000,00) and the 9 unit membership rights for △△△△△△△△△△△△△△△△△△△ (a total of KRW 700,000,00) (hereinafter the above two golf clubs collectively referred to as “each of the instant golf clubs” and each of the instant golf clubs collectively referred to as “each of the instant membership agreements”). The rules of each of the instant golf clubs provide that the membership fees, a membership deposit, shall be collected for a certain period (five years after the membership, and two years after the membership of △△△△△△△ Community), and shall be returned at the request of the members thereafter.

B. As the owner of each of the instant golf courses, the Plaintiff, as the owner of each of the instant golf courses, leased real estate listed in the separate sheet No. 1 as indicated in the judgment below on March 5, 2004 to the Defendant, with the lease deposit amounting to KRW 9,30,000,000, monthly rent of KRW 936,000,000, and the lease term from March 5, 2004 to March 4, 2024. ② On May 30, 2005, the Plaintiff leased real estate listed in the separate sheet No. 3 as indicated in the judgment below, with the lease deposit amount to KRW 1,00,00,000,000, monthly rent of KRW 344,16,660, and the lease term from May 30, 2005 to May 29, 2025 (hereinafter “each of the instant lease agreements”).

C. On October 17, 2013, when the decision on commencement of rehabilitation procedures was rendered with respect to the Defendant, the Plaintiff filed an application for withdrawal of the above membership 41 unit with the Defendant’s administrator. On October 22, 2013, the Plaintiff sent a statement to offset KRW 10,300,000,000 out of the Plaintiff’s claim for return of the membership deposit (hereinafter “instant claim for return of the membership deposit”) against the Defendant’s claim for return of the lease deposit under each of the instant lease. This reached the Defendant’s custodian around October 22, 2013, prior to the expiration of the reporting period for rehabilitation claims, etc.

3. Based on the aforementioned factual basis, the lower court determined that: (a) as the Plaintiff, who was liable for the repayment of a lease deposit against the Defendant, was aware of the Defendant’s filing of an application for the withdrawal of a member on October 17, 2013 and acquired the instant claim for the refund of a lease deposit, the offset against the Plaintiff’s automatic claim cannot be allowed as it goes against the main sentence of Article 145 subparag. 4 of the Debtor Rehabilitation Act, which provides for the grounds for prohibition of offset; and (b) the instant claim for the refund of a deposit did not arise due to the conclusion of each of the instant membership agreements, but only with the Plaintiff’s intent of withdrawal; (c) therefore, it cannot be deemed that the instant membership agreement constitutes a direct cause to the extent that the Plaintiff would incur an expectation of offset by the instant claim for the refund of the deposit; and (d) it cannot be deemed that the Plaintiff’s claim for the refund of a lease deposit under each of the instant lease agreements and that there was a legitimate trust in protecting the Plaintiff’s security effect.

4. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The lease deposit received from the lease of real estate guarantees all the lessee’s obligations arising out of the lease, such as the lease deposit and the liability for damages arising from the loss of, damage to, etc. of the object (see, e.g., Supreme Court Decision 2015Da230020, Jul. 27, 2016). Barring special circumstances, the lessor’s obligation to return the lease deposit reaches the expiration date of the lease contract that is clear that the lessor’s future realization or arrival would definitely occur (see, e.g., Supreme Court Decision 2002Da52657, Dec. 10, 2002). Moreover, the lessor may maintain the lease contract without the lease deposit. As such, even if the lease is still in existence, it may be set off against the lessee’s obligation to return the lease deposit by waiver of the benefit arising from the lease deposit and the lessee’s obligation to return the lease deposit (see Supreme Court Decision 2016Da21309, Nov. 25, 2016).

Examining the factual relations acknowledged by the lower court in light of the relevant legal principles, such as offsetting the term debt, etc., the Plaintiff’s declaration of intent to waive the benefit of the Defendant as to the obligation to return lease deposit against the Defendant, and thus, the Plaintiff’s offset once can be deemed as satisfying the requirements for the exercise of the right to offset by rehabilitation creditors under Article 144(1) of the Debtor Rehabilitation Act.

B. Meanwhile, in a case where the Rules of the so-called golf club provides that if a member intends to receive a membership fee from a golf club, the right to claim the return of the membership fee shall take place only after the lapse of a certain grace period necessary for the voluntary withdrawal session (see, e.g., Supreme Court Decision 2013Da100750, Jan. 29, 2015). Therefore, according to the facts acknowledged by the lower court, the Plaintiff’s claim for the return of the membership fee in this case occurred on October 22, 2013 when the Plaintiff expressed his/her intent to withdraw from the meeting and received the Defendant’s custodian. Therefore, the Plaintiff acquired the instant claim for the return of the membership fee in this case with the knowledge of the Defendant’s application for the commencement of rehabilitation procedures, the offset against the Plaintiff’s automatic claim constitutes “when the debtor acquires the rehabilitation claim with the knowledge of the application for the commencement of rehabilitation procedures,” which is a ground for prohibition of offset under Article 145 subparag. 4 of the Debtor Rehabilitation

However, the so-called golf membership membership system generally refers to the status of a member's golf club establishment in a membership agreement or the legal relationship arising from a membership agreement. Since golf membership membership in such deposit system has an individual right, such as the right to preferentially use the golf club facilities and the right to claim a refund of membership fees, which is a right to receive a refund at the time of withdrawal as prescribed by the rules of the association (see Supreme Court Decision 2013Da100750, Jan. 29, 2015, etc.). Each membership agreement in this case can be deemed a direct cause for acquiring the right to claim a refund of membership fees in this case. In addition, since the period of grace period of membership fees as prescribed by the rules of the association already passed before the commencement of rehabilitation procedures, each of the lease agreements in this case is the object of lease, such as the site and building of each of the instant golf club, and thus, it is reasonable to view that the Plaintiff's trust in the claim for a refund of the security deposit in this case can be seen as reasonable in a way corresponding to the Plaintiff's trust in the claim for a set-off.

Therefore, it is reasonable to view that the instant membership fee refund claim constitutes a rehabilitation claim acquired based on the “reasons that occurred before becoming aware of the application for the commencement of rehabilitation procedures,” which is an exception to the prohibition of offset under the proviso of Article 145 subparag. 4 and subparag. 2 subparag. b of the Debtor Rehabilitation Act.

C. Nevertheless, the lower court determined that each of the instant membership agreements did not constitute an exception to the prohibition of offsetting on the grounds as seen earlier. In so doing, it erred by misapprehending the legal doctrine on the interpretation of the proviso to Article 145 subparag. 4 and proviso to Article 145 subparag. 2(b) of the Debtor Rehabilitation Act.

5. Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)