1990.07.19

1988 (O) 1457

Minshu Vol. 44, No. 5

Judgment concerning the case regarding a salary payment body's act of deducting the remaining amount of a loan from the salary of a national public employee, who is a member of Association D, and paying the deducted amount to the aforementioned association under Article 101, paragraph (2) of the National Public Officers, etc. Mutual Aid Association Act and avoidance under Article 72, item (ii) of the Bankruptcy Act

Case of unjust enrichment

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Judgment of August 8, 1988

A salary payment body's act of deducting the amount equivalent to an outstanding loan from the salary of a national public employee, who is a member of Association D, and paying the deducted amount to the aforementioned association under Article 101, paragraph (2) of the National Public Officers, etc. Mutual Aid Association Act becomes subject to avoidance under Article 72, item (ii) of the Bankruptcy Act.

Article 101, paragraph (2) of the National Public Officers, etc. Mutual Aid Association Act and Article 72, item (ii) of the Bankruptcy Act



National Public Officers, etc. Mutual Aid Association Act,Article 101, paragraph (2)

(2) Where there is any amount other than premium which a member of an association (including a person who was a member of the association; hereinafter the same applies in this Article) should pay to the association or any amount of premium which was not paid through deduction pursuant to the provisions of the preceding paragraph, a salary payment body of the member that pays a reward or any other salary (including retirement allowance under the Act on National Public Officers' Retirement Allowance (Act No. 182 of 1953) or allowance equivalent thereto; hereinafter the same applies in this paragraph and the following paragraph) must deduct the amount equivalent to such amount from the reward or other salary of the member and pay it to the association in lieu of the member.



Bankruptcy Act,Article 72, item (ii)

The following acts may be avoided in the interest of the bankruptcy estate:

(ii) an act concerning the provision of security or extinguishment of debt and other acts that would prejudice any bankruptcy creditor conducted by a bankrupt after suspension of payments or filing of a petition for bankruptcy; provided, however, that this applies only where a person who has benefited from said act knew, at the time of the act, the fact that the suspension of payments or filing of a petition for bankruptcy had taken place;

The judgment in prior instance is quashed.

This case is remanded to the Tokyo High Court.

Reasons for a final appeal stated by the appellant

I. The facts lawfully determined by the court of prior instance are as follows.

1. E worked for University F as an employee of the Ministry of Education, Science, Sports and Culture, but E filed a petition for personal bankruptcy with the Tokyo District Court on March 29, 1986, and retired from the university on March 31, 1986.

On March 31, 1986, E submitted to the appellee (branch chief of University F) a written commitment that promises the preferred payment of an outstanding loan debt of 5,100,364 yen in total to the appellee from E's retirement allowance and also submitted to the State (disbursing official of University F) a written request for deduction that requests payment of the aforementioned debt to the appellee from E's retirement allowance, respectively.

2. The appellee had the aforementioned loan claim. On April 1, 1986, when paying E's retirement allowance of 7,394,280 yen, the disbursing official of University F, which is a salary payment body for E, made a payment of 5,100,364 yen to the appellee, in lieu of E, out of the aforementioned retirement allowance under Article 101, paragraph (2) of the National Public Officers, etc. Mutual Aid Association Act (hereinafter referred to as the "National Mutual Aid Act") (hereinafter this act of payment is referred to as the "Payment").

3. On April 15, 1986, the Tokyo District Court made an adjudication of bankruptcy regarding E and appointed the appellant as a bankruptcy trustee.

II. Based on the aforementioned facts and for the following reasons, the court of prior instance determined that the Payment, which the State (disbursing official of University F) made in lieu of the appellee, does not become subject to avoidance under Article 72, item (ii) of the Bankruptcy Act and rendered a judgment that dismissed the appeal on the grounds that the judgment in first instance that dismissed the appellant's claim is legitimate.

1. Article 101, paragraph (2) of the National Mutual Aid Act promotes associations' collection of claims and securing of financial resources by providing as follows: where there is any outstanding amount, etc. of money which Association D loaned to a member, a salary payment body of the member that pays a reward or any other salary (including retirement allowance) must deduct the amount equivalent to the outstanding amount, etc. from the reward or other salary and pay it to the association in lieu of the member. The aforementioned payment is made under the aforementioned provisions of law irrespective of the member's intention, and there is no room for the salary payment body to choose other settlement methods. In this manner, the aforementioned payment is the salary payment body's act of performing a legal obligation for itself on its own responsibility, and therefore, it cannot be considered as an act committed by a bankrupt, who is the member. In light of the purpose of establishment of the avoidance system under the Bankruptcy Act, it cannot also be considered to fall under an act that should be equated with the bankrupt's act.

