Standard for computing the exclusion period for the right of avoidance exercised by amending the claim in a creditor revocation