Open Decision Ledger · Rehabilitation & bankruptcy
Subjective requirements for avoidance of a preferential act for intent, burden of proof as to the beneficiary's good faith and the absence of unfairness, and the scope of restitution
Translated from the Korean original. Read the Korean
Supreme Court, Sept. 25, 2014, 2014Da214885 (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: 부인의소
Official text on the National Law Information Center
Question
Does a repayment made to a particular deposit creditor immediately before bankruptcy fall within the scope of avoidance for intent, and who must prove the beneficiary's good faith and the reasonableness of the act?
Holding
The scope of avoidance for intent includes preferential acts, and the subjective requirement is satisfied where there is an awareness that repayment is being made only to a particular creditor in order to evade the principle of equal treatment of creditors. The beneficiary's bad faith is presumed, and the beneficiary must prove good faith and the absence of unfairness; upon avoidance, legal interest from the date of repayment must also be returned.
Points at issue, verbatim
‘파산자가 파산채권자를 해함을 알고 한 행위’에 이른바 편파행위가 포함되는지 여부(적극)
Unofficial English translation
Whether the so-called preferential act is included in the 'act done by the bankrupt with knowledge that it prejudices bankruptcy creditors' (affirmative)
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
원심판결 이유를 앞서 본 법리와 기록에 비추어 보면, 원심의 위와 같은 판단은 정당하고
Unofficial English translation
When the reasons for the judgment of the court below are considered in light of the legal principles reviewed above and the records, the foregoing determination of the court below is just, and
Factors
- 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용
- 행위의 상당성 유무에 관한 판단 기준
- 부당성 요건을 흠결하였다는 사정에 대한 주장·증명책임의 소재(=수익자)
- 변제받은 날부터 발생한 법정이자를 반환하여야 하는지 여부(적극)
- 반환의무의 이행지체책임 발생 시기
Unofficial English translation
• the content of the subjective requirements demanded for intentional avoidance of a preferential act to be recognized
• the criteria for determining whether the act is proper
• on whom the burden of alleging and proving the circumstance that the requirement of impropriety is defective lies (= the beneficiary)
• whether statutory interest accrued from the date the payment was received must be returned (affirmative)
• the time when liability for delay in performance of the obligation to return arises
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2005. 11. 10. 선고 2003다271 판결
Unofficial English translation
Supreme Court Decision 2003Da271 decided November 10, 2005
Decisions referred to
[1] 대법원 2005. 11. 10. 선고 2003다271 판결(공2005하, 1925) / [2] 대법원 2011. 10. 13. 선고 2011다56637, 56644 판결(공2011하, 2351) / [3] 대법원 2004. 3. 26. 선고 2003다65049 판결(공2004상, 723), 대법원 2011. 10. 13. 선고 2011다56637, 56644 판결(공2011하, 2351) / [4] 대법원 2007. 10. 11. 선고 2005다43999 판결
Burden of proof
The opposing party Stated in the decision
그와 같은 부당성의 요건을 흠결하였다는 사정에 대한 주장·증명책임은 상대방인 수익자에게 있다
Unofficial English translation
the burden of alleging and proving the circumstance that the requirement of such impropriety is defective lies with the other party, i.e., the beneficiary
Open question and revisit condition
Apart from the circumstance that the beneficiary is an elderly deposit holder who is poorly informed, what further circumstances must be added before the act of repayment is regarded as socially reasonable and unavoidable and therefore excluded from the scope of avoidance?
This reading will be re-examined if Article 391 or Article 397 of the Debtor Rehabilitation and Bankruptcy Act is amended, or if subsequent decisions are handed down concerning the criteria for assessing the reasonableness of a preferential act.
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 line of AI (GPT-6 Astra), which read only the original text without seeing the initial reading, 7 of the 8 axes matched, and the readings diverged on the fourth axis (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
If the focus is on the requirements for avoidance for intent and the burden of proof as set out in the Holdings, it may be read as Elements stated; if the focus is placed on resolving the specific dispute in connection with the disposition of appeal dismissed, it may be read as Existing test applied.
