별제권 목적의 환수와 파산절차상의 상계 – 대법원 2023.6.15. 선고 2020다277481 판결 –

When the lessor is declared bankrupt after the lessee meets the requirements for opposing power as provided for in the provisions of Article 3 (1) of the Housing Lease Protection Act and is given a confirmation date in a housing lease agreement, the lessee holds the status equivalent to the holder of the right to foreclose outside bankruptcy in the bankruptcy procedures (Article 415 of the Debtor Rehabilitation and Bankruptcy Act). The 2020-da-277481 ruling of the Supreme Court dated June 15, 2023 has its significance as it is the first precedent clarifying that a lessee cannot offset the debt owed to the bankruptcy estate with a claim for return of the lease deposits after the lessor is declared bankrupt, but the lessee’s claim of return of the price according to the retrieval procedure, etc. of subject matter of the right to foreclose outside bankruptcy set forth in Article 492, No. 14 of the Debtor Rehabilitation and Bankruptcy Act is not a bankruptcy claim occurred due to any cause prior to the declaration of bankruptcy; therefore, the trustee in bankruptcy may offset the claim of sale price resulting from conversion of rental housing for sale as an automatic claim with the lessee’s claim of return of the price or reach an agreement of offset. If the transferee has not performed the benefit in return even though the trustee in bankruptcy has transferred his or her property subject to repossession rights, the repossession right holder may claim the transfer of the rights to claim the performance of the benefit in return (Article 410 (1) of the Debtor Rehabilitation and Bankruptcy Act). If the trustee in bankruptcy has disposed of the property subject to repossession rights not included in the bankruptcy estate, this is deemed invalid as it is a disposal by an un-entitled person. However, if it is confirmed by the right holder, such disposal becomes valid, and the confirmation can be done either expressly or impliedly. Therefore, exercise of alternative repossession rights by the plaintiff, the right holder in the case of subject matter, against the trustee in bankruptcy, the defendant, is the confirmation of disposal of the property subject to the repossession rights by the trustee in bankruptcy. In such case, the repossession right holder may claim the return of the profit that the trustee in bankruptcy received from such disposal against the trustee in bankruptcy, and this is a claim that accrues to the bankruptcy estate from clerical work or unlawful gains set forth in Article 473. No. 5 of the Debtor Rehabilitation and Bankruptcy Act. Therefore, the plaintiff may exercise the right to claim to compensation for unfair profits gained by the infringer for the proceeds of realization of the land subject to repossession rights as estate claims.