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

[2] Whether an enforcement act is an element to deny under Article 100(1)2 of the Debtor Rehabilitation and Bankruptcy Act, and there must be special circumstances to see it as identical to the debtor's act (negative) and the meaning of "execution act" in this case

[3] Whether the act of a pledgee, not by the executive organ, directly sells the pledged article or by acquiring it by himself, and appropriated it to the secured claim can be subject to the exercise of avoidance power under Article 100(1)2 of the Debtor Rehabilitation and Bankruptcy Act (affirmative)

[4] In a case where an executory act is denied by Article 100(1)2 of the Debtor Rehabilitation and Bankruptcy Act, whether the executory act satisfies the requirements such as harm of rehabilitation creditors or rehabilitation secured creditors, etc., and the method of determining whether the executory act causes harm to rehabilitation creditors, etc.

[5] The case holding that the act of acquiring investment certificates of a cooperative may be denied pursuant to Article 100 (1) 2 of the Debtor Rehabilitation and Bankruptcy Act, and the act of offsetting the amount of the principal and interest on the loan and the obligation for the acquisition of investment certificates may not be maintained in case where the specialized construction mutual aid association, where the specialized construction mutual aid association, extended funds to Gap corporation which held investment shares in the cooperative and received a pledge on the investment shares, and the company Gap acquired the above investment certificates in order to execute the pledge right, and transferred its ownership rights to it in the future, and then transferred its ownership rights to it in the future.

[1] The denial of the Debtor Rehabilitation and Bankruptcy Act is, in principle, subject to the debtor's act. In the event that there is only a creditor or a third party's act without the debtor's act, the debtor's act may be denied only when there are exceptional grounds to view that the debtor's act was processed in collusion with the creditor, or due to other special circumstances.

[2] According to the latter part of Article 104 of the Debtor Rehabilitation and Bankruptcy Act, the right to set aside can be exercised even when an act is conducted by an act of enforcement. In the event that an act of enforcement is to be set aside by Article 100(1)2 of the same Act, there is no special circumstance to see it as the act of the debtor. This is because Article 104 of the same Act provides that the act of enforcement is to be set up as a matter of course by the decision of the enforcement agency, such as the enforcement court. In such a case, there is no room to intervene in the act of the debtor, and there is no restriction in Article 104 of the same Act, unlike the act of enforcement which prescribes the subject of the act of avoidance as the debtor. In this case, the act of enforcement refers to the act of directly pursuing the satisfaction of the claim by the execution title or the exercise of the security right, and it does not constitute an act of acquiring the security right or establishing the security right.

[3] Although the enforcement act under Article 104 of the Debtor Rehabilitation and Bankruptcy Act refers to the act of the enforcement agency in principle, a pledgee may exercise the right to set aside under Article 100 (1) 2 of the same Act, by analogying the case of the enforcement act by the enforcement agency, even with respect to the act of selling the pledged article or acquiring it by himself/herself without resorting to the enforcement agency, which is subject to the exercise of the right to set aside under Article 100 (1) 2 of the same Act. This is because, unless viewed as above, it is the act of executing the right to set aside against the rehabilitation creditor or the rehabilitation secured creditor even if it is based on the execution of the right to set aside

[4] The requirements falling under any of the subparagraphs of Article 100(1) of the Debtor Rehabilitation and Bankruptcy Act, except for the subject of the act of avoidance, should be met in the case of so-called crisis avoidance under subparagraph 2. In this case, when determining whether an act detrimental to rehabilitation creditors, etc., the requirements should be met, such as the damage of rehabilitation creditors or rehabilitation secured creditors due to the act of execution. In such a case, the determination of whether an act detrimental to rehabilitation creditors, etc. should be made by comprehensively taking into account all the elements such as the following: (a) the procedure aimed at facilitating rehabilitation of the debtor by enabling rehabilitation creditors to recover corporate profit-making power; (b) the procedural characteristics such as having no right of separation against the secured party, and the act of execution of security rights by commencement of rehabilitation procedures, including the contents of the act of execution; (c)