편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용Raw 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 (Daejeon High Court Decision 2013Na11636) held that the act by which the debtor company, in a situation where suspension of business was imminent, separately contacted only its large deposit holders and repaid the deposit amounts to the defendant was a preferential act, and, finding that there was an awareness of evading the principle of equal treatment of creditors, held that it was subject to avoidance for intent. It rejected the defendant's assertion of good faith for lack of Evidence, held that the mere fact that the defendant was an elderly deposit holder with no direct interest was insufficient to recognize reasonableness, and ordered the payment of interest and damages for delay at the rate of 5% per annum from the date of withdrawal of the deposit to the date of pronouncement of judgment of the court below, and 20% per annum from the day thereafter.
Supreme Court standard: The Supreme Court confirmed the existing legal principles concerning the subjective requirements for avoidance of a preferential act for intent, the presumption of the beneficiary's bad faith and the burden of proof as to good faith, the burden of proof as to the absence of unfairness, and the return of legal interest as restitution together with liability for delay arising from the day following service of a copy of the complaint, and, finding the determination of the court below to accord with these principles, dismissed the final appeal in its entirety.
Distinguishing conditions
- Where the repayment was not made by selectively contacting only particular creditors but was carried out generally in the ordinary course of business, making it difficult to recognize an awareness of evading equal treatment of creditors
- Exceptional cases where, having regard to the source of the repayment funds, the relationship between the debtor and the creditor, and the like, the act is recognized as having been socially necessary and reasonable or unavoidable
- Where the right of avoidance is exercised not by way of an action but by some other means, so that the starting point of liability for delay is not connected to service of a copy of the complaint
Record verification notes
Before asserting the same conclusion, it is necessary first to check whether the record reveals that the debtor had an awareness of repaying only particular creditors, and whether the beneficiary submitted independent Evidence supporting good faith or reasonableness.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률 제391조 제1호에서 정한 부인의 대상으로 되는 행위인 ‘파산자가 파산채권자를 해함을 알고 한 행위’에 이른바 편파행위가 포함되는지 여부(적극) 및 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용 [2] 채무자 회생 및 파산에 관한 법률 제391조 제1호에서 정한 부인의 대상이 되는 행위 당시 수익자가 파산채권자 등을 해하는 사실을 알지 못하였는지에 대한 증명책임의 소재(=수익자) [3] 파산절차상 부인의 대상이 되는 행위가 사회적으로 상당하고 불가피하여 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 한다고 볼 수 있는 경우, 부인권 행사의 대상이 되는지 여부(소극) 및 행위의 상당성 유무에 관한 판단 기준 / 부당성 요건을 흠결하였다는 사정에 대한 주장·증명책임의 소재(=수익자) [4] 채무자의 채권자에 대한 변제행위가 부인된 결과 채권자가 변제받은 금액을 반환하는 경우, 변제받은 날부터 발생한 법정이자를 반환하여야 하는지 여부(적극) / 소로써 부인권을 행사함과 아울러 원상회복으로 금전의 반환을 구하는 경우, 반환의무의 이행지체책임 발생 시기
Unofficial English translation
[1] Whether the so-called preferential act is included in the 'act done by the bankrupt with knowledge that it prejudices bankruptcy creditors' as provided in Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (affirmative), and the content of the subjective requirements demanded for intentional avoidance of a preferential act to be recognized [2] On whom the burden of proof lies as to whether the beneficiary was unaware of the fact of prejudicing bankruptcy creditors, etc. at the time of the act subject to avoidance under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (= the beneficiary) [3] Where an act subject to avoidance in bankruptcy proceedings is socially proper and inevitable so that the general bankruptcy creditors must be regarded as having to accept a diminution of the bankruptcy estate or unfairness, whether the act is subject to the exercise of the right of avoidance (negative) and the criteria for determining whether the act is proper / On whom the burden of alleging and proving the circumstance that the requirement of impropriety is defective lies (= the beneficiary) [4] Where, as a result of an act of payment by the debtor to a creditor being avoided, the creditor returns the amount paid, whether statutory interest accrued from the date the payment was received must be returned (affirmative) / Where the right of avoidance is exercised by an action and, at the same time, the return of money is sought as restitution, the time when liability for delay in performance of the obligation to return arises
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
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the appeal shall be borne by the defendant.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제391조 제1호 [2] 채무자 회생 및 파산에 관한 법률 제391조 제1호, 민사소송법 제288조 [3] 채무자 회생 및 파산에 관한 법률 제391조 [4] 채무자 회생 및 파산에 관한 법률 제397조 제1항
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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