Open Decision Ledger · Competition & fair trade
Effect in Private Law of an Agreement Violating the Prohibition on Affiliate Debt Guarantees under the Monopoly Regulation and Fair Trade Act, and the Scope of Extension of the Period for Avoidance of Gratuitous Acts
Translated from the Korean original. Read the Korean
Supreme Court, Jan. 17, 2019, 2015Da227017 (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
Where a company belonging to a business group subject to restrictions on debt guarantees enters into a funding support agreement in violation of the prohibition on debt guarantees or the prohibition on acts evading that prohibition under the Monopoly Regulation and Fair Trade Act, is the agreement void in private law, and is the period for avoidance of gratuitous acts for a joint and several guarantee extended to one year on the ground of a specially related relationship with the principal debtor?
Holding
A debt guarantee or an act evading the law that violates Article 10-2(1) or Article 15 of the Monopoly Regulation and Fair Trade Act is not automatically void in private law, and this funding support agreement is valid. The Supreme Court held that Article 101(3) of the Debtor Rehabilitation and Bankruptcy Act, which extends the period for avoidance to one year, applies only where the creditor, the counterparty to the joint and several guarantee, is a specially related person, and does not apply merely because the principal debtor stands in a specially related relationship.
Points at issue, verbatim
구 독점규제 및 공정거래에 관한 법률 제10조의2 제1항, 제15조를 위반한 채무보증이나 탈법행위가 사법상 당연 무효인지 여부(소극)
Unofficial English translation
Whether a debt guarantee or an act evading the law that violates Article 10-2 (1) and Article 15 of the former Monopoly Regulation and Fair Trade Act is automatically void as a matter of private law (negative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Circumstances weighed Stated in the decision
여러 사정을 종합적으로 고려해서 그 효력을 판단하여야 한다
Unofficial English translation
must determine its effect by comprehensively considering various circumstances
Factors
- 금지 규정 등을 위반한 법률행위의 효력을 판단하는 방법
- 채무보증이나 탈법행위가 사법상 당연 무효인지 여부
- 부인 대상 행위의 기간을 확장하는 같은 법 제101조 제3항
- 연대보증행위의 상대방인 채권자가 연대보증 채무자의 특수관계인이 아닌 경우
Unofficial English translation
• The method of determining the effect of a juristic act that violates a prohibitory provision, etc.
• Whether a debt guarantee or an act evading the law is automatically void as a matter of private law
• Article 101 (3) of the same Act, which extends the period of the act subject to avoidance
• A case where the creditor, as the counterparty to the joint suretyship act, is not a specially related person of the joint surety debtor
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 12. 23. 선고 2008다75119 판결
Unofficial English translation
Supreme Court Decision 2008Da75119 decided December 23, 2010
Decisions referred to
[1] 대법원 2010. 12. 23. 선고 2008다75119 판결(공2011상, 207), 대법원 2018. 10. 12. 선고 2015다256794 판결(공2018하, 2078) / [3] 대법원 2009. 2. 12. 선고 2008다48117 판결(공2009상, 318)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the Fair Trade Commission orders cancellation of a violating debt guarantee as a corrective measure, from what point in time and to what extent does the effect in private law of that cancellation reach the counterparty to the transaction?
This reading will be checked again if the Monopoly Regulation and Fair Trade Act's provisions prohibiting affiliate debt guarantees are amended so as to specify the effect in private law of a violating act, or if the requirement of a specially related person under Article 101(3) of the Debtor Rehabilitation and Bankruptcy Act is changed.
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 affiliated 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 eighth axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the Fair Trade Commission orders cancellation of a violating debt guarantee as a corrective measure, from what point in time and to what extent does the effect in private law of that cancellation reach the counterparty to the transaction?” vs Independent “Does this funding support agreement itself constitute an act evading the law, in the form of a debt guarantee prohibited under the Monopoly Regulation and Fair Trade Act?”
The initial reading asks about the effect in private law of the cancellation of a guarantee ordered as a corrective measure, whereas the independent reading asks whether the funding support agreement itself constitutes an act evading the law.
구 독점규제 및 공정거래에 관한 법률 제10조의2 제1항, 제15조를 위반한 채무보증이나 탈법행위가 사법상 당연 무효인지 여부(소극)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 held that although this funding support agreement contravenes Article 15 of the Monopoly Regulation and Fair Trade Act, it is valid in private law and cannot be regarded as void for violating the principle of good faith. It further held that the parties to the funding support obligation and the damages obligation are Woongjin Holdings and the defendants, and that since the defendants are not specially related persons, the avoidance period is not extended; that the fact that security was obtained has no effect on the determination of the amount of the rehabilitation claim; and that the comparative negligence ratio is also proper.
