Open Decision Ledger · Rehabilitation & bankruptcy
Limits on continuation of avoidance lawsuits and contractual termination upon ex officio declaration of bankruptcy after the closing of rehabilitation proceedings
Translated from the Korean original. Read the Korean
Supreme Court, May 29, 2015, 2012Da87751 (judgment)
Case name: 부인의청구를인용하는결정에대한이의
Official text on the National Law Information Center
Question
If, after the approval of a rehabilitation plan, a decision closing the rehabilitation proceedings becomes final and the case transitions to bankruptcy proceedings through an ex officio declaration of bankruptcy, does a lawsuit brought in exercise of the right of avoidance terminate? Also, may a contractual termination right be exercised even after the continuing contractual relationship has ceased to exist?
Holding
If the case transitions to bankruptcy proceedings through an ex officio declaration of bankruptcy, the bankruptcy trustee may continue the administrator's avoidance lawsuit, and that lawsuit is not terminated. Since a termination by a contractual termination right is recognized only for contracts that give rise to a continuing creditor-debtor relationship, once the continuing relationship has ceased to exist under the ancillary agreement and performance of the obligations has been completed, termination is no longer possible.
Summary of the holding, verbatim
파산관재인은 종전의 회생절차에서 관리인이 수행 중이던 부인권 행사에 기한 소송절차를 수계할 수 있고, 이러한 경우 부인권 행사에 기한 소송은 종료되지 않는다.
Unofficial English translation
The bankruptcy trustee may succeed to the litigation proceedings based on the exercise of the right of avoidance that the administrator was conducting in the preceding rehabilitation proceedings, and in such case, the litigation based on the exercise of the right of avoidance is not terminated.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
위와 같은 해지가 인정되는 것은 계속적 채권관계를 발생시키는 계약에 한한다.
Unofficial English translation
Such termination is recognized only in contracts that give rise to continuing creditor-debtor relationships.
Factors
- 회생계획인가가 있은 후 회생절차폐지의 결정이 확정되더라도
- 채무자회생법 제6조 제1항에 의한 직권 파산선고에 의하여 파산절차로 이행된 때에는
- 약정에서 정한 요건을 갖추어 계속적 계약을 해지함으로써 장래에 향하여 효력을 소멸시킬 수 있으나
- 계속적 채권관계를 발생시키는 계약에 한한다
Unofficial English translation
• Even where a decision closing the rehabilitation proceedings has become final after the approval of a rehabilitation plan,
• when the case transitions to bankruptcy proceedings by a declaration of bankruptcy ex officio under Article 6, paragraph (1) of the Debtor Rehabilitation and Bankruptcy Act,
• by terminating the continuing contract upon satisfying the requirements prescribed in the stipulation, its effect may be extinguished for the future, but
• only contracts that give rise to continuing creditor-debtor relationships
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2014. 4. 24. 선고 2011다101544, 101551 판결
Unofficial English translation
Supreme Court Decision 2011Da101544, 101551 decided April 24, 2014
Decisions referred to
[2] 대법원 2014. 4. 24. 선고 2011다101544, 101551 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
May an insolvency termination clause, which designates the filing of an application for commencement of rehabilitation proceedings and the like as grounds for termination, be exercised as is in rehabilitation proceedings while the continuing contractual relationship still subsists?
This reading will be re-examined if a new Supreme Court ruling is handed down on the related bankruptcy provision of Article 6 of the Debtor Rehabilitation and Bankruptcy Act or on the effect of insolvency termination clauses.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
A comparison with an independent reading by another AI line (GPT-6 Astra), which read only the original text without seeing the first reading, showed that 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 “May an insolvency termination clause, which designates the filing of an application for commencement of rehabilitation proceedings and the like as grounds for termination, be exercised as is in rehabilitation proceedings while the continuing contractual relationship still subsists?” vs Independent “Can an avoidance lawsuit be continued even where, after the closing of rehabilitation proceedings, a declaration of bankruptcy is made upon a separate application rather than by an ex officio declaration of bankruptcy?”
The first reading asks about the possibility of exercising the insolvency termination clause, while the independent reading asks whether an avoidance lawsuit can be continued where the declaration of bankruptcy follows a separate application.
