도산절차에서 보증인의 상계권 행사

Abstract

1. The right to advance reimbursement of the trustee guarantor is the current claim and exists at the time of the declaration of bankruptcy or the commencement of rehabilitation proceedings, and thus, constitutes a bankruptcy claim or a rehabilitation claim.  The right to advance reimbursement is attached to the right of defense of the claim for immunity as prescribed in Article 443 of the Civil Act, so it cannot be set off by using it as an automatic claim. 2. A trustee guarantor's right to ex post facto reimbursement arises from a guarantee contract based on a statutory condition precedent, i.e., repayment by a guarantor. Even if a trustee guarantor's repayment is made after the debtor is declared bankrupt or rehabilitation procedures commence, if the conclusion of a guarantee contract is made prior to that date, the guarantee legal relation which forms the basis of the right to ex post facto reimbursement arises before the declaration of bankruptcy or the commencement of rehabilitation procedures, and thus, constitutes a bankruptcy claim or rehabilitation claim.  A set-off based on the trustee guarantor's ex post facto reimbursement right is an exercise of the right to set-off based on a claim that already existed as a future reimbursement right at the time bankruptcy procedure commences. In bankruptcy procedure, an offset based on a future reimbursement right as an automatic claim is permitted. In rehabilitation procedure, like in bankruptcy procedure, a set-off based on a future reimbursement right is also permitted in rehabilitation procedure as well. 3. The exercise of the right of set-off by an unrequested guarantor's right of ex post facto reimbursement by applying Article 422 subparagraph 3 of the Debtor Rehabilitation Act by analogy is impermissible on the grounds that: (a) at the time of the commencement of the bankruptcy procedure against the principal debtor, there is no current claim against the debtor; (b) even the guarantee contract against the principal debtor is valid; (c) it cannot be deemed that the unrequested guarantor has a reasonable expectation of a set-off; and (d) it is difficult to deem that there is a justifiable ground to tolerate a set-off in relation to other creditors. 4. Where rehabilitation procedures commence for the principal debtor while an offset has already occurred, the guarantor may exercise the right of set-off under Article 434 of the Civil Act before the claim reporting period expires. The same applies to the bankruptcy procedure.