Whether the restriction on prohibition of offset becomes extinct upon completion of reorganization proceedings under the former Company Reorganization Act (affirmative)

The purport of limiting a set-off under Article 162(1) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) is to realize the purpose of the former Company Reorganization Act, i.e., restructuring of a company by preventing the exercise of the reorganization creditor’s indiscreet right by making it difficult for him to make efforts to mediate the company and hindering the progress of the procedures, such as the formulation of the reorganization plan. In light of such legislative intent and the fact that the individual exercise of the reorganization creditor’s rights is possible upon the completion of the reorganization procedure under the former Company Reorganization Act, unless otherwise provided in the reorganization plan, such restriction as to the set-off shall be interpreted as removing.

Article 162 (1) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 144 (1) of the Debtor Rehabilitation and Bankruptcy Act)

Plaintiff Co., Ltd. (Attorney Lee Woo-soo, Counsel for plaintiff-appellant)

Construction Financial Cooperative (Law Firm, Kim & Lee LLC et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2007Na11560 decided June 13, 2008

The judgment of the court below is reversed, and the case is remanded to Daegu High Court.

We examine the grounds of appeal.

1. The judgment of the court below

The court below, based on the reasoning of the judgment of the court of first instance, stated the following facts: on October 31, 200, the plaintiff filed an application for the commencement of company reorganization proceedings with the Daegu District Court on November 29, 200; on January 13, 201, the company reorganization proceedings were decided on October 18, 202, the third party acceptance was decided on December 17, 200; on March 13, 2003, the company reorganization proceedings were completed on March 5, 200, the defendant's claim for the above amount of KRW 5,410 (hereinafter referred to as "the above investment shares")'s total amount of KRW 20,000, KRW 70, KRW 70, KRW 70, KRW 410, KRW 70, KRW 70, KRW 197, KRW 70, KRW 70, KRW 197, KRW 37, which was the defendant's claim for reimbursement against the plaintiff.

The court below reasoned that the defendant is obligated to return the deposit of this case to the plaintiff, barring special circumstances pursuant to Article 60 (4) of the Framework Act on the Construction Industry, and rejected all the defendant's defenses disputing the existence or absence of the above obligation to return the deposit of this case, and held that the defendant is obligated to return the remaining amount of the limited amount of KRW 191,416,00 which was set off and extinguished within the reported period of the above reorganization claim among the deposit of this case.

2. Judgment of the court below

A. As to the first ground for appeal

The court below held that the purport of the articles of incorporation provision of this case is to harm a partner's capital adequacy and prevent an act contrary to the equality with other partners, or in light of the language and text of the provision, the article of this case does not purport to the effect that until a partner's debt to a partner is extinguished, the member can not first demand the cooperative to acquire an investment share in order to recover the investment amount, and that the cooperative can not seek the return of the balance of the refund amount even when it acquires an investment share from a partner by exercising its security right. In light of the records, the court below's decision on this part is just and acceptable, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in

B. As to the grounds of appeal Nos. 2 and 3

The court below rejected the defendant's assertion on the ground that the return of the reorganization claim and the above deposit cannot be denied on the ground that the former Company Reorganization Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same) can set off a set-off prior to the expiration of the reporting period of the reorganization claim and the security under Article 162 (1) of the former Company Reorganization Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same) can be set-off within the same period, since it is no longer possible to set-off the reorganization claim and the above deposit when the reporting period of the reorganization claim has expired as in this case.

The purpose of limiting a set-off under Article 162 (1) of the former Company Reorganization Act is to realize the purpose of the former Company Reorganization Act, which is corporate restructuring, by preventing the exercise of the reorganization creditors' indisrush right by making it difficult to make efforts for the reorganization of the company and hindering the progress of the reorganization procedures, such as the preparation of the reorganization plan. In light of the legislative intent and the fact that the exercise of individual rights by the reorganization creditors is possible in the event the reorganization procedures are completed, unless otherwise provided in the reorganization plan, the above limitation on the set-off shall be interpreted to have been resolved when the reorganization procedures under the former Company Reorganization Act are terminated

Therefore, if the above company reorganization procedure was completed on March 13, 2003, barring any special circumstance, the defendant can offset the above reorganization claim against the obligation to return the deposit in this case with automatic bonds, and the provision of this case of this case of this case of this case of this case of the purport that the payment may be refused if there are justifiable grounds for reserving the return, such as the existence of union claims secured by the acquired equity shares or the repayment of union claims with the amount of the share acquired, even if not, the amount of the share acquired can be refunded. Thus, the above offset is also possible. Thus, the court below should have judged the legitimacy of the defendant's assertion under the above reorganization procedure of this case on the premise that the restriction of offset under the above reorganization procedure was terminated, but the court below rejected the defendant's assertion on the ground that the reported period of the above reorganization claim of this case had expired. Thus, the defendant's appeal pointing this out has merit.

C. Regarding ground of appeal No. 4

The court below held that unless the defendant notified the plaintiff of the "to keep the deposit of this case as the deposit of this case until the expiration of the plaintiff's obligation," and reported the reorganization claim of this case with the prior right to indemnity, the deposit of this case cannot be deemed as the advance indemnity that the defendant received by exercising the prior right to indemnity. In light of the records, the judgment of the court below can be deemed legitimate, and there is no violation of the law of experience or the law of evidence

D. Regarding ground of appeal No. 5

The recognition of an obligation as a ground for interruption of extinctive prescription is established by expressing the fact that an obligor, who is a party to the benefit of prescription, is aware of the existence of a right against a person who is to lose the right due to the completion of extinctive prescription. The method of indication does not require any form, and it is possible to do so in an implied manner without necessarily requiring an explicit indication. However, the implied recognition should be made in such a way that the obligor, at least on the premise that the obligor is aware of the existence and amount of the obligation, can be inferred by means of expressing that the obligor is aware of the obligation (see Supreme Court Decision 2005Da64552, Nov. 29, 2007).

The court below held that the notification of "2,361,307,050 won" in the response (Evidence A2) to the Debt Inquiry Council sent by the defendant to the plaintiff on March 4, 2005 constitutes a ground for the interruption of prescription. In light of the above legal principles and records, the court below's decision on this part is acceptable, and there is no violation of the rules of experience and evidence collection as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the judgment of the court below is reversed by accepting the grounds of appeal Nos. 2 and 3 of the appellant, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Ill-sook (Presiding Justice)