Open Decision Ledger · Rehabilitation & bankruptcy
Whether a Reorganization Company's Guarantee of an Affiliate Company's Debt Constitutes a Gratuitous Act Subject to Avoidance as a Gratuitous Act
Translated from the Korean original. Read the Korean
Supreme Court, Mar. 26, 1999, 97Da20755 (judgment)
Case name: 정리채권확정
Official text on the National Law Information Center
Question
Where a reorganization company, without receiving any direct economic benefit, guaranteed the debt of an affiliate company, does that guarantee constitute a gratuitous act subject to avoidance under the Company Reorganization Act?
Holding
A guarantee or provision of security given by a reorganization company for another person without any obligation to do so constitutes a gratuitous act, even if it was the direct cause of the creditors' coming forward, so long as no economic benefit was received as consideration therefor; and it is no different even where the principal debtor is an affiliate company or a family company. The Supreme Court has stated that gratuity is determined on the basis of the reorganization company, and that the mere fact that a company is an affiliate company cannot make the principal debtor's benefit a benefit of the reorganization company.
Summary of the holding, verbatim
정리회사가 의무 없이 타인을 위하여 한 보증 또는 담보의 제공은, 그것이 채권자의 주채무자에 대한 출연의 직접적인 원인이 되는 경우에도 정리회사가 그 대가로서 경제적 이익을 받지 아니하는 한 무상행위에 해당한다고 해석함이 상당하고, 이러한 법리는 주채무자가 소위 계열회사 내지 가족회사라고 하여 달리 볼 것은 아니다.
Unofficial English translation
A guarantee or provision of security made by a company in reorganization for another person without any obligation thereto constitutes a gratuitous act, even where it is the direct cause of the creditor's contribution to the principal debtor, insofar as the company in reorganization does not receive economic benefit as consideration therefor, and it is reasonable to construe it as such, and this legal principle is not to be viewed differently merely because the principal debtor is a so-called affiliated company or family company.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 광주고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Gwangju High Court.
Form of the test
Elements stated Stated in the decision
정리회사가 그 대가로서 경제적 이익을 받지 아니하는 한 무상행위에 해당한다고 해석함이 상당하고
Unofficial English translation
insofar as the company in reorganization does not receive economic benefit as consideration therefor, and it is reasonable to construe it as such
Factors
- 회사가 대가를 받지 않고 적극재산을 감소시키거나, 소극재산 즉 채무를 증가시키는 일체의 행위
- 상대방이 반대급부로서 출연한 대가가 지나치게 근소하여
- 채권자의 주채무자에 대한 출연의 직접적인 원인이 되는 경우에도
- 주채무자가 소위 계열회사 내지 가족회사라고 하여
Unofficial English translation
• any act of the company that decreases its assets without receiving consideration or increases its liabilities, that is, its debts
• where the consideration contributed by the other party in return is excessively slight,
• even where it is the direct cause of the creditor's contribution to the principal debtor,
• merely because the principal debtor is a so-called affiliated company or family company,
Relation to precedent
States a new standard Read from the decision
이러한 법리는 주채무자가 소위 계열회사 내지 가족회사라고 하여 달리 볼 것은 아니다
Unofficial English translation
this legal principle is not to be viewed differently merely because the principal debtor is a so-called affiliated company or family company
Decisions referred to
None listed
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where a reorganization company received a guarantee fee from the affiliate company but the amount is excessively small in comparison with the guarantee risk, what is the criterion for deeming it an onerous act concurrent with the gratuitous act?
If the provisions on the right of avoidance in the rehabilitation proceedings governing avoidance of gratuitous acts are amended, or if a decision construing the gratuitous nature of affiliate company guarantees differently appears, this reading will be re-examined.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with the independent reading of another affiliated AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 7 of the 8 axes matched, and the readings diverged on axis 6 (Relation to precedent).
Axis 6 (Relation to precedent): Primary “States a new standard” vs Independent “Cannot be determined”
Because the original text sets out the criterion for construing a gratuitous act but does not clarify its relation to earlier precedent, the primary reading may be read as setting out a new standard, whereas the independent reading may be read as the relation to precedent being incapable of determination.
