Date of the judgment |
2004.07.16 |
Case number |
2001(Ju)No. 1797 |
Reporter |
Minshu Vol. 58, No. 5 |
Title |
Judgment concerning whether or not the avoiding power under Article 72, sub-para. 2 of the Bankruptcy Law may be exercised against the assignment of receivables made based on a contract of assignment of receivables, which is subject to the condition precedent that the assignment shall not take place until the assignor suspends payment or a petition for bankruptcy of the assignor is filed. |
Case name |
Case to seek exercise of the avoiding power |
Result |
Judgment of the Second Petty Bench, dismissed |
Court of the Second Instance |
Nagoya High Court, Judgment of August 10, 2001 |
Summary of the judgment |
The avoiding power under Article 72, sub-para. 2 of the Bankruptcy Law may be exercised against the assignment of receivables made based on a contract on assignment of receivables, which is subject to the condition that the assignment shall not take place until the assignor suspends payment or a petition for bankruptcy of the assignor is filed. |
References |
Article 72, sub-para. 2 of the Bankruptcy Law, and Article 127, para. 1 and Article 466 of the Civil Code Article 72, sub-para. 2 of the Bankruptcy Law The following acts may be avoided in favor of the bankruptcy estate. (2) Any acts relating to furnishing of securities or extinction of obligations and any other acts prejudicial to bankruptcy creditors, which are conducted by the bankrupt after the bankrupt has suspended payment or a petition for bankruptcy has been filed; however, this shall not apply where any person who has benefited from the act did not know, at the time of the act, that the bankrupt had suspended payment or a petition for bankruptcy had been filed. Article 127, para. 1 of the Civil Code A juristic act subject to a condition precedent becomes effective upon the fulfillment of the condition. Article 466 of the Civil Code A claim may be assigned, unless its nature does not so allow. |
Main text of the judgment |
The jokoku appeal shall be dismissed. The jokoku appellant shall bear the whole cost of the jokoku appeal. |
Reasons |
Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorney for jokoku appellant KUSANO Katsuhiko and other attorneys 1. The outline of the facts legally determined by the judgment of the second instance is as follows. (1) Company limited by share A (hereinafter referred to as the "bankrupt company") is a company engaging in selling and processing steel products. In February 1999, the bankrupt company concluded a contract with the jokoku appellant under which the bankrupt company should assign, as security for all debts and obligations that the bankrupt company had to the jokoku appellant, overall receivables from particular debtors of the bankrupt company, which existed at that time and would arise in the future, on the condition that the assignment should not take place until certain events occurred, e.g. a petition for bankruptcy of the bankrupt company was filed, the bankrupt company suspended payment, or the bankrupt company was given a notice of dishonored note or check (this contract shall hereinafter be referred to as the "Contract of Assignment of Receivables"). (2) On March 31, 2000, the bankrupt company's promissory note was dishonored, and the company suspended payment. (3) On April 3, 2000, and thereafter, the bankrupt company gave notice of assignment of receivables by instruments with dates of notarial effect. (4) On June 16, 2000, the bankrupt company was declared bankrupt by the Nagoya District Court, and the jokoku appellee was appointed as bankruptcy administrator. 2. In the principal suit, the jokoku appellee seeks to exercise the avoiding power against the assignment of receivables under the Contract of Assignment of Receivables in accordance with Article 72, sub-para. 1 or 2 of the Bankruptcy Law and against the notice of assignment of receivables in accordance with Article 74, para. 1 of the said law, and thereby requires [1] the jokoku appellant to pay money, which has been received by the jokoku appellant as payment for the receivables from the debtors, as restitution of unjust enrichment, [2] the court to declare that the receivables for which the debtors withhold payment belong to the jokoku appellee, and [3] the court to declare that the right to claim refund of money that has been deposited by the debtors as payment for the receivables belongs to the jokoku appellee. 3. Article 72, sub-para. 2 of the Bankruptcy Law provides that any acts relating to furnishing of securities or extinction of obligations and any other acts prejudicial to bankruptcy creditors, which are conducted by the bankrupt after the bankrupt has suspended payment or a petition for bankruptcy has been filed (hereinafter referred to as the "suspension of payment, etc."), may be avoided. The purport of this provision is to regard the time after the occurrence of the suspension of payment, etc. on the part of the debtor as time of risk to the debtor's property, and allow avoidance of all acts mentioned above, including furnishing of security, which are conducted by the debtor after the time of risk has come, thereby ensuring equality between creditors and enriching the bankruptcy estate. A contract of assignment of receivables, which is based on the condition precedent that the assignment shall not take place until the suspension of payment, etc. occurs on the part of the debtor, is concluded before the time of risk has come. The parties to such contract intend and aim to ensure, by stipulating that the assignment will not become effective until the time of risk comes or the suspension of payment, etc. occurs on the part of the debtor, that the receivables that have been a part of the debtor's property will be attributed to the creditor once the time of risk comes, thereby preventing the receivables from becoming a part of the bankruptcy estate. Contract of Assignment of Receivables, in light of the contents and purpose thereof, violates such purport of the provisions of Article 72, sub-para, 2 of the Bankruptcy Law and harms the effectiveness of the provisions. Considering the contents of the contract, it is reasonable to construe that the assignment of receivables under the Contract should be deemed to be, in effect, the same as an assignment of receivables conducted after the time of risk has come or the suspension of payment, etc. has occurred on the part of the debtor, and therefore it may be avoided in accordance with the provisions. Consequently, the judgment of the second instance, which allowed the exercise of the avoiding power against the assignment of receivables under the Contract of Assignment of Receivables and upheld the jokoku appellee's claims mentioned above, can be accepted as going along with the above-mentioned reasoning. Therefore, without needing to make judgment on other points, the jokoku appellant's argument cannot be accepted. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices. |
Presiding Judge |
Justice KITAGAWA Hiroharu Justice FUKUDA Hiroshi Justice TAKII Shigeo Justice TSUNO Osamu |
| (This translation is provisional and subject to revision.) |