Supreme Court standard: The Supreme Court accepted, as it stood, the holding of the court below that the agreement is valid, leaving aside whether it constitutes an act evading the law, on the grounds that the provision of the Monopoly Regulation and Fair Trade Act authorizing the ordering of cancellation of a violating debt guarantee as a corrective measure presupposes that the debt guarantee is valid in private law, and that denying the agreement's effect is not necessary to achieve the legislative purpose. The Supreme Court also found proper the determinations of the court below regarding avoidance of gratuitous acts, calculation of the amount of damage, and comparative negligence, and dismissed all of the final appeals.
Distinguishing conditions
- Cases of prohibited conduct for which the statute expressly provides that the violating act is void, or provides for an action for a declaration of nullity, as with an agreement on an unfair concerted practice
- Cases in which the debt guarantee in question has already been cancelled by a corrective order of the Fair Trade Commission
- Cases in which the creditor itself, exercising rights pertaining to the guarantee as the direct counterparty to the joint and several guarantee, is a specially related person of the debtor
Record verification notes
Before asserting the same conclusion, first check whether the prohibition at issue specifies the effect of a violating act, whether there are separate circumstances in the agreement itself warranting treating it as a violation of the principle of good faith or as a juristic act contrary to public order and morals, and who the direct counterparty of the act subject to avoidance is.
From the official text
Points at issue
[1] 계약 등 법률행위의 당사자에게 일정한 의무를 부과하거나 일정한 행위를 금지하는 법규에서 이를 위반한 법률행위의 효력에 관하여 명확하게 정하지 않은 경우, 금지 규정 등을 위반한 법률행위의 효력을 판단하는 방법 [2] 구 독점규제 및 공정거래에 관한 법률 제10조의2 제1항, 제15조를 위반한 채무보증이나 탈법행위가 사법상 당연 무효인지 여부(소극) [3] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제4호에 따른 부인 대상이 연대보증행위인 사안에서 부인 대상 행위의 기간을 확장하는 같은 법 제101조 제3항이 적용되는 ‘상대방이 특수관계인인 경우’의 의미 및 주채무자가 연대보증 채무자와 특수관계에 있으나 연대보증행위의 상대방인 채권자가 연대보증 채무자의 특수관계인이 아닌 경우, 위 규정이 적용될 수 있는지 여부(소극)
Unofficial English translation
[1] In cases where a legal provision imposing a certain obligation on, or prohibiting a certain act by, the parties to a contract or other juristic act does not expressly stipulate the effect of a juristic act that violates such provision, the method of determining the effect of a juristic act that violates a prohibitory provision, etc. [2] Whether a debt guarantee or an act evading the law that violates Article 10-2 (1) and Article 15 of the former Monopoly Regulation and Fair Trade Act is automatically void as a matter of private law (negative) [3] Where the object of avoidance under Article 100 (1) 4 of the Debtor Rehabilitation and Bankruptcy Act is a joint suretyship act, the meaning of "a case where the counterparty is a specially related person" in Article 101 (3) of the same Act, which extends the period of the act subject to avoidance, and whether the above provision may apply where the principal debtor stands in a specially related relationship with the joint surety debtor but the creditor, as the counterparty to the joint suretyship act, is not a specially related person of the joint surety debtor (negative)
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 원고가 부담한다.
Unofficial English translation
All appeals are dismissed. The plaintiff shall bear the costs of appeal.
Provisions referred to
[1] 민법 제105조 [2] 구 독점규제 및 공정거래에 관한 법률(2017. 4. 18. 법률 제14813호로 개정되기 전의 것) 제10조의2 제1항(현행 제10조의2 참조), 제15조, 제16조 제1항, 제2항, 제17조 제2항, 제19조 제4항, 제66조 제1항 제6호, 제8호, 구 독점규제 및 공정거래에 관한 법률 시행령(2017. 7. 17. 대통령령 제28197호로 개정되기 전의 것) 제17조의5, 제21조의4 제1항 제2호(현행 제21조의4 제1항 제2호의2 참조), 민법 제103조 [3] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제4호, 제101조 제3항
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.
Back to the ledger