[1] Whether a set-off against an automatic claim against the principal obligor by the trustee as to the principal obligor is allowed (negative)

[2] In a case where the first bill discount and the joint and several guarantee act of the reorganization company related thereto are extended due to substitution after six months prior to the date of payment suspension by the reorganization company, whether the joint and several guarantee act of the reorganization company can be subject to "the avoidance power against free act" under Article 78 of the Company Reorganization Act (negative)

[1] If a set-off of a claim bearing a right of defense is allowed with an automatic claim as a set-off, such set-off is a result of the other party's loss of the other party's opportunity to exercise the right of defense by either party's declaration of intent of the set-off. Therefore, such set-off cannot be permitted. In particular, as long as the so-called "right of discharge" under Article 443 of the Civil Act, which the trustee guarantor holds against the principal obligor, is attached to the right of defense, set-off against the automatic claim cannot be permitted.

[2] The so-called substitution in which a financial institution and a debtor are treated as having repaid an existing debt only on a document without actually giving and receiving new funds is merely an extension of the maturity of the existing debt, barring any special circumstances, and in the event of such substitute substitution, the existing debt continues to exist after maintaining the identity of the existing debt. Therefore, in the event a loan transaction, such as the first bill discount and the joint and several surety of the reorganization company, is extended due to such substitute substitution, and the first loan transaction time becomes effective six months prior to the date of payment suspension by an ombudsman, the act of joint and several sureties of the reorganization company cannot be subject to avoidance power of gratuitous act as stipulated in Article 78 (1) 4 of the Company Reorganization Act.

[1] Articles 442, 443, and 492 of the Civil Code / [2] Articles 105 and 500 of the Civil Code, Article 78 (1) 4 of the Company Reorganization Act

[1] Supreme Court Decision 69Da1084 decided Oct. 28, 1969 (Gong1982, 603) 81Da595 decided May 25, 1982 (Gong1982, 603) / [2] Supreme Court Decision 94Da3445 decided Jun. 10, 1994 (Gong1994Ha, 1931), Supreme Court Decision 97Da1607 decided Feb. 27, 1998 (Gong198Sang, 861), Supreme Court Decision 2001Da16814 decided May 29, 2001 (Unpublished in Official Gazette)

Han-ro General Finance Corporation's taking-off (Law Firm Subdivision, Attorney Lee Sung-jin, Counsel for the plaintiff-appellant)

Non-party Administrator of Mine Construction Corporation

Seoul High Court Decision 2000Na47042, 47059 delivered on July 6, 200

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

1. We examine the first ground for appeal.

If a set-off of a claim bearing a right of defense is allowed with an automatic claim to which a set-off is attached, such set-off is not allowed as a result of the other party’s loss of the other party’s opportunity to exercise the right of defense by either of the set-offs (see Supreme Court Decision 69Da1084, Oct. 28, 1969). In particular, as the right of prior reimbursement under Article 442 of the Civil Act in which the trustee guarantor has against the principal obligor is attached with a right of defense, set-off against the automatic claim cannot be allowed as long as the so-called right of discharge under Article 443 of the Civil Act is attached with a right of defense (see Supreme Court Decision 81Da595, May 25, 1982).

Under the same view of the court below, the court below held that, since the claim for the prior reimbursement against the non-party 1 corporation, which is the trustee guarantor, was attached with the defense of the claim for discharge under Article 43 of the Civil Act, since the non-party 1 corporation, which is the principal debtor, was attached with the right of defense of the claim for discharge under Article 43 of the Civil Act, set-off is not allowed in its nature, and as long as the creditors of the claim already exercise the right as bankruptcy creditor against the bankruptcy estate of Han-ro, the proviso of Article 21 (1) of the Bankruptcy Act is applied so long as the creditors of the claim exercise the right as bankruptcy creditor against the bankruptcy estate, it cannot be set-off as the guarantor cannot exercise the right of prior reimbursement. The defendant reorganization company, which is the joint and several surety of the loans, which is the joint and several surety of the loans, which are the joint and several surety debt of Sungwon, which is the principal debtor, under Article 433 of the Civil Act, has a right of set-off based on the claim for prior reimbursement.

2. We examine the second ground for appeal.

The so-called substitution, which is to be treated by a financial institution and a debtor as discharging an existing debt only in the form of a new loan without actually giving and receiving new funds, is nothing more than an extension of the maturity of the existing debt and, in the event of such substitution, the existing debt remains identical (see, e.g., Supreme Court Decisions 97Da16077, Feb. 27, 1998; 2001Da16814, May 29, 201; 201Da581385, Jul. 23, 201). Where the maturity of the first loan transaction falls within six months prior to the date of payment suspension by an ombudsman due to the extension of the maturity due to such substitution, the joint and several surety by the reorganization company cannot be subject to avoidance power of gratuitous act as provided for in Article 78(1)4 of the Company Reorganization Act (see, e.g., Supreme Court Decisions 2001Da16814, May 29, 2001>

In this case, the court below accepted the judgment of the court of first instance and rejected the defendant's claim to exercise the right to set aside against the debt, which is the first bill discount on the basis that the first bill discount date prior to payment suspension six months prior to the payment suspension date, should be the first bill discount transaction, not the last substitute transaction date, but the first bill discount date should be the second bill discount transaction which is the first bill discount transaction day prior to the payment suspension suspension date, and the above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no misapprehension of legal principles as to the theory of lawsuit.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)