In cases where a decision on discontinuation of rehabilitation procedures becomes final and conclusive after authorization is granted for a rehabilitation plan for the debtor, and the rehabilitation procedures are implemented following an ex officio declaration of bankruptcy under Article 6(1) of the former Debtor Rehabilitation and Bankruptcy Act, whether Article 422 subparag. 2 of the same Act, which provides for the grounds for the prohibition of offsetting against the debtor's property by setting off his/her claim as a passive claim during the rehabilitation procedures for the debtor as an automatic claim (negative in principle)

Articles 6(1) and (4) and 422 subparag. 2 of the former Debtor Rehabilitation and Bankruptcy Act (Amended by Act No. 12892, Dec. 30, 2014);

Trustee in Bankruptcy of the Bankruptcy Obligor; Plaintiff in Bankruptcy

Defendant (Law Firm Cheong, Attorneys Lee Hun-hwan et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2014Na62373 Decided November 18, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

We examine the grounds of appeal ex officio prior to judgment.

1. According to Article 6(1) and (4) of the former Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 12892, Dec. 30, 2014; hereinafter “ Debtor Rehabilitation Act”), where a decision to discontinue the rehabilitation procedures becomes final and conclusive after authorization is granted for the rehabilitation plan for a debtor who has not been declared bankrupt, the court shall declare bankruptcy ex officio when it recognizes that the debtor has any ground for bankruptcy, and in such case, public-interest claims are deemed estate claims in the application of the provisions of Part III.

In light of the contents and purport of the above provisions that protect public-interest claims as estate claims when rehabilitation procedures are implemented in the course of bankruptcy proceedings, in cases where a decision to discontinue rehabilitation procedures becomes final and conclusive after authorization is granted for the rehabilitation plan for the debtor, and the rehabilitation procedures are implemented pursuant to an ex officio declaration of bankruptcy under Article 6(1) of the Debtor Rehabilitation Act, barring any special circumstance, Article 422 subparag. 2 of the Debtor Rehabilitation Act, which provides for the grounds for prohibition of offset against the debtor’s property by setting off his/her claim as an automatic claim during the rehabilitation procedures against the debtor, cannot be applied.

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On August 9, 2010, rehabilitation procedures were commenced, and the Nonparty’s representative director was appointed as a custodian, and the rehabilitation plan was approved on July 6, 201, but thereafter, on August 13, 2013, the decision to discontinue the rehabilitation procedures became final and conclusive, and on the same day, the court rendered ex officio declaration of bankruptcy under Article 6(1) of the Debtor Rehabilitation Act.

B. Meanwhile, from around 10 years prior to the time of the declaration of bankruptcy, the post was a transaction in which the Defendant was entrusted to color the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part of the raw part

C. After the completion of the transactional relationship between the Defendant and the third salt service, the Defendant set off the amount of KRW 30,172,80 equivalent to the shortage in the stock of the living group from time to time provided by the Defendant for salt processing on July 18, 2013 when the rehabilitation procedure for the third salt was in progress, by using the amount of KRW 30,172,80 as the automatic bond against the Defendant in the third salt, as the claim for service payment on June 2013 and July 20 of the same year.

3. We examine the above facts in light of the legal principles as seen earlier.

A. The Defendant’s claim as a set-off is the right to claim damages arising from the loss of the original stock of the place that the Defendant is obligated to return as a result of the termination of the contractual relationship between the Defendant and the third-party salt. However, the manager of the third-party salt continued to maintain the transaction relationship between the Defendant and the third-party salter after the commencement of the rehabilitation procedure. Since the contractual relationship between the Defendant and the third-party salter with respect to the third-party salt processing service continues to exist after the commencement of the rehabilitation procedure, the contractual relationship between the Defendant and the third-party salter with respect to the third-party salt processing service is arising from the act of the third-party salter after the commencement of the rehabilitation procedure, and thus, the performance of the contractual obligation is also included in the duties of the manager of the third-party salter. Thus, barring any special circumstance, the Defendant’s claim for damages arising from failure to perform the liquidation obligation following the termination of the above contractual relationship after the commencement of the rehabilitation procedure for the third party salt manager constitutes a claim for public interest claim.

B. On July 18, 2013, when the rehabilitation procedure for the third salt is in progress, the Defendant offsets his claim for damages, which is a priority claim, by using his claim for damages against the Defendant, who is a priority claim, as an automatic claim, into a passive claim for the service payment claim on June 2013 and on July 13 of the same year. Accordingly, even if the decision to discontinue the rehabilitation procedure becomes final and conclusive for the third salt on August 13, 2013, and the court declared bankruptcy ex officio pursuant to Article 6(1) of the Debtor Rehabilitation Act, Article 422 subparag. 2 of the Debtor Rehabilitation Act, which provides for the grounds for the prohibition of offset by bankruptcy creditors, cannot be applied to the Defendant’s exercise of the right for offset.

C. Nevertheless, on the premise that the Defendant’s claim constitutes a bankruptcy claim, the lower court determined that the exercise of the Defendant’s right to offset falls under a bankruptcy claim, and thus, it is invalid under Article 422 subparag. 2 of the Debtor Rehabilitation Act, since it constitutes a time when a bankruptcy creditor bears an obligation against the debtor with knowledge that the exercise of the Defendant’s right to offset was suspended of payment or a bankruptcy petition. In so determining, the lower court erred by misapprehending the legal doctrine on the effect

4. Therefore, without further proceeding to decide on the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok (Presiding Justice)