[1] The meaning of "a cause" in the "liability borne by a rehabilitation creditor or a rehabilitation secured creditor due to a cause arising before it becomes known that an application for suspension of payment or commencement of rehabilitation procedures has been filed," which is exceptionally allowed an offset pursuant to Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act

[2] In a case where Gap bank entered into an agreement with Eul corporation to pay the price of goods, etc. to the designated account opened in order to appropriate it for the repayment of loans to Eul corporation, and Eul corporation entered into a credit transaction agreement with Byung corporation and carried out the loan and appropriated the money deposited in the above account for the repayment of the loan, and Eul corporation deposited the money into the above account after the commencement of the rehabilitation procedure with Byung corporation, and Eul corporation claimed a set-off against the obligation to return the deposit and the obligation to lend the loan, the case holding that the above declaration of intent of set-off is valid pursuant to Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act on the ground that the above declaration of intention of set-off was related to the obligation to

[3] Whether a creditor or a third party's act can be subject to avoidance under the Debtor Rehabilitation and Bankruptcy Act (affirmative with qualification)

[1] Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 145 subparagraph 2 (b) of the Debtor Rehabilitation and Bankruptcy Act / [3] Article 100 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 2003Da61931 Decided September 28, 2005 (Gong2005Ha, 1669) Supreme Court Decision 2005Da24981 Decided July 10, 2008 (Gong2008Ha, 1118) / [3] Supreme Court Decision 2009Da76362 Decided November 24, 201 (Gong2012Sang, 16)

[Defendant-Appellant] Plaintiff (Law Firm LLC, Attorneys Kim Byung-su et al., Counsel for defendant-appellant)

Industrial Bank of Korea (Law Firm LLC, Attorneys Kim Il-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na60796 decided December 27, 2012

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. Article 145 Subparag. 2(b) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) exceptionally permits a set-off against “debts borne by rehabilitation creditors or rehabilitation secured creditors due to reasons arising before it becomes known that an application for suspension of payment or commencement of rehabilitation procedures has been filed.” The term “reasons” here means cases where it is directly and indirectly to the extent that the obligee would bring about a specific set-off expectation, and where it is deemed that the obligee’s trust in relation to the effect of set-off is worth protecting the obligee’s specific circumstances (see, e.g., Supreme Court Decisions 2003Da61931, Sept. 28, 2005; 2005Da24981, Jul. 10, 2008).

B. According to the reasoning of the judgment below, the facts acknowledged by the court below are as follows.

(1) On October 11, 2004, the Defendant entered into a network loan agreement with the Defendant on March 2005, 2005 (hereinafter “the instant loan agreement”) with the Defendant to pay only the amount of goods to the designated account opened by the Defendant in order to enable the Defendant to cover the amount of goods, etc. paid by the Defendant to the Defendant for the repayment of the Defendant’s loan to the Defendant. Accordingly, the U.S. P. P. S. P. S. P. S. S. P.S. Co., Ltd. (hereinafter “S. P. P. P.S. P.C”) (hereinafter “the instant loan agreement”) pursuant to the said agreement.

(2) As to the specific amount of loan under the instant loan agreement, the U.S. P.S. P. L.S.E. applied for a loan on an individual basis in accordance with the order that L.S.E. electronically notifies the Defendant, and the Defendant agreed to lend an appropriate amount in accordance with the order amount. Each maturity date of the individual loan was set at six months from the delivery period

(3) If the purchase price of the goods of ELS is deposited with the instant voucher opened by the Defendant, the Defendant agreed to automatically appropriate the purchase price of the goods to the loan of this case without any separate notice. ELS and the U.S. E-S. E-S. E-S. E-S. E-S. E-S.E-S. agreed not to change the method of payment of the goods to the U.S. E-S. E-S. E-S. E-S. E-S. E-S. E-S. E-S. without the Defendant’s consent, ELS cannot change the method of payment of the goods to the U.S. E-S. E-S. E-S. E-S. without the Defendant’s consent.

(4) On March 2010, the Defendant appropriated on the instant loan claim the amount transferred to the instant Mypbook by ELI to the price for the goods against the U.S. P. P. Mypbook.

(5) On November 30, 201, 201, the UPE filed an application for commencement of the rehabilitation procedure with the Incheon District Court, and on December 8, 201, the ELE deposited KRW 521,330,816 of the instant price of the instant goods in the MPE passbook even after the decision on preservative measures for the UPE was rendered on December 8, 201.

C. Based on the above factual basis, the court below determined that the loan agreement of this case contains an agreement on the transfer of the goods to be paid only through the passbook of this case between the U.S. P.S. and the defendant and the ELI., and that the above agreement cannot be arbitrarily withdrawn or modified under the terms of the agreement. Thus, it is reasonable to view that the defendant had a legitimate trust that the defendant would offset the amount of the goods of this case against the defendant's loan claims by using the passive credit because it was almost final and conclusive that the defendant would already bear the obligation to return the goods of this case before filing an application for the commencement of the procedure, since the defendant's expression of offset against the amount of the goods of this case was related to the obligation to be borne by the defendant under the loan agreement of this case, which was the cause before the filing of the application for the commencement of the procedure, and thus, the defendant's obligation to return the goods of this case is valid pursuant to the proviso of Article 145 subparagraph 2 (b) of the Act.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles on Article 145 subparagraph 2 (b) of the Act, thereby failing to exhaust all necessary deliberations or by inconsistency with the reasoning of the judgment.

2. Regarding ground of appeal No. 2

A. The denial under Article 100 of the Act is, in principle, subject to an obligor’s act. In a case where there is only an obligee or a third party’s act without the obligor’s act, the obligor may be subject to avoidance only when there is an exceptional reason to view that the obligor’s act was processed in collusion with the obligee or due to other special circumstances (see Supreme Court Decision 2009Da76362, Nov. 24, 201).

B. According to the reasoning of the judgment below, the court below determined that the termination of the loan obligation of this case is not subject to the avoidance power under Article 100 (1) 2 of the Act, on the ground that there is no evidence to acknowledge that the ELE et al. in collusion with the defendant when depositing goods, etc. in the instant marina passbook, or that there is no special circumstance to deem the above deposit act of the ELE et al. as an act of extinguishment of debt by the ELE et al., and that the extinction of the loan obligation of this case is by the defendant's declaration of offset, who is a rehabilitation creditor regardless of the intention of the ELE et al., the debtor for rehabilitation, is not subject to the avoidance power under Article 100 (1) 2.

In light of the above legal principles and the records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles or inconsistent reasoning concerning Article 100 (1) 2(b) of the Act or Article 104 of the Act.

3. 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 on the bench.

Justices Park Poe-young (Presiding Justice)