기업개선작업절차에서의 출자전환의 법적성격 및 부진정연대채무자 중 1인이 한 상계 내지 상계계약의 효력

This treatise discusses the Supreme Court ruling in 2008Da97218 delivered on September 16, 2010, where the court dealt with the issue on how to determine the legal characterization of debt-equity swap(DES) performed in the work-out procedure and how to view the legal force of set-off or set-off agreement by one of the pseudo joint-and-several liability debtors or other debtors. The majority opinion held that the creditor's new stock subscription price indebtedness and the debtor's antecedent debt become extinct as prescribed in the set-off agreement, in case of the work-out procedure DES performed in the form of a set-off agreement where the debtor company issues new stocks to the creditor bank and the debtor and the creditor agree to extinguish the creditor's new stock subscription price indebtedness and the debtor's antecedent debt in terms of the same amount. Next, the majority opinion ruled that, in the event that one of the pseudo joint-and-several liability debtors offset her claim against the creditor's claim, the debt-extinguishment effect by the set-off works on the other debtor(s) as well. Also, it was held that the same principle applies even in case of the set-off agreement(as opposed to the set-off) between one of the pseudo joint-and-several liability debtors and the creditor. Accordingly, the court reversed the Supreme Court rulings heretofore which had ruled that the set-off by the pseudo joint-and-several liability debtors has no effect whatsoever on the other debtors. The case should possibly not only have a significant impact on DES practices in the work-out procedure, but also be an important precedent from the perspective of theory about legal treatment of the pseudo joint-and-several liability in general.