회생절차상 용선계약과 상계에 관한 몇 가지 문제

In the rehabilitation process, creditors may offset their claims to a limited extent as long as they meet the requirements set forth in Article 144 and Article 145 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter, ‘DRBA’) and the Civil Code. Additionally, the debtor may offset their claims against creditors with the court’s permission. Therefore, in the rehabilitation process concerning the Charterer, even if the Charterer’s claim for the amount equivalent to the remaining fuel oil price against the Shipowner is validly established due to the termination of a Charter Party by the administrator, the Shipowner can only offset their claim for hires against the Charterer and their debts to the Charterer within the limits set forth in Article 144 and Article 145 of the DRBA. Furthermore, if the return of the vessel by the Charterer occurs after the initiation of the rehabilitation process, there is a question as to whether the Shipowner’s obligation to return the amount equivalent to the remaining fuel oil price is considered as a debt incurred after the initiation of the rehabilitation process, as stipulated in Article 145, Paragraph 1 of the DRBA, and thus whether offsetting is prohibited. However, it is difficult to consider the Shipowner’s obligation regarding return of the amount equivalent to the remaining fuel oil price to the Charterer as falling under the provisions of Article 145, Paragraph 1 of the DRBA. Meanwhile, a question arises whether the Shipowner’s claims for hires against the Charterer’s claim for the amount equivalent to the remaining fuel price can be recouped against each other at equal amounts. However, there is no close relationship in the occurrence, existence, or extinction between the claims for hires and the claims for the amount equivalent to the remaining fuel price, so it is difficult to recognize a recoupment. Additionally, whether the administrator must make an advance payment for the fuel oil price to the fuel supplier in order to make an set-off with the debtor’s claim for the amount equivalent to the remaining fuel oil price against the Shipowner may also be a point of contention. Regardless of the establishment of the Charterer's liability for the breach of contract or tortious liability towards the fuel supplier, the ownership of the fuel is transferred from the fuel supplier to the Charterer upon delivery of the fuel. Therefore, it is reasonable to conclude that the Charterer can off-set a claim for the remaining fuel price against an obligation to pay hires. Lastly, there is a question of whether the Slot Charterer can off-set their claims against the Shipowner with their obligations to the Shipowner, or vice versa. However, in maritime practice, agreements regarding the settlement of slot chartering hire among liners that have entered into a joint operation agreement should be considered as special provisions regarding mutual calculations under Article 72 of the Commercial Code.