相計에 대한 否認權 행사 관련 判決의 不當性 －對象判決: 대법원 2011.11.24. 선고 2009다76362 판결－

For an efficient recovery of the company that has applied for a corporate rehabilitation proceeding, the Debtor Rehabilitation and Bankruptcy Act takes measures to preserve various company’s assets such as temporary integrity, veto power, until the commencement of the law enforcement. Among those, the veto power is a quite authoritative power to recover the loss of asset, the profit loss, and the equity among creditors as retroactively vetoing the power of the Act by the custodian after the commencement of rehabilitation proceeding, when an act was deliberately carried while perceiving the damage to recovery creditors or guarantors or when an act was such as settlement payment or collateral offer that harms the fairness against other recovery creditors. The Debtor Rehabilitation and Bankruptcy Act, however, allows an exceptional set-off right in the name of the security of equity for those who retain debts and credits. An immediate problem arises at this moment. Those who exercise the set-off right as meeting the set-off conditions can nullify debts and credits with the same amount. The consequence comes to the effect of the payment of credits as much as the pertinent amount. At this moment, the custodian can file a veto power as claiming the injustice of set-off, and the situation is unclear. According to an exemplary annotation of the judgment of the Supreme Court, the veto power can be enforced in this case. Nevertheless, the judgment can be unjustified with the following reasons. ① The judgment of the Supreme Court did not follow a rational decision by way of a comprehensive analysis of the Debtor Rehabilitation and Bankruptcy Act. The act of enforcement is also subject to a veto. It can only be a fragmentary analysis based on a simple logic that an analogy can be applicable to the act of security enforcement by the creditor, not the execution organization. ② The judgment of the Supreme Court did not take a consideration the point that the Debtor Rehabilitation and Bankruptcy Act currently guarantees the set-off right. This comes to a significant flaw of the failure of the analysis of positive laws that are supposed to be a critical fact in the judgment. ③ The veto power is generally to maintain equity for all of the common creditors, and the set-off right is uniquely to recognize justice of the debtor for the creditor on both debt and credit in the company on the rehabilitation proceeding. Therefore, although the veto power cannot infringe on the set-off right, the judgment of the Supreme Court failed to understand the limit and nature of the veto power. ④ The corporate’s disposal of the security investment by a union member is stipulated in the General Law in Construction Industry, but it must be considered as an exceptional law applicable only to the corporate and union members rather than the Debtor Rehabilitation and Bankruptcy Act applicable to all debtors. The Supreme Court, nevertheless, did not consider a provision of special laws. ⑤ The judgment of the Supreme Court omitted a verification of critical issues on the set-off right presented in the second trial of the judgment of a high court.