이러한 법리는 주채무자가 소위 계열회사 내지 가족회사라고 하여 달리 볼 것은 아니다Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Gwangju High Court, 96Na8504) found the fact that the reorganization company had, within 6 months before the suspension of payments, jointly and severally guaranteed the reimbursement obligation owed by non-party Company 3 to the plaintiff; nevertheless, it held that the two companies were affiliate companies of a group managed by one family, that they shared the same economic destiny through payment guarantees exceeding 20 billion won, and that the guarantee was intended to reduce the disadvantage of performing the guarantee obligations it had assumed to financial institutions and to continue the sale of its products, so that it could not be regarded as having received no economic benefit. Accordingly, the court below rejected the argument for avoidance as a gratuitous act and recognized the plaintiff's reimbursement claim in the amount of 7,136,306,665 won as a reorganization claim.
Supreme Court standard: The Supreme Court held that gratuity is determined in relation to the reorganization company, that the right of reimbursement to be acquired by the reorganization company does not always constitute consideration for the guarantee, and that the mere circumstance that the principal debtor is an affiliate company cannot summarily make its benefit a benefit of the reorganization company. As there was no direct and concrete economic benefit such as the acquisition of a guarantee fee, the guarantee in this Case was a gratuitous act, and the judgment of the court below was reversed and remanded.
Distinguishing conditions
- A case in which the reorganization company received a direct and concrete economic benefit as consideration for the guarantee, such as a guarantee fee
- A case in which the guarantee was given outside the period for avoidance of a gratuitous act, that is, neither after a suspension of payments or the like nor within 6 months before it
- A case in which the reorganization company was under a legal obligation to give the guarantee
Record verification notes
Before asserting avoidance of an affiliate company guarantee as a gratuitous act, it is necessary to check whether the guarantee was given within 6 months before the suspension of payments, whether the reorganization company received direct consideration such as a guarantee fee, and whether it was obliged to give the guarantee.
From the official text
Points at issue
정리회사가 대가로서 직접적인 경제적 이익을 받지 아니한 채 계열회사의 채무에 대한 보증 또는 담보제공을 한 경우, 회사정리법 제78조 제1항 제4호 소정의 부인의 대상인 무상행위에 해당하는지 여부(적극)
Unofficial English translation
Whether a guarantee or provision of security for the debt of an affiliated company by a company in reorganization, without receiving direct economic benefit as consideration therefor, constitutes a gratuitous act subject to avoidance under Article 78 (1) 4 of the Corporate Reorganization Act (affirmative)
Summary of the holding
회사정리는 재정적 궁핍으로 파탄에 직면하였으나 경제적으로 갱생의 가치가 있는 주식회사에 관하여 채권자, 주주 기타의 이해관계인의 이해를 조정하며 그 사업의 정리재건을 목적으로 하는 것이고, 이러한 목적달성의 일환으로 회사정리법 제78조 제1항 제4호는 "회사가 지급의 정지 등이 있은 후 또는 그 전 6월 내에 한 무상행위와 이와 동시하여야 할 유상행위"를 정리절차개시 후 회사재산을 위한 부인의 대상으로 규정하여 감소한 재산과 기업의 수익력을 회복하거나 채권자들 사이의 평등을 도모하고 있는데, 여기에서의 무상행위라 함은 회사가 대가를 받지 않고 적극재산을 감소시키거나, 소극재산 즉 채무를 증가시키는 일체의 행위를 말하고, 이와 동시하여야 할 행위란 상대방이 반대급부로서 출연한 대가가 지나치게 근소하여 사실상 무상행위와 다름없는 경우를 말하는바, 정리회사가 의무 없이 타인을 위하여 한 보증 또는 담보의 제공은, 그것이 채권자의 주채무자에 대한 출연의 직접적인 원인이 되는 경우에도 정리회사가 그 대가로서 경제적 이익을 받지 아니하는 한 무상행위에 해당한다고 해석함이 상당하고, 이러한 법리는 주채무자가 소위 계열회사 내지 가족회사라고 하여 달리 볼 것은 아니다.
Order
원심판결을 파기하고, 사건을 광주고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Gwangju High Court.
Provisions referred to
회사정리법 제78조 제1항 제4호
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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