Open Decision Ledger · Rehabilitation & bankruptcy
Standards for determining the transferee's good faith in intentional avoidance of a preferential act and the weight of awareness of insolvency
Translated from the Korean original. Read the Korean
Supreme Court, Jan. 14, 2016, 2014Da18131 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 부인결정이의
Official text on the National Law Information Center
Question
In intentional avoidance of a preferential act, when determining the transferee's good faith, may the transferee's awareness of the debtor's state of insolvency be taken as the principal ground?
Holding
The right of avoidance may be exercised not only where the debtor is in a state of insolvency at the time of the act, and therefore awareness of the state of insolvency cannot be taken as the principal ground for finding good faith. The Supreme Court held that the transferee's bad faith is presumed, and that it must be examined whether the transferee was aware that being designated as the preferred beneficiary was intended to evade the principle of equal treatment of creditors and would harm other creditors.
Points at issue, verbatim
원심이 담보신탁계약이 특정 채권자에 대한 담보제공행위로서 편파행위에 해당한다고 판단하면서 당시 갑 회사가 채무초과 상태에 있었는지에 대한 병 은행의 인식 여부를 선의 인정의 주된 근거로 삼은 것은 잘못이고
Unofficial English translation
the court below erred in, while finding that the trust agreement for security constituted an act of providing security to a specific creditor and thus a preferential act, taking as the principal ground for recognizing good faith Bank C's awareness of whether Company A was in a state of excess of liabilities at that time, and
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
채권자평등의 원칙을 회피하기 위하여 특정 채권자에게 변제한다는 인식이 필요하다고 할 것이지만, 더 나아가 회생채권자 등에 대한 적극적인 가해의 의사 내지 의욕까지 필요한 것은 아니다
Unofficial English translation
there must be an awareness that payment is being made to a specific creditor for the purpose of evading the principle of equality among creditors; however, it is not necessary to go so far as to require an intent or desire to actively harm rehabilitation creditors, etc.
Factors
- 이른바 편파행위가 포함되는지 여부(적극)
- 편파행위에 대한 고의부인이 인정되기 위하여 필요한 주관적 요건의 내용
- 부인의 대상이 되는 행위 당시 채무자가 채무초과상태에 있어야만 부인권을 행사할 수 있는지 여부(소극)
- 채권자평등의 원칙을 회피하기 위하여 담보신탁계약의 우선수익자로 지정됨으로써 다른 채권자들을 해한다는 인식
Unofficial English translation
• Whether so-called preferential acts are included (affirmative)
• The content of the subjective requirement necessary for the intentional right of avoidance against a preferential act to be recognized
• Whether the right of avoidance may be exercised only if the debtor was in a state of excess of liabilities at the time of the act subject to avoidance (negative)
• Awareness that, by being designated as the preferred beneficiary of the trust agreement for security in order to evade the principle of equality among creditors, other creditors would be harmed
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2006. 6. 15. 선고 2004다46519 판결
Unofficial English translation
Supreme Court Decision 2004Da46519 decided June 15, 2006
Decisions referred to
[1] 대법원 2006. 6. 15. 선고 2004다46519 판결(공2006하, 1314), 대법원 2014. 7. 10. 선고 2014다24112 판결 / [2] 대법원 2005. 11. 10. 선고 2003다271 판결(공2005하, 1925)
Burden of proof
The opposing party Stated in the decision
수익자의 악의는 추정되므로, 수익자 자신이 그 선의에 대한 증명책임을 부담한다
Unofficial English translation
Since the transferee's bad faith is presumed, the transferee itself bears the burden of proof as to its good faith
Open question and revisit condition
Under what circumstances is a customary transaction, in which a financial institution acquires additional collateral in exchange for extending the maturity of an existing loan, distinguished from a preferential act intended to evade the principle of equal treatment of creditors?
If Article 100, paragraph (1), subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act is amended, or if subsequent case law emerges on the subjective requirements for intentional avoidance of a preferential act, this reading will be re-examined.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
A comparison with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the first reading, showed that 6 of the 8 axes matched, and the readings diverged on the 4th axis (Form of the test) and the 8th axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The Holdings set out the subjective requirements of intentional avoidance and the non-necessity of insolvency, while also conducting a concrete evaluation of the bank's awareness, so depending on the emphasis it may be divided between Elements stated and Existing test applied.
당시 갑 회사가 채무초과 상태에 있었는지에 대한 병 은행의 인식 여부를 선의 인정의 주된 근거로 삼은 것은 잘못이고Axis 8 (Open question and revisit condition): Primary “Under what circumstances is a customary transaction, in which a financial institution acquires additional collateral in exchange for extending the maturity of an existing loan, distinguished from a preferential act intended to evade the principle of equal treatment of creditors?” vs Independent “Even after further proceedings following remand, can it be proved that the bank is a transferee in good faith?”
The first reading asks for the criteria distinguishing a customary additional collateral transaction from a preferential act, while the independent reading asks whether the good faith of the bank in question can be proved after remand.
