Open Decision Ledger · Rehabilitation & bankruptcy
Scope of Avoidance as a Gratuitous Act of Granting a Priority Beneficial Right Under a Mortgage Trust for Another's Debt, and the Scope of the Conclusive Effect of the Table of Rehabilitation Claims
Translated from the Korean original. Read the Korean
Supreme Court, May 29, 2014, 2014Da765 (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
Is an act by which a debtor, without any obligation, granted a priority beneficial right under a mortgage trust to secure another party's loan claim subject to avoidance as a gratuitous act in rehabilitation proceedings, and if that right is entered in the table of rehabilitation claims, does its conclusive effect extend to the priority beneficial right as well?
Holding
A guarantee given or security provided by a debtor for another party without any obligation is subject to avoidance as a gratuitous act unless the debtor receives direct and concrete economic benefits as consideration. The Supreme Court held that the priority beneficial right constitutes security provided by a person other than the debtor and therefore cannot be affected by the rehabilitation plan, and that the conclusive effect of the entries in the table of rehabilitation claims does not extend to the priority beneficial right.
Points at issue, verbatim
채무자가 의무 없이 타인을 위하여 한 보증 또는 담보의 제공한 경우, 채무자 회생 및 파산에 관한 법률 제100조 제1항에서 말하는 ‘무상행위’에 해당하는지 여부(적극)
Unofficial English translation
Whether a surety or security provided by a debtor for another person without any obligation falls under 'gratuitous act' as used in Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act (affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Read from the decision
채무자가 그 대가로서 직접적이고도 현실적인 경제적 이익을 받지 아니하는 한 무상행위에 해당한다고 해석함이 상당하다
Unofficial English translation
it is reasonable to construe that it falls under a gratuitous act so long as the debtor does not receive direct and concrete economic benefits in return
Factors
- 부인의 대상인 ‘무상행위’의 의미
- 채무자가 의무 없이 타인을 위하여 한 보증 또는 담보의 제공한 경우
- 제2순위 우선수익권을 병 등에게 부여하는 부동산담보신탁변경계약
- 불가쟁의 효력이 병 등의 우선수익권에 미치지 아니한다
Unofficial English translation
• The meaning of 'gratuitous act,' which is the subject of avoidance
• Where a debtor provided a surety or security for another person without any obligation
• A real estate security trust amendment contract granting C, etc. the second-ranking priority beneficial right
• The effect of indisputability does not extend to the priority beneficial rights of C, etc.
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1999. 3. 26. 선고 97다20755 판결
Unofficial English translation
Supreme Court Decision 97Da20755 decided March 26, 1999
Decisions referred to
[1] 대법원 1999. 3. 26. 선고 97다20755 판결(공1999상, 760), 대법원 2008. 11. 27. 선고 2006다50444 판결(공2008하, 1762)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
By what standard is the contention that the act lacked unjustness, on the ground that it was necessary and reasonable, or inevitable, in light of the circumstances at the time the security was provided, determined in avoidance of a gratuitous act?
If Article 100, paragraph (1), subparagraph 4, Article 250, paragraph (2), or Article 255, paragraph (1) of the Debtor Rehabilitation and Bankruptcy Act is amended, this reading will be re-examined.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the initial reading, 7 of the 8 axes agreed, and the readings diverged on the fourth axis (Form of the test).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
Because the original text contains both general standards concerning the meaning of a gratuitous act and the provision of security without any obligation, and a case-specific determination that the conclusive effect does not extend to the priority beneficial right, the emphasis may be divided between elements stated and application to the facts.
불가쟁의 효력이 병 등의 우선수익권에 미치지 아니한다고 본 사례Raw 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 found that this case real estate mortgage trust modification agreement was a gratuitous act subject to avoidance, comprehensively considering the circumstances that non-party Company 4, in the course of extending the maturity of its loans, granted joint second-priority beneficial rights to Defendant 2, Nonghyup Bank, the main lender, and others, without receiving consideration from the borrower or acquiring any counter-performance such as the provision of new funds; the court below also rejected the argument based on the conclusiveness of the table of rehabilitation claims and the argument that this violated the principle of good faith.
Supreme Court standard: The Supreme Court approved the determination that the act was a gratuitous act as proper; as to the issue of conclusiveness, although certain parts of the reasoning of the court below were somewhat inappropriate, the Supreme Court maintained the conclusion on the ground that the priority beneficial right is security provided by a person other than the debtor and therefore lies outside the influence of the rehabilitation plan, so the conclusive effect does not extend to it. The Supreme Court held that the contention regarding the deficiency of the unjustness requirement was a new contention raised for the first time at the stage of final appeal and therefore did not constitute valid grounds for final appeal.
Distinguishing conditions
- Where the debtor received direct and concrete economic benefits, such as the provision of new funds, as consideration for the provision of security
- Where the debtor was under a pre-existing obligation to provide the guarantee or security
- Where the time of the act falls outside the relevant period, that is, it is not after the suspension of payment or within six months prior thereto
Record verification notes
Before asserting the same conclusion, check whether the debtor obtained any substantial counter-performance from the borrower or the creditors in connection with the provision of security, and whether the contention that the act lacked unjustness was properly raised and examined at the trial on the facts.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제4호에서 정한 부인의 대상인 ‘무상행위’의 의미 / 채무자가 의무 없이 타인을 위하여 한 보증 또는 담보의 제공한 경우, 채무자 회생 및 파산에 관한 법률 제100조 제1항에서 말하는 ‘무상행위’에 해당하는지 여부(적극) [2] 위탁자인 갑 주식회사가 채무담보를 위하여 수탁자 을과 수탁한 부동산의 제2순위 우선수익권을 병 등에게 부여하는 부동산담보신탁변경계약을 체결하였는데, 이후 갑 회사에 대하여 회생절차가 개시된 사안에서, 병 등의 권리가 회생채권자표에 기재되었더라도 채무자 회생 및 파산에 관한 법률 제255조 제1항에 따라 인정되는 불가쟁의 효력이 병 등의 우선수익권에 미치지 아니한다고 본 사례
Unofficial English translation
[1] The meaning of 'gratuitous act,' which is the subject of avoidance under Article 100 (1) 4 of the Debtor Rehabilitation and Bankruptcy Act / Whether a surety or security provided by a debtor for another person without any obligation falls under 'gratuitous act' as used in Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act (affirmative) [2] In a case where the settlor, Company A, concluded a real estate security trust amendment contract granting C, etc. the second-ranking priority beneficial right in the real estate entrusted to the trustee B as security for a debt, and rehabilitation proceedings were subsequently commenced against Company A, a case holding that, even if the rights of C, etc. were entered in the table of rehabilitation claims, the effect of indisputability recognized under Article 255 (1) of the Debtor Rehabilitation and Bankruptcy Act does not extend to the priority beneficial rights of C, etc.
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 모두 기각한다. 상고비용은 피고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of the final appeal shall be borne by the defendants.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제4호 [2] 채무자 회생 및 파산에 관한 법률 제255조 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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