Open Decision Ledger · Rehabilitation & bankruptcy
Whether an act by a reorganization company, in its capacity as a joint and several surety, of providing security to a creditor without consideration constitutes a gratuitous act
Translated from the Korean original. Read the Korean
Supreme Court, Mar. 26, 2002, 2000Da67075 (judgment)
Case name: 정리담보권확정
Official text on the National Law Information Center
Question
Where a reorganization company already bound by a joint and several surety obligation provided security to a creditor without monetary consideration from the principal debtor and thereby obtained a deferment of the due date of the surety obligation, does the act still constitute a gratuitous act under Article 78, paragraph (1), subparagraph 4 of the Company Reorganization Act?
Holding
A gratuitous act is any act by which the company, without consideration, decreases its assets or increases its liabilities. The Supreme Court held that an act by a reorganization company, as a joint and several surety, of transferring golf club memberships and creating maximum amount mortgages without consideration within six months prior to the date of dishonor was a gratuitous act, and that the existence of the prior surety obligation or a brief deferment of the due date did not warrant a different view.
Summary of the holding, verbatim
정리회사가 위 담보제공 당시 주채무자를 위하여 연대보증채무를 부담하고 있었다거나 위 담보제공으로 주채무자의 대출금채무와 함께 정리회사의 연대보증채무도 잠시 기한의 유예를 받았다고 하여 달리 볼 것이 아니다.
Unofficial English translation
The fact that the reorganization company had assumed joint and several surety obligations for the principal debtor at the time of the provision of the aforesaid security, or that, by reason of the provision of the aforesaid security, not only the principal debtor's loan obligations but also the reorganization company's joint and several surety obligations were granted a temporary extension of time, cannot be regarded as leading to a different conclusion.
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
회사정리법 제78조 제1항 제4호 소정의 무상행위에 해당한다고 할 것이고
Unofficial English translation
may be regarded as a gratuitous act as provided in Article 78, paragraph (1), subparagraph 4 of the Corporate Reorganization Act, and
Factors
- 회사가 대가를 받지 않고 적극재산을 감소시키거나
- 소극재산 즉 채무를 증가시키는 일체의 행위
- 주채무자로부터 아무런 금전적 대가도 받지 아니하고
- 부도일 전 6월 내에
Unofficial English translation
• The company reduces its positive assets without receiving consideration, or
• any act that increases its negative assets, that is, its liabilities
• without receiving any monetary consideration whatsoever from the principal debtor,
• within 6 months prior to the date of dishonor
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
None listed
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the surety company obtained indirect economic benefits from the principal debtor or an affiliated company as consideration for providing security, to what extent must the consideration be such that the act is regarded as supported by consideration and thus falls outside gratuitous acts?
When a subsequent decision is handed down on the interpretation of the corresponding provision of the Debtor Rehabilitation and Bankruptcy Act, which succeeded the provision of the Company Reorganization Act denying gratuitous acts, we will re-examine this reading.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, while the readings diverged on the eighth axis (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the surety company obtained indirect economic benefits from the principal debtor or an affiliated company as consideration for providing security, to what extent must the consideration be such that the act is regarded as supported by consideration and thus falls outside gratuitous acts?” vs Independent “Does the act constitute a gratuitous act even where, as consideration for providing security, the company obtained a long-term deferment of the due date for repayment or a partial exemption of the debt?”
The first reading asks about indirect economic benefits received from the principal debtor or an affiliated company, while the independent reading asks whether a long-term deferment of the due date for repayment or a partial exemption of the debt can constitute consideration.
정리회사가 위 담보제공 당시 주채무자를 위하여 연대보증채무를 부담하고 있었다거나 위 담보제공으로 주채무자의 대출금채무와 함께 정리회사의 연대보증채무도 잠시 기한의 유예를 받았다고 하여 달리 볼 것이 아니다.Raw 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 regarded as a gratuitous act the reorganization company's transfer of 25 golf club memberships and its creation of maximum amount mortgages on each of the real properties, without consideration, within six months prior to the date of dishonor, and also denied as a gratuitous act the joint and several surety portion of the note trading agreement of August 30, 1997. It rejected the plaintiff's argument that the reorganization company, an affiliated company, was the substantive debtor, on the ground that there was no Evidence of direct and concrete economic benefit; and, holding that the refinancing was a quasi-consumption loan and that the portion merely extending the due date for repayment of the existing debt was not a gratuitous act, it granted confirmation of the reorganization claim only in the amount of KRW 1,265,602,739.
Supreme Court standard: The Supreme Court confirmed that a gratuitous act means any act by which the company, without consideration, decreases its assets or increases its liabilities, and upheld in full the holding of the court below that an act of providing security constitutes a gratuitous act even where the prior joint and several surety obligation existed and only a brief deferment of the due date was granted. It also found that the rejection of the affiliated company argument and the determination as to the refinancing were proper, and dismissed the final appeals of both the plaintiff and the defendant.
Distinguishing conditions
- Where it is proved that the surety company received direct and concrete economic benefits from the principal debtor or others as consideration for providing security
- Where the act in question, such as the provision of security, took place outside the period of six months prior to the date of dishonor
- Where, as in the portion that merely extended the due date for repayment of the existing debt through a formal refinancing without any new loan, the debt continued while retaining its identity
Record verification notes
Before asserting the same conclusion, one must check whether the security was provided within six months prior to the date of dishonor, and whether the Records contain material showing that the reorganization company received, from the principal debtor or an affiliated company, consideration corresponding to the provision of security.
From the official text
Points at issue
정리회사가 연대보증 후 주채무자로부터 아무런 금전적 대가도 받지 않고 채권자에게 담보제공행위를 한 경우, 그로 인해 정리회사의 연대보증채무도 잠시 기한의 유예를 받았다고 하더라도 회사정리법 제78조 제1항 제4호 소정의 무상행위에 해당하는지 여부(적극)
Unofficial English translation
Whether, where a reorganization company, after assuming joint and several surety obligations, provided security to the creditor without receiving any monetary consideration from the principal debtor, such act falls under a gratuitous act as provided in Article 78, paragraph (1), subparagraph 4 of the Corporate Reorganization Act, even though, by reason thereof, the reorganization company's joint and several surety obligations were also granted a temporary extension of time (affirmative)
Summary of the holding
회사정리법 제78조 제1항 제4호의 무상행위라고 함은 회사가 대가를 받지 않고 적극재산을 감소시키거나, 소극재산 즉 채무를 증가시키는 일체의 행위를 의미하는바, 정리회사가 어음거래약정에 따른 주채무자의 연대보증인으로서 주채무자로부터 아무런 금전적 대가도 받지 아니하고 부도일 전 6월 내에 채권자에게 그 소유의 골프회원권을 양도하고, 그 소유의 각 부동산에 채권자 앞으로 각 근저당권을 설정하여 준 행위는 회사정리법 제78조 제1항 제4호 소정의 무상행위에 해당한다고 할 것이고, 정리회사가 위 담보제공 당시 주채무자를 위하여 연대보증채무를 부담하고 있었다거나 위 담보제공으로 주채무자의 대출금채무와 함께 정리회사의 연대보증채무도 잠시 기한의 유예를 받았다고 하여 달리 볼 것이 아니다.
Order
상고를 모두 기각한다. 상고비용은 각자의 부담으로 한다.
Unofficial English translation
All appeals are dismissed. Each party shall bear the costs of the final appeal.
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.
Back to the ledger