Open Decision Ledger · Rehabilitation & bankruptcy
Extinction of the Right of Avoidance upon Termination of Rehabilitation Proceedings and the Burden of Proof as to the Limit on the Amount of a Rehabilitation Security Right
Translated from the Korean original. Read the Korean
Supreme Court, Apr. 12, 2016, 2014Da68761 (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: 회생채권조사확정재판에대한이의
Official text on the National Law Information Center
Question
Does the effect of a right of avoidance already exercised also cease to exist when the rehabilitation proceedings are terminated, and who must prove the fact that the claim amount of a rehabilitation security right does not exceed the value of the collateral after deducting the prior-ranking security interest?
Holding
The right of avoidance is a right that may be exercised only by the administrator, on the premise that the rehabilitation proceedings are underway. Accordingly, if the rehabilitation proceedings are terminated before the property is recovered, the effect of the right of avoidance already exercised is also extinguished. In addition, it was held that the fact that the claim amount of a rehabilitation security right does not exceed the amount remaining after deducting the claim amount under the prior-ranking security interest from the value of the collateral is a requirement for the arising of a rehabilitation security right, and therefore must be asserted and proved by the holder of the rehabilitation security right.
Points at issue, verbatim
회생절차 진행 중 부인권이 행사되었으나 채무자에게 재산이 회복되기 이전에 회생절차가 종료한 경우, 부인권 행사의 효과가 소멸하는지 여부(적극)
Unofficial English translation
Where the right of avoidance was exercised during the rehabilitation proceedings but the rehabilitation proceedings terminated before property is restored to the debtor, whether the effect of the exercise of the right of avoidance ceases to exist (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The part of the judgment of the court below against the defendant is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
회생담보권 발생의 요건사실인지 여부(적극)
Unofficial English translation
Whether it is a constituent fact for the creation of the rehabilitation security right (affirmative)
Factors
- 부인권이 회생절차의 종결로 소멸하는지 여부(적극)
- 채무자에게 재산이 회복되기 이전에 회생절차가 종료한 경우
- 담보목적물의 가액에서 선순위 담보권의 채권액을 공제한 금액을 초과하지 않는다는 사실
- 회생담보권 발생의 요건사실
Unofficial English translation
• Whether the right of avoidance ceases to exist upon the conclusion of the rehabilitation proceedings (affirmative)
• Where the rehabilitation proceedings terminated before property is restored to the debtor
• The fact that it does not exceed the amount obtained by subtracting the claim amount of the prior-ranking security interest from the value of the collateral
• A constituent fact for the creation of the rehabilitation security right
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2012. 11. 15. 선고 2011다67897 판결 참조
Unofficial English translation
See Supreme Court Decision 2011Da67897 decided November 15, 2012
Decisions referred to
[1] 대법원 2006. 10. 26. 선고 2005다75880 판결 / [2] 대법원 2012. 11. 15. 선고 2011다67897 판결(공2012하, 2029)
Burden of proof
The party asserting Stated in the decision
회생담보권자가 이를 주장·증명하여야 하는지 여부(적극)
Unofficial English translation
Whether the rehabilitation security right holder must assert and prove it (affirmative)
Open question and revisit condition
After rehabilitation proceedings have been terminated, in new rehabilitation proceedings subsequently commenced, does the effect of the right of avoidance exercised by the former administrator revive, or may the new administrator again avoid the same act?
This reading will be re-examined if Article 100 or Article 141(4) of the Debtor Rehabilitation and Bankruptcy Act is amended, or if a new Supreme Court determination concerning the effect of the right of avoidance after the termination of rehabilitation proceedings is handed down.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading by a different AI family (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the eighth axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “After rehabilitation proceedings have been terminated, in new rehabilitation proceedings subsequently commenced, does the effect of the right of avoidance exercised by the former administrator revive, or may the new administrator again avoid the same act?” vs Independent “What is the specific amount of the rehabilitation security right to be recognized in this Case once the claim amount under the prior-ranking security interest and delay damages arising after the commencement of the rehabilitation proceedings are reflected?”
The first reading asks about the revival of the effect of the former right of avoidance, or the possibility of its re-exercise, in new rehabilitation proceedings, while the independent reading asks about the specific amount of the rehabilitation security right after reflecting the prior-ranking claim amount and delay damages.
