Open Decision Ledger · Rehabilitation & bankruptcy
Intentional Avoidance of Deposit Payments to Employees and Their Relatives of a Savings Bank on the Eve of Suspension of Business, and Social Propriety
Translated from the Korean original. Read the Korean
Supreme Court, Dec. 10, 2015, 2015Da235582 (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
Where a savings bank, in a situation where suspension of business is anticipated, pays deposits to its employees and their relatives through unlawful procedures, is that act socially appropriate or unavoidable so as to fall outside the scope of the exercise of the right of avoidance?
Holding
The Supreme Court held that preferential acts are also subject to intentional avoidance, and that the deposit payments in this case were made to employees and their relatives in breach of the real-name verification obligation on the basis of internal information, and thus could not be regarded as an exceptional case in which ordinary bankruptcy claimants must bear unfairness. The circumstance that the element of unfairness is absent must be asserted and proved by the beneficiary.
Points at issue, verbatim
파산절차상 부인의 대상이 되는 채무자의 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 한다고 볼 수 있는 경우, 부인권 행사의 대상이 되는지 여부(소극)
Unofficial English translation
Where an act of the debtor that is subject to avoidance in bankruptcy proceedings is recognized as socially necessary and reasonable or unavoidable, so that general bankruptcy creditors must be regarded as having to bear the reduction of the bankruptcy estate or unfairness, whether the act may be subject to the exercise of the right of avoidance (negative)
Disposition
Partly reversed and remanded Stated in the decision
이 부분 사건을 부산고등법원에 환송한다.
Unofficial English translation
this part of the case is remanded to the Busan High Court.
Form of the test
Existing test applied Stated in the decision
제반 사정에 비추어 위 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 할 예외적인 경우에 해당한다고 볼 수 없다고 한 사례
Unofficial English translation
in light of all the circumstances, the act cannot be regarded as falling within the exceptional case where the act was recognized as socially necessary and reasonable or unavoidable, so that general bankruptcy creditors must bear the reduction of the bankruptcy estate or unfairness
Factors
- 채무자가 파산채권자를 해하는 것을 알고 한 행위
- 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용
- 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어
- 행위의 상당성 여부를 판단하는 기준
Unofficial English translation
• an act done by a debtor with knowledge that it prejudices bankruptcy creditors
• the content of the subjective requirement demanded for recognition of an intentional avoidance as to preferential acts
• recognized as socially necessary and reasonable or unavoidable
• the criteria for determining the reasonableness of the act
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2004. 3. 26. 선고 2003다65049 판결
Unofficial English translation
Supreme Court Decision 2003Da65049 decided March 26, 2004
Decisions referred to
[1][2] 대법원 2004. 3. 26. 선고 2003다65049 판결(공2004상, 723), 대법원 2011. 10. 13. 선고 2011다56637, 56644 판결(공2011하, 2351) / [1] 대법원 2005. 11. 10. 선고 2003다271 판결(공2005하, 1925)
Burden of proof
The opposing party Stated in the decision
부당성 요건을 흠결하였다는 사정에 대한 주장·증명책임의 소재(=수익자)
Unofficial English translation
where the burden of allegation and proof as to the circumstance that the requirement of impropriety has been lacking lies (= the beneficiary)
Open question and revisit condition
Even in a situation where suspension of business is anticipated, may deposit payments made to general customers through lawful procedures during normal business hours be recognized as socially appropriate?
If the Supreme Court's legal principle on the requirements for avoidance under Article 391 of the Debtor Rehabilitation and Bankruptcy Act, or on the social propriety that limits the right of avoidance, changes, this reading will be checked again.
Cross-family AI independent reading & axis check
5 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 5 of the 8 axes agreed, and the readings diverged on axis 4 (Form of the test), axis 5 (Factors), and axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Circumstances weighed”
Because the text presents both a case denying the exception in light of the standard for assessing propriety and the attendant circumstances, it can be read differently as a concrete application to the facts or as an overall weighing of the various circumstances.
행위의 상당성 여부를 판단하는 기준Axis 5 (Factors): Primary “An act committed with knowledge that it harms bankruptcy creditors / The content of the subjective element required for intentional avoidance of a preferential act to be recognized / Recognized as socially necessary and appropriate, or unavoidable / The standard for determining whether the act is proper” vs Independent “Recognized as socially necessary and appropriate, or unavoidable / A case in which ordinary bankruptcy claimants must bear a reduction of the bankruptcy estate or unfairness / A situation in which a large-scale withdrawal of deposits and suspension of business are anticipated / A case in which deposits were paid to Eul and others, who were employees or relatives of employees”
Social propriety and unavoidability overlap, but the primary reading lists awareness of harm and the subjective element of intentional avoidance as central elements, while the independent reading cites the anticipated suspension of business and the circumstances of the payments to employees and their relatives.
파산절차상 부인의 대상이 되는 채무자의 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 한다고 볼 수 있는 경우, 부인권 행사의 대상이 되는지 여부(소극)Axis 8 (Open question and revisit condition): Primary “Even in a situation where suspension of business is anticipated, may deposit payments made to general customers through lawful procedures during normal business hours be recognized as socially appropriate?” vs Independent “May social propriety be recognized where deposit payments made before the suspension of business followed lawful procedures and met urgent needs of livelihood?”
