Open Decision Ledger · Rehabilitation & bankruptcy
Avoidance of a Gratuitous Transfer of the Debtor's Essentially Sole Asset for the Purpose of Evading Compulsory Execution, and Whether the Amount of the Returned Collected Money Is Deducted
Translated from the Korean original. Read the Korean
Supreme Court, Apr. 11, 2013, 2012Da211 (judgment)
Case name: 사해행위취소
Official text on the National Law Information Center
Question
Where the debtor, in order to evade compulsory execution, gratuitously transfers to a third party what is in substance the debtor's only asset, does that act constitute a fraudulent act as against bankruptcy creditors, and must the money that the third party gave to the debtor upon collecting the assigned claim be excluded from the scope of restoration to the original state or restitution of value?
Holding
Such a gratuitous transfer constitutes a fraudulent act in relation to the other bankruptcy creditors. Even if the third party collected the assigned claim and gave that money to the debtor, that amount is not deducted from the scope of restoration or restitution of value.
Summary of the holding, verbatim
채무자가 강제집행을 회피할 목적으로 자기의 사실상 유일한 재산을 제3자에게 무상으로 양도한 행위는 다른 파산채권자들과의 관계에서 사해행위가 되고
Unofficial English translation
An act whereby a debtor, for the purpose of evading compulsory execution, transfers gratuitously to a third party his de facto only property constitutes a fraudulent act in relation to other bankruptcy creditors and
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
다른 파산채권자들과의 관계에서 사해행위가 되고
Unofficial English translation
in relation to other bankruptcy creditors, constitutes a fraudulent act and
Factors
- 강제집행을 회피할 목적으로
- 자기의 사실상 유일한 재산을
- 제3자에게 무상으로 양도한 행위
- 그 금액 상당을 원상회복이나 가액반환의 범위에서 공제할 것은 아니다
Unofficial English translation
• for the purpose of evading compulsory execution
• his de facto only property
• an act of transferring gratuitously to a third party
• the amount equivalent thereto is not to be deducted from the scope of restoration to the original state or return of value
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
If the circumstance that the third party returned the collected money to the debtor is not deducted from the scope of restoration, by what means may that third party recover that money from, or obtain settlement from, the debtor or the bankruptcy estate?
This reading is to be re-examined if the avoidance requirements under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act or the provisions governing the effects of the exercise of the right of avoidance are amended, or if a subsequent Supreme Court decision addressing the relationship between the return of collected money and the scope of restoration is rendered.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading by another AI model (GPT-6 Astra), which read only the original text without seeing the primary reading, 6 of the 8 axes agreed, while the readings diverged on the fourth axis (Form of the test) and the eighth axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
In that the original text contains a conclusion on a particular gratuitous transfer and the payment of collected money, it may be read as existing test applied; in that it generalizes the purpose of evading execution, the sole asset, and the gratuitous transfer, it may be read as elements stated.
채무자가 강제집행을 회피할 목적으로 자기의 사실상 유일한 재산을 제3자에게 무상으로 양도한 행위는 다른 파산채권자들과의 관계에서 사해행위가 되고Axis 8 (Open question and revisit condition): Primary “If the circumstance that the third party returned the collected money to the debtor is not deducted from the scope of restoration, by what means may that third party recover that money from, or obtain settlement from, the debtor or the bankruptcy estate?” vs Independent “Where the assignee did not pay the collected money to the debtor but returned it directly to the bankruptcy estate, is it deducted from the scope of return?”
The primary reading asks about the assignee's separate means of recovery or settlement, whereas the independent reading asks about the deduction where the money was returned directly to the bankruptcy estate.
채무자가 강제집행을 회피할 목적으로 자기의 사실상 유일한 재산을 제3자에게 무상으로 양도한 행위는 다른 파산채권자들과의 관계에서 사해행위가 되고Raw 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 (Seoul High Court, 2009Na13042) regarded the gratuitous transfer by non-party 2 to the defendant, in order to evade the creditors' compulsory execution and despite the absence of any creditor-debtor relationship between them, of the claim in this case, which was virtually the only positive asset, as an act harmful to the bankruptcy creditors. Accordingly, the court below granted the plaintiff's claim in full.
Supreme Court standard: The Supreme Court affirmed the holding of the court below. Finding that it did not depart from the bounds of the principle of free evaluation of evidence, and that there was no error of legal principle, failure to address the issue, or failure to exercise the power of elucidation with regard to the scope of restoration or restitution of value arising from the exercise of the right of avoidance, the Supreme Court dismissed the final appeal.
Distinguishing conditions
- Where the transferred asset is not the debtor's essentially sole asset and sufficient other assets liable to execution remain
- Where the transfer was not gratuitous but was made for valuable consideration, or where a pre-existing creditor-debtor relationship exists between the transferee and the debtor
- Where the debtor's purpose of evading compulsory execution is not recognized
Record verification notes
Before asserting the same conclusion, one must first check whether the collected money that the third party gave to the debtor actually remained as the debtor's assets liable to execution and was incorporated into the bankruptcy estate, and whether the debtor had other positive assets at the time of the transfer.
From the official text
Points at issue
채무자가 강제집행을 회피할 목적으로 자기의 사실상 유일한 재산을 제3자에게 무상으로 양도한 행위가 다른 파산채권자들과의 관계에서 사해행위가 되는지 여부(적극) 및 제3자가 양수채권을 추심하여 그 돈을 채무자에게 준 경우, 그 금액 상당을 원상회복이나 가액반환의 범위에서 공제하여야 하는지 여부(소극)
Unofficial English translation
Whether an act whereby a debtor, for the purpose of evading compulsory execution, transfers gratuitously to a third party his de facto only property constitutes a fraudulent act in relation to other bankruptcy creditors (affirmative), and whether, where the third party collects the assigned claim and gives the money to the debtor, the amount equivalent thereto must be deducted from the scope of restoration to the original state or return of value (negative)
Summary of the holding
채무자가 강제집행을 회피할 목적으로 자기의 사실상 유일한 재산을 제3자에게 무상으로 양도한 행위는 다른 파산채권자들과의 관계에서 사해행위가 되고, 그 제3자가 양수채권을 추심하여 그 돈을 채무자에게 주었다고 하더라도 그 금액 상당을 원상회복이나 가액반환의 범위에서 공제할 것은 아니다.
Order
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The defendant shall bear the costs of the final appeal.
Provisions referred to
채무자 회생 및 파산에 관한 법률 제391조 제1호
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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