회생절차 진행 중 부인권이 행사되었으나 채무자에게 재산이 회복되기 이전에 회생절차가 종료한 경우, 부인권 행사의 효과가 소멸하는지 여부(적극)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 rejected the claim of invalidity on the ground that, even if the consumption loan agreement for the first loan and the provision of security by the defendant's representative director constituted an abuse of representative authority, the plaintiff could not be regarded as having known or being able to know thereof. The court below also rejected the defendant's defense based on the right of avoidance. However, even though a prior-ranking security interest existed, without any examination of whether the amount exceeded the amount remaining after deducting the claim amount under the prior-ranking security interest from the value of the collateral, the court below recognized the entire claim amount asserted by the plaintiff as a rehabilitation security right.
Supreme Court standard: The Supreme Court regarded the determination of the court below on the abuse of representative authority as proper. As to the defense based on the right of avoidance, the Supreme Court held that, because the rehabilitation proceedings, which had been pending before the court below, were terminated on December 6, 2013, the effect of the exercise of the right of avoidance had been extinguished, and thus, although the reasoning stated by the court below was not appropriate, its conclusion was proper. However, because the limit on the claim amount of a rehabilitation security right is a fact to be proved by the holder of the rehabilitation security right and the court below failed to examine it, the Supreme Court reversed and remanded the part of the judgment in which the defendant lost. It also directed that whether delay damages arising after the order commencing rehabilitation proceedings were included in the rehabilitation security right should be examined. Although rehabilitation proceedings were again commenced on March 19, 2015, the Supreme Court, which rendered judgment without oral argument, dismissed the application for procedural succession on the ground that succession was unnecessary.
Distinguishing conditions
- Cases in which property had already been recovered for the debtor before the termination of the rehabilitation proceedings as a result of the exercise of the right of avoidance
- Cases in which there is no prior-ranking security interest in the collateral, so that the amount to be deducted is not at issue
- Cases in which the rehabilitation proceedings are not terminated but remain pending, so that the administrator's right of avoidance subsists
Record verification notes
Before asserting the same conclusion, first check the sequence between the time of termination of the rehabilitation proceedings and the time of recovery of the property, the existence and the claim amount of the prior-ranking security interest, evidence concerning the value of the collateral, and whether delay damages arising after the order commencing rehabilitation proceedings are mixed into the claimed amount.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률 제100조에서 정한 부인권이 회생절차의 종결로 소멸하는지 여부(적극) 및 회생절차 진행 중 부인권이 행사되었으나 채무자에게 재산이 회복되기 이전에 회생절차가 종료한 경우, 부인권 행사의 효과가 소멸하는지 여부(적극) [2] 회생채권조사확정재판에 대한 이의의 소에서 ‘회생담보권자가 주장하는 회생담보권 채권액이 담보목적물의 가액에서 선순위 담보권의 채권액을 공제한 금액을 초과하지 않는다는 사실’이 회생담보권 발생의 요건사실인지 여부(적극) 및 회생담보권자가 이를 주장·증명하여야 하는지 여부(적극)
Unofficial English translation
[1] Whether the right of avoidance provided for in Article 100 of the Debtor Rehabilitation and Bankruptcy Act ceases to exist upon the conclusion of the rehabilitation proceedings (affirmative), and whether, where the right of avoidance was exercised during the rehabilitation proceedings but the rehabilitation proceedings terminated before property is restored to the debtor, the effect of the exercise of the right of avoidance ceases to exist (affirmative) [2] Whether, in an action of objection to a decision confirming and investigating rehabilitation claims, 'the fact that the amount of the rehabilitation security right asserted by the rehabilitation security right holder does not exceed the amount obtained by subtracting the claim amount of the prior-ranking security interest from the value of the collateral' is a constituent fact for the creation of the rehabilitation security right (affirmative), and whether the rehabilitation security right holder must assert and prove it (affirmative)
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
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고와 피고 소송절차수계신청인의 각 소송절차수계신청을 기각한다. 소송절차수계신청으로 인한 비용은 원고와 피고 소송절차수계신청인 각자가 부담한다.
Unofficial English translation
The part of the judgment of the court below against the defendant is reversed, and the case is remanded to the Seoul High Court. The applications to succeed to the litigation proceedings filed by the plaintiff and by the defendant, an applicant to succeed to the litigation proceedings, are each dismissed. The costs arising from the applications to succeed to the litigation proceedings shall be borne respectively by the plaintiff and by the defendant, an applicant to succeed to the litigation proceedings.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제100조, 제105조, 제271조 [2] 채무자 회생 및 파산에 관한 법률 제141조 제1항, 제4항, 제170조, 제171조, 민사소송법 제288조
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.
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