파산관재인은 종전의 회생절차에서 관리인이 수행 중이던 부인권 행사에 기한 소송절차를 수계할 수 있고, 이러한 경우 부인권 행사에 기한 소송은 종료되지 않는다.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, citing the first instance judgment, held that because the debtor company transferred the ownership and use rights of the molds and waived future royalty claims, gaining no economic benefit other than the mold price of KRW 25 million, the final ancillary agreement concluded within 6 months prior to the filing of the application for commencement of rehabilitation proceedings was a gratuitous act or an act that may be equated therewith and therefore subject to avoidance, and rejected the assertion of termination on the ground that the plaintiff's termination dated July 16, 2010 was of no effect.
Supreme Court standard: The Supreme Court held that, since the bankruptcy trustee had continued the litigation proceedings, the lawsuit had not been terminated. As to the assertion of termination, although it stated that the reasoning of the court below was inappropriate, it upheld the conclusion on the ground that, by the final ancillary agreement, the continuing creditor-debtor relationship had ceased to exist and performance of those obligations had been entirely completed, and therefore termination was not possible. The Supreme Court also accepted the court below's holding on gratuitous avoidance and dismissed the final appeal.
Distinguishing conditions
- Where the decision closing the rehabilitation proceedings has become final but the court has made no ex officio declaration of bankruptcy and the case has not transitioned to bankruptcy proceedings
- Where a continuing creditor-debtor relationship still subsisted between the parties at the time the notice of termination was given
- Where the ancillary agreement did no more than modify the conditions without extinguishing the pre-existing continuing contract
Record verification notes
Before asserting the same conclusion, it must first be checked whether, at the time the notice of termination was given, the continuing contractual relationship had already ceased to exist and the resulting performance of obligations had been completed, and whether the declaration of bankruptcy was made pursuant to Article 6, paragraph (1) of the Debtor Rehabilitation and Bankruptcy Act.
From the official text
Points at issue
[1] 채무자에 대하여 회생계획인가가 있은 후 회생절차폐지의 결정이 확정되었는데 채무자 회생 및 파산에 관한 법률 제6조 제1항에 의한 직권 파산선고에 의하여 파산절차로 이행된 경우, 파산관재인이 종전의 회생절차에서 관리인이 수행 중이던 부인권 행사에 기한 소송절차를 수계할 수 있는지 여부(적극) 및 이 경우 부인권 행사에 기한 소송이 종료되는지 여부(소극) [2] 계속적 계약관계에서 당사자의 일방 또는 쌍방이 해지권을 유보하는 약정을 한 경우, 약정에서 정한 요건을 갖추어 계속적 계약을 해지할 수 있는지 여부(적극) 및 위 해지는 계속적 채권관계를 발생시키는 계약에 한하여 인정되는지 여부(적극)
Unofficial English translation
[1] Where, after the approval of a rehabilitation plan for a debtor, a decision closing the rehabilitation proceedings has become final and the case transitions to bankruptcy proceedings by a declaration of bankruptcy ex officio under Article 6, paragraph (1) of the Debtor Rehabilitation and Bankruptcy Act, whether the bankruptcy trustee may succeed to the litigation proceedings based on the exercise of the right of avoidance that the administrator was conducting in the preceding rehabilitation proceedings (affirmative), and whether, in such case, the litigation based on the exercise of the right of avoidance is terminated (negative) [2] Where, in a continuing contractual relationship, one or both of the parties have stipulated the reservation of a right of termination, whether the continuing contract may be terminated by satisfying the requirements prescribed in the stipulation (affirmative), and whether such termination is recognized only in contracts that give rise to continuing creditor-debtor relationships (affirmative)
Summary of the holding
[1] 채무자 회생 및 파산에 관한 법률(이하 ‘채무자회생법’이라고 한다) 제6조 제1항, 제6항의 내용과 취지에 비추어 보면, 채무자에 대하여 회생계획인가가 있은 후 회생절차폐지의 결정이 확정되더라도 채무자회생법 제6조 제1항에 의한 직권 파산선고에 의하여 파산절차로 이행된 때에는, 채무자회생법 제6조 제6항에 의하여 파산관재인은 종전의 회생절차에서 관리인이 수행 중이던 부인권 행사에 기한 소송절차를 수계할 수 있고, 이러한 경우 부인권 행사에 기한 소송은 종료되지 않는다. [2] 계속적 계약관계에서 당사자의 일방 또는 쌍방이 해지권을 유보하는 약정을 한 경우, 약정에서 정한 요건을 갖추어 계속적 계약을 해지함으로써 장래에 향하여 효력을 소멸시킬 수 있으나, 위와 같은 해지가 인정되는 것은 계속적 채권관계를 발생시키는 계약에 한한다.
Order
상고를 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the plaintiff.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제6조 제1항, 제6항 [2] 민법 제543조
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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