원심이 담보신탁계약이 특정 채권자에 대한 담보제공행위로서 편파행위에 해당한다고 판단하면서 당시 갑 회사가 채무초과 상태에 있었는지에 대한 병 은행의 인식 여부를 선의 인정의 주된 근거로 삼은 것은 잘못이고Raw 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, while viewing that the act by which non-party Company 4 concluded a trust agreement for security with the plaintiff and designated the intervenor as the first-ranking preferred beneficiary constituted the provision of security to a specific creditor and was therefore subject to avoidance, accepted the defense of good faith, finding that the intervenor was unaware of the state of insolvency, by comprehensively considering that the extension of the term after acquisition of the additional collateral had been a reasonable handling of business affairs by the financial institution; that the credit evaluation report forecast that short-term liquidity risk could be addressed; that CP issuance and lending transactions continued; that there was no default in interest payments; and the publicly disclosed financial status.
Supreme Court standard: The Supreme Court held that, since under the system of the right of avoidance, which regulates even preferential acts, a state of insolvency is not required, it was wrong to take awareness of the state of insolvency as the principal ground for finding good faith. Furthermore, the Supreme Court held that there is sufficient room to find that the intervenor was aware that other creditors would be harmed, relying on the facts that the intervenor knew of the circumstances of the business suspension; that the use of a trust for security on land unrelated to the business, which incurred costs, was unusual; the increases in the debt ratio and the contingent liability ratio; and the fact that a rehabilitation application was filed on March 21, 2011, within four months after the contract; and on that basis reversed the judgment of the court below and remanded the case.
Distinguishing conditions
- A case in which the act in question is disputed not as a preferential act directed at a specific creditor but solely as a fraudulent act that absolutely diminishes the general estate
- A case in which not the right of avoidance but the creditor's right of revocation under the Civil Act is exercised and the state of insolvency is at issue as a requirement
- A case in which additional collateral is provided in relation to the subject matter of an existing loan in accordance with customary financial transaction practices and a considerable period has elapsed before the rehabilitation application
Record verification notes
Before invoking the legal principle of Supreme Court Decision 2014Da18131, first check whether the transferee actually knew of the circumstances of the debtor's business suspension or liquidity crisis, whether the method of acquiring the collateral was unusual in light of transaction practices, and what the time gap was between the act and the rehabilitation application.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호에서 정한 ‘채무자가 회생채권자 또는 회생담보권자를 해하는 것을 알고 한 행위’에 이른바 편파행위가 포함되는지 여부(적극) 및 편파행위에 대한 고의부인이 인정되기 위하여 필요한 주관적 요건의 내용 / 부인의 대상이 되는 행위 당시 수익자가 회생채권자 등을 해하는 사실을 알지 못하였는지에 대한 증명책임의 소재(=수익자) [2] 채무자 회생 및 파산에 관한 법률에서 정한 부인의 대상이 되는 행위 당시 채무자가 채무초과상태에 있어야만 부인권을 행사할 수 있는지 여부(소극) [3] 갑 주식회사가 대출금의 변제기 연장을 목적으로 을 주식회사와 담보신탁계약을 체결하고 병 은행을 1순위 우선수익자로 지정한 행위가 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호에 따라 부인의 대상이 되는지 문제 된 사안에서, 원심이 담보신탁계약이 특정 채권자에 대한 담보제공행위로서 편파행위에 해당한다고 판단하면서 당시 갑 회사가 채무초과 상태에 있었는지에 대한 병 은행의 인식 여부를 선의 인정의 주된 근거로 삼은 것은 잘못이고, 제반 사정에 비추어 병 은행은 갑 회사에 대한 회생절차가 개시되는 경우에 적용되는 채권자평등의 원칙을 회피하기 위하여 담보신탁계약의 우선수익자로 지정됨으로써 다른 채권자들을 해한다는 인식이 있었다고 볼 여지가 충분하다고 한 사례
Unofficial English translation
[1] Whether so-called preferential acts are included in 'an act that the debtor knew would harm rehabilitation creditors or rehabilitation security right holders' as provided in Article 100(1) subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (affirmative), and the content of the subjective requirement necessary for the intentional right of avoidance against a preferential act to be recognized / the allocation of the burden of proof as to whether the transferee at the time of the act subject to avoidance was unaware of the fact that it would harm rehabilitation creditors, etc. (= the transferee) [2] Whether the right of avoidance may be exercised only if the debtor was in a state of excess of liabilities at the time of the act subject to avoidance under the Debtor Rehabilitation and Bankruptcy Act (negative) [3] In a case where the question arose whether an act whereby Company A, Inc. concluded a trust agreement for security purposes with Company B, Inc. for the purpose of extending the maturity date of a loan and designated Bank C as the first-ranking preferred beneficiary falls under an act subject to avoidance pursuant to Article 100(1) subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, a case holding that the court below erred in, while finding that the trust agreement for security constituted an act of providing security to a specific creditor and thus a preferential act, taking as the principal ground for recognizing good faith Bank C's awareness of whether Company A was in a state of excess of liabilities at that time, and that, in light of all circumstances, there is sufficient room to regard Bank C as having had the awareness that, by being designated as the preferred beneficiary of the trust agreement for security in order to evade the principle of equality among creditors applicable where rehabilitation proceedings are commenced against Company A, other creditors would be harmed
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호, 민사소송법 제288조 [2] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호, 민법 제406조 제1항 [3] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호
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