[5] The case holding that in a case where the Specialized Construction Mutual Aid Association (hereinafter referred to as "Special Construction Mutual Aid Association") extended a loan to Company A, which held investment shares, and received a pledge on the investment shares, and it notified Company A to the effect that the decision to commence rehabilitation procedures was made, and the company A acquired the above investment shares to offset the claim for the principal and interest of the loan and the obligation for the acquisition of the investment shares against the amount equal to the amount of the investment shares, the union's act of acquiring the investment certificates and notified Company A of its intent to offset the amount of the purchase price of the investment shares against the amount equal to the amount of the investment shares, the right of pledge against the investment certificates was finally implemented by acquiring the investment certificates and notifying Company A of its transfer of the intent of offset. This can be the subject of the avoidance power under Article 100 (1) 2 of the Debtor Rehabilitation and Bankruptcy Act, and the above investment certificates can be easily expected as the principal assets necessary for the debtor company to continue its business, and thus, the act of acquiring the investment certificates can not be offset against the result.

[1] Articles 100(1) and 391 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 100(1)2 and 104 of the Debtor Rehabilitation and Bankruptcy Act / [3] Articles 100(1)2 and 104 of the Debtor Rehabilitation and Bankruptcy Act / [4] Articles 100(1)2 and 104 of the Debtor Rehabilitation and Bankruptcy Act / [5] Articles 100(1)2 and 104 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 99Da73159 Decided July 9, 2002 (Gong2002Ha, 1899), Supreme Court Decision 2003Da53497 Decided February 12, 2004 (Gong2004Sang, 448), Supreme Court Decision 2011Da56637, 56644 Decided October 13, 201 (Gong201Ha, 2351)

Administrator of the Korea Debtor Rehabilitation and Bankruptcy Corporation (Law Firm, Kim & Lee LLC, Attorneys Hun-he et al., Counsel for the plaintiff-appellant-appellant)

Specialized Construction Financial Cooperative (Law Firm Gyeong & Yang, Attorneys Lee Ba-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na12650 decided August 20, 2009

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found the following facts as a whole. The defendant is a corporation established under the Framework Act on the Construction Industry and operated a guarantee business and a loan business for funds as its main business, and Japan M&D Co., Ltd. (hereinafter "debtor") as the defendant's member held 200 shares of 200 shares against the defendant. On June 23, 2006, the defendant entered into a limited transaction agreement with the defendant and provided 200 shares of 200 shares as security, and received a loan of KRW 144,00,000 after establishing a pledge right, and the debtor applied for the commencement of rehabilitation procedure on May 29, 2007. The debtor was decided to commence the rehabilitation procedure on June 29, 2007. The plaintiff appointed the administrator, the defendant notified the debtor of the amount of 205 shares of 40 shares of 140 shares of the loan, and the debtor notified the debtor of the acquisition of the above shares of 2005 shares of 207.4.7.68

In addition, based on the above facts, the court below rejected the plaintiff's conjunctive assertion that the defendant acquired the investment certificate of this case after the debtor's commencement of rehabilitation procedure and appropriated it for the repayment of the principal and interest of the loan of this case or offsets the claim for the principal and interest of the above loan of this case with the claim for the payment of the principal and interest of the loan of this case without including the debtor's act at all, and it does not mean that the defendant's acquisition of the investment certificate of this case and set-off can not be deemed as identical to the debtor's act, such as the defendant's collusion with the debtor, and there is no reason to suggest that the defendant's acquisition of the investment certificate of this case and set-off should be the same as the debtor's act of the debtor's act, and therefore it cannot be viewed that the defendant's act would undermine the fairness among creditors, and the provisions on the denial of the execution act of Article

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. In principle, the denial under the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act") is subject to the debtor's act. In a case where there is only a creditor or a third party's act without the debtor's act, the debtor may be denied only when there are exceptional grounds that can be seen as the debtor's act in collusion with the creditor or due to other special circumstances (see, e.g., Supreme Court Decisions 9Da73159, Jul. 9, 2002; 2003Da53497, Feb. 12, 2004). However, under the latter part of Article 104 of the Debtor Rehabilitation Act, the right to set aside may be exercised even when the act of denying is based on the enforcement act, and there is no need to view it as the one of the debtor's exercise of the right to set aside under Article 100 (1) 2 of the Debtor Rehabilitation Act. This is because, in a case where the debtor's act of denying under Article 104 of the Debtor Rehabilitation Act does not necessarily constitute an act of enforcement under Article 10 of the Debtor Rehabilitation Act.

