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| TITLE | Supreme Court Decision 2015Da252501 Decided March 15, 2017【Affirmation of the Absence of Debt】 [full Text] |
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[1] Purport of allowing for an offset within limits without resorting to rehabilitation procedure even after its commencement, and likewise allowing for an offset where the obligation is time-fixed, under Article 144(1) of the Debtor Rehabilitation and Bankruptcy Act In the context of a time-fixed obligation, whether the rehabilitation creditor may perform an offset by waiving the benefit of time before the expiration of the reporting period (affirmative) [2] Purport of prohibiting an offset based on the rehabilitation claim where a debtor to the rehabilitation debtor, on whom rehabilitation proceedings have commenced, acquired the rehabilitation claim with the knowledge of the suspension of payment or the filing for the commencement of rehabilitation proceedings under Article 145 Subparag. 4 main text of the Debtor Rehabilitation and Bankruptcy Act Purport of making an exception allowing for an offset based on the rehabilitation claim where a debtor to the rehabilitation debtor acquired the rehabilitation claim by virtue of a cause that had arisen before he/she became aware of the suspension of payment or the filing for the commencement of rehabilitation proceedings under Subparag. 4 proviso and Subparag. 2 proviso Item (b) of the same Article Requirements for recognizing that a claim, which is acquired “after becoming aware of” the payment suspension or the filing for the commencement of rehabilitation proceedings, arose from a “cause that had occurred before becoming aware” of the fact [3] Scope of an obligation secured by real estate lease deposit Whether the landlord’s obligation to return the deposit becomes due at the point of termination of lease, the prospective realization and/or arrival of which is definite (affirmative in principle) Whether a landlord may set-off against the tenant’s claim for the return of lease deposit while the lease is still in effect by waiving the benefit of time (affirmative) In the event the landlord declares his/her intent to perform an offset while the lease is in effect, whether he/she may be deemed to have waived the benefit of time on his/her obligation to return the lease deposit (affirmative) [4] In the case where: (a) Company A is at the same time a member of the golf club run by Company B, having signed a membership agreement with Company B and paid membership deposit, as well as Company B’s landlord, having received the lease deposit and rented out the land for the golf courses and clubhouse buildings to Company B; and (b) upon Company B’s filing for the commencement of rehabilitation proceedings during the lease term, Company A applied to withdraw from its golf club membership and declared its intention to set-off part of its claim for Company B’s return of its membership deposit against Company B’s claim for Company A’s return of the lease deposit, the case holding that the claim for the return of membership deposit constitutes rehabilitation claim acquired by virtue of a “cause that had occurred before becoming aware of the filing for the commencement of rehabilitation proceedings,” which is a ground for exception to the prohibition of an offset under Article 145 Subparag. 4 proviso and Subparag. 2 proviso Item (b) of the Debtor Rehabilitation and Bankruptcy Act |
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