부인권 행사로 파산채권자가 부담하게 된 원상회복채무와 상계의 금지 – 대법원 2025.5.15. 선고 2025다202598 판결 –

With respect to whether a bankruptcy creditor may set off a bankruptcy claim against a restitution obligation incurred as a passive claim as a result of the exercise of the avoidance power, the Supreme Court, in its decision rendered on May 15, 2025 (Supreme Court Decision 2025Da202598), denied such set-off for the following reasons. When the avoidance power is exercised, the counterparty must return the performance received or reimburse its value, thereby restoring the claims of the bankruptcy estate and the counterparty to their original state. This制度 is intended to preserve the integrity of the bankruptcy estate and to enable equitable distribution to bankruptcy creditors. If a bankruptcy creditor were allowed to set off its bankruptcy claim by using the trustee's claim for return of performance or reimbursement of value as a passive claim, that creditor would obtain satisfaction of its claim in priority over other bankruptcy creditors, thereby undermining equality among creditors and contravening the purpose of the avoidance power. Although the restitution obligation arising from the exercise of the avoidance power is generated by the exercise of the avoidance power under the Debtor Rehabilitation and Bankruptcy Act, such obligation is nevertheless based on the prior affirmative act of the insolvency creditor. In addition, both the prohibition of set-off and the avoidance power deny the effectiveness of acts that undermine equality among creditors from the standpoint of fairness. If a bankruptcy creditor, who is required to restore property that has improperly left the debtor's estate as a result of the exercise of the avoidance power, were allowed to set off that restitution obligation against its existing claims, the purposes of both制度 would be completely negated. Accordingly, the stance of the decision under review, which denies set-off between a bankruptcy claim and a restitution obligation incurred by a bankruptcy creditor as a result of the exercise of the avoidance power, is reasonable. Meanwhile, Article 145(2) and Article 422(2) of the Debtor Rehabilitation and Bankruptcy Act allow set-off where an insolvency creditor incurred an obligation to the debtor based on a “cause” that arose before the creditor became aware of the suspension of payments or the filing of a bankruptcy petition. However, this constitutes a significant exception to the principle that there is no need to protect an insolvency creditor's expectation of set-off where the obligation is incurred after the commencement of insolvency proceedings and the requirements for set-off are met. Therefore, a strict interpretation is required.