Meanwhile, as a matter of principle, an enforcement act under Article 104 of the Debtor Rehabilitation Act refers to an enforcement act of the enforcement agency. However, inasmuch as a pledgee directly sells a pledged article or acquires it by himself/herself and appropriates the secured claim, it may be subject to the exercise of avoidance power under Article 100(1)2 of the Debtor Rehabilitation Act, by analogying the enforcement act by the enforcement agency. In the same sense, it is unreasonable to determine whether it is subject to avoidance according to the flexible circumstances, i.e., whether it is based on the enforcement act of a pledge that damages rehabilitation creditors or rehabilitation secured creditors, notwithstanding the fact that it is an enforcement act of a pledge that causes damage to the enforcement agency.

In addition, even when exercising the right to set aside against an enforcement act, the requirements falling under any of the subparagraphs of Article 100(1) of the Debtor Rehabilitation Act, except for the subject of the act of action, should be met. In the case of the so-called crisis avoidance under subparagraph 2, requirements such as damage to rehabilitation creditors or rehabilitation secured creditors should be satisfied. In this case, the determination of whether the act of causing damage to rehabilitation creditors, etc. is a procedure aimed at facilitating the debtor's rehabilitation by enabling rehabilitation procedures to recover corporate profit, unlike bankruptcy procedures, it is determined by comprehensively taking into account all the factors such as the following: (a) there is no right to set aside against the bankruptcy procedures, and there is procedural specificity such as the exercise of the right to set aside by the commencement of rehabilitation procedures, and the contents of the enforcement act; (b) the existence of assets

B. In light of the above legal principles, inasmuch as the Defendant acquired the instant contribution certificates on June 28, 2007 and transferred its ownership in the future, and notified the debtor of his/her intent of offsetting the principal and interest on loans and the acquisition price of the instant contribution certificates on July 2, 2007, it shall be deemed that the right of pledge on the instant contribution certificates was finally exercised. Accordingly, the act of enforcement under the latter part of Article 104 of the Debtor Rehabilitation Act may be subject to the exercise of avoidance power under Article 100(1)2 of the Debtor Rehabilitation Act, based on the enforcement act under the latter part of Article 104 of the Debtor Rehabilitation Act.

Furthermore, according to the records, the debtor is a company that manufactures and processes glass and supplies them to the construction site, etc., and the debtor concludes a glass supply contract, etc., various guarantee certificates issued by the defendant, such as bid guarantee, performance bond, and defect liability bond, are required. According to the defendant's articles of incorporation, etc., the guarantee limit of the guarantee certificate is determined on the basis of the amount of equity shares held by the relevant association members based on the investment certificate. Therefore, it can be easily anticipated that the defendant's acquisition of the investment certificate of this case may cause significant harm to the debtor's rehabilitation by acquiring it as major assets necessary for the debtor to continue his/her business. Thus, it is reasonable to view that the defendant's acquisition of the investment certificate of this case is prejudicial

Therefore, the Defendant’s act of acquiring the instant investment certificate on June 28, 2007 can be denied under Article 100(1)2 of the Debtor Rehabilitation Act, and as a result, it is clear that the Defendant’s act of offsetting the principal and interest on the instant loan and the obligation for the acquisition price of the instant investment certificate on July 2, 2007 cannot be maintained.

C. Therefore, the court below's rejection of the plaintiff's preliminary assertion solely on the ground of its decision is erroneous in the misapprehension of legal principles as to the subject of exercise of the avoidance power or the requirements under the Debtor Rehabilitation Act, which affected the conclusion of the judgment. The ground of appeal pointing this out

3. Therefore, 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 Park Poe-young (Presiding Justice)