1990.07.19

1987 (O) 1083

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 local public employee, who is a member of Association D, and paying the deducted amount to the aforementioned association under Article 115, paragraph (2) of the Local Public Officers, etc. Mutual Aid Association Act and avoidance under Article 72, item (ii) of the Bankruptcy Act

Case of return of money based on avoidance of payment of a debt

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Nagoya High Court, Kanazawa Branch, Judgment of June 24, 1987

A salary payment body's act of deducting the amount equivalent to an outstanding loan from the salary of a local public employee, who is a member of Association D, and paying the deducted amount to the aforementioned association under Article 115, paragraph (2) of the Local Public Officers, etc. Mutual Aid Association Act becomes subject to avoidance under Article 72, item (ii) of the Bankruptcy Act.

Articles 115, paragraph (2) of the Local Public Officers, etc. Mutual Aid Association Act and Article 72, item (ii) of the Bankruptcy Act



Local Public Officers, etc. Mutual Aid Association Act,Articles 115, paragraph (2)

(2) Where there is any amount other than the premium that 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 that was not paid through deduction pursuant to the provisions of the preceding paragraph, a salary payment body of the member that pays a compensation or any other salary (including retirement allowance provided in Article 204, paragraph (2) of the Local Autonomy Act or allowance equivalent thereto; hereinafter the same applies in this Article) must deduct the amount equivalent to such amount from the compensation 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.

The appeal to the court of second instance filed by the appellee of final appeal is dismissed.

The costs of the appeal to the court of second instance and the final appeal shall be borne by the appellee.

Reasons for a final appeal stated by the appellant

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

1. F, who was a teacher of High School E, filed a petition for personal bankruptcy with the Kanazawa District Court on June 3, 1985, and retired from the high school on June 4, 1985.

2. As the appellee had a loan claim of 6,822,672 yen in total regarding F, who was a member of the appellee, as of the aforementioned retirement, when F's salary payment body paid F's retirement allowance of 4,207,236 yen on June 11, 1985, it paid the full amount of the retirement allowance to the appellee, in lieu of F, as payment of the aforementioned loan debt under Article 115, paragraph (2) of the Local Public Officers, etc. Mutual Aid Association Act (hereinafter referred to as the "Local Mutual Act") (hereinafter this act of payment is referred to as the "Payment").

3. As of the time of making the Payment, the appellee knew the fact that F had filed a petition for bankruptcy.

4. On October 3, 1985, the Kanazawa District Court made an adjudication of bankruptcy of F, and the appellant was appointed as a bankruptcy trustee.

II. In this case, the appellant avoided the act of payment through the Payment to the extent of 1,051,809 yen, which was equivalent to one-quarter of the retirement allowance, pursuant to Article 72, item (ii) of the Bankruptcy Act and demanded the appellee pay the amount. The court of prior instance determined for the following reasons that the Payment does not become subject to avoidance under Article 72, item (ii) of the Bankruptcy Act and revoked and dismissed the judgment in first instance that upheld the appellant's claim.

1. An act committed by a pure third party without the aid of a bankrupt cannot be avoided pursuant to the same item even if it causes a change to the bankrupt's property.

2. As Article 115, paragraph (2) of the Local Mutual Act applies irrespective of whether or not a member gives individual consent, it is appropriate to consider that a payment made by a salary payment body to a mutual aid association under the same paragraph is based on the effect of the aforementioned provisions rather than based on the member's intention.

3. Even if F gave consent to the aforementioned debt settlement method, the consent was given as of the time of receiving the loan in question. Therefore, the aforementioned consent cannot become subject to avoidance under Article 72, item (ii) of the Bankruptcy Act.

4. There is no other fact that F colluded with or aided the salary payment body after F filed a petition for bankruptcy.

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 the amount of a loan of a member (including a person who was a member of the association; the same applies hereinafter) of Association D (hereinafter referred to as the "Association") from the member's salary (including retirement allowance) and paying the deducted amount to the Association in lieu of the member when paying the 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 115, paragraph (2) of the Local Mutual 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 Article 25, paragraph (2) of the Local Public Service Act). In light of the fact that there is no provision stipulating that the aforementioned payment is given priority over other claims and the text of Article 115, paragraph (2) of the Local Mutual Act providing that a salary payment body must make a payment to the association "in lieu of the member," this payment is nothing more than the act of acting for the member in payment of the member's debt to the association, and the same paragraph 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 provisions of Article 115, paragraph (2) of the Local Mutual Act also does not preclude the aforementioned interpretation.

Therefore, the determination of the court of prior instance based on opinions different from those described above that the Payment made 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 are well-grounded, and the judgment of prior instance should be quashed. Based on the aforementioned facts of this case, the claim made by the appellant in the principal action based on the exercise of the right of avoidance is well-grounded, and the judgment in first instance that upheld the claim is reasonable. The appeal to the court of second instance filed by the appellee should be dismissed.

Accordingly, in accordance with Articles 408, 396, 384, 96, and 89 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.

Justice YOTSUYA Iwao

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice OHORI Seiichi

Justice HASHIMOTO Shirohei