2. Before the State (disbursing official of University F) made the Payment to the appellee, E submitted the aforementioned written commitment and written request for deduction, respectively. However, submission of the aforementioned documents is nothing more than de facto handling for the convenience, etc. of the member, and the State must adopt the aforementioned settlement method even without submission of the aforementioned documents. Therefore, the Payment cannot be considered as an act committed by E or an act that should be equated therewith based on the mere fact of submission of these documents.

3. As the amount of the Payment is within the range of three-quarters of the retirement allowance after deduction at source, seizure of the amount is prohibited pursuant to Article 152, paragraph (2) of the Civil Execution Act, and the amount was one that should become E's free assets. Therefore, the Payment is an act that is not subject to the aforementioned avoidance from this perspective as well.

III. However, the aforementioned determination of the court of prior instance cannot be accepted for the following reasons.

It is reasonable to consider that the act of deducting the amount equivalent to an outstanding loan of a member of Association D (including a person who was a member of the association; the same applies hereinafter) from a reward or any other salary (including retirement allowance under the Act on National Public Officers' Retirement Allowance (Act No. 182 of 1953) or allowance equivalent thereto) of the member and paying the deducted amount to the association in lieu of the member when paying the reward or other salary, which was committed by the salary payment body of the member, becomes subject to avoidance referred to in Article 72, item (ii) of the Bankruptcy Act if the member receives an adjudication of bankruptcy. The provisions of Article 101, paragraph (2) of the National Mutual Aid Act were established just for the purpose of collecting loans, etc. from members without fail, thereby securing the financial resources of associations, and the aforementioned payment method is provided by law in consideration of the relationship with the principle of direct payment of remuneration and the principle of full payment (see the main clause of Article 9 of the Act on Remuneration of Officials in the Regular Service and Article 1-2 of the Rules of the National Personnel Authority No. 917). However, in light of the fact that there is no provision stipulating that the aforementioned payment is given priority over other claims and that Article 101, paragraph (2) of the National Mutual Aid Act provides that a salary payment body must make a payment to the relevant association "in lieu of the member," the same provisions are nothing more than those stipulating that a salary payment body acts for a member of an association in payment of the member's debt to the association and cannot be interpreted as providing that the association may receive payment of loan claims on the member in priority to other general bankruptcy claims in terms of the bankruptcy proceedings. The fact that the Payment was made based on the effect of the aforementioned provisions of law also does not preclude the aforementioned interpretation.

Moreover, a retirement allowance claim is extinguished through payment of the retirement allowance to a retired person, and Article 152, paragraph (2) of the Civil Execution Act, which provides prohibition of seizure of a claim, does not apply to the amount already paid. Therefore, where the aforementioned retired person receives an adjudication of bankruptcy thereafter, the amount equivalent to the aforementioned retirement allowance should be considered to constitute a bankruptcy estate, and it is reasonable to consider that where a bankrupt receives an adjudication of bankruptcy after paying a debt to a specific creditor with the aforementioned retirement allowance, the payment can become subject to avoidance referred to in Article 72, item (ii) of the Bankruptcy Act even if the amount of the payment is within the range of three-quarters of the retirement allowance.

Therefore, the determination of the court of prior instance based on opinions different from those described above that the Payment made by the State to the appellee does not become subject to avoidance under Article 72, item (ii) of the Bankruptcy Act contains illegality of the erroneous interpretation and application of laws and regulations, and the aforementioned illegality obviously affects the conclusion of the judgment in prior instance. The appellant's arguments of illegality in this regard are well-grounded, and the judgment of prior instance should inevitably be quashed. It is reasonable to remand this case to the court of prior instance to be further examined in relation to whether the appellee knew the fact of E's suspension of payment or filing of a petition for personal bankruptcy as of the time of making the Payment.

Accordingly, in accordance with Article 407 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.

Justice OHORI Seiichi

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice YOTSUYA Iwao

Justice HASHIMOTO Shirohei