The primary asks about payments made lawfully to general customers during normal business hours, while the independent asks about the case where lawful payments met urgent needs of livelihood.
파산절차상 부인의 대상이 되는 채무자의 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 한다고 볼 수 있는 경우, 부인권 행사의 대상이 되는지 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 viewed the bankrupt company's payment of deposits as a preferential act carried out with awareness of evading the principle of equal treatment of creditors, and therefore as subject to intentional avoidance. However, it dismissed the claims against Defendant 3 and 8 others on the ground that their withdrawals of deposits were socially appropriate or unavoidable acts, and it rejected the defenses of social propriety raised by Defendant 1 and Defendant 2.
Supreme Court standard: The Supreme Court, citing the fact that the officers and employees who had been informed of internal information withdrew their own deposits or those of their relatives, in breach of the real-name verification obligation, at a time when customers were not visiting the branch immediately before the suspension of business, and that as a result they were disciplined or became subject to disciplinary action, held that the assessment of social propriety as to Defendant 3 and 8 others exceeded the bounds of the principle of free evaluation of evidence and misconstrued the legal principle, and reversed and remanded. It dismissed the final appeal, finding the determination of the court below as to Defendant 1 and Defendant 2 to be proper.
Distinguishing conditions
- Where the deposit payment was made to general customers during normal business hours through lawful procedures such as real-name verification, irrespective of internal information
- Where it is not proved that the debtor had the awareness of paying only specific creditors in order to evade the principle of equal treatment of creditors, and the subjective element of intentional avoidance is not satisfied
- Where the beneficiary proves the propriety of the act by adducing the source of the repayment funds, the relationship with the creditor, the absence of collusion or coercion, etc.
Record verification notes
Before asserting the same conclusion, first check whether the beneficiary had a special relationship with the debtor, whether there was any illegality in the payment procedure, and whether there are circumstances on the beneficiary's side capable of proving the absence of the element of unfairness.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률 제391조 제1호에서 정한 부인의 대상으로 되는 행위인 ‘채무자가 파산채권자를 해하는 것을 알고 한 행위’에 이른바 편파행위가 포함되는지 여부(적극) 및 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용 [2] 파산절차상 부인의 대상이 되는 채무자의 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 한다고 볼 수 있는 경우, 부인권 행사의 대상이 되는지 여부(소극) 및 행위의 상당성 여부를 판단하는 기준 / 부당성 요건을 흠결하였다는 사정에 대한 주장·증명책임의 소재(=수익자) [3] 갑 저축은행이 대규모 예금인출사태 및 영업정지가 예상되는 상황에서 직원 또는 직원의 친인척인 을 등에게 예금을 지급한 사안에서, 제반 사정에 비추어 위 행위가 사회적으로 필요하고 상당하였다거나 불가피하였다고 인정되어 일반 파산채권자가 파산재단의 감소나 불공평을 감수하여야 할 예외적인 경우에 해당한다고 볼 수 없다고 한 사례
Unofficial English translation
[1] Whether so-called preferential acts are included in 'an act done by a debtor with knowledge that it prejudices bankruptcy creditors' as an act subject to avoidance under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (affirmative) and the content of the subjective requirement demanded for recognition of an intentional avoidance as to preferential acts [2] Where an act of the debtor that is subject to avoidance in bankruptcy proceedings is recognized as socially necessary and reasonable or unavoidable, so that general bankruptcy creditors must be regarded as having to bear the reduction of the bankruptcy estate or unfairness, whether the act may be subject to the exercise of the right of avoidance (negative) and the criteria for determining the reasonableness of the act / where the burden of allegation and proof as to the circumstance that the requirement of impropriety has been lacking lies (= the beneficiary) [3] In a case where Savings Bank A, in a situation where a large-scale withdrawal of deposits and a suspension of business were expected, paid deposits to B and others who were employees or relatives of employees, a case holding that, in light of all the circumstances, the act cannot be regarded as falling within the exceptional case where the act was recognized as socially necessary and reasonable or unavoidable, so that general bankruptcy creditors must bear the reduction of the bankruptcy estate or unfairness
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 3, 피고 4, 피고 5, 피고 6, 피고 7, 피고 8, 피고 9, 피고 10, 피고 11에 대한 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 피고 1, 피고 2의 상고를 각 기각한다. 상고비용 중 피고 1, 피고 2의 상고로 인한 부분은 위 피고들이 부담한다.
Unofficial English translation
The parts of the judgment of the court below concerning Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, Defendant 10, and Defendant 11 are reversed, and this part of the case is remanded to the Busan High Court. The final appeals of Defendant 1 and Defendant 2 are each dismissed. The portion of the costs of the final appeal arising from the final appeals of Defendant 1 and Defendant 2 shall be borne by those defendants.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제391조 제1호 [2] 채무자 회생 및 파산에 관한 법률 제391조, 민사소송법 제288조 [3] 채무자 회생 및 파산에 관한 법률 제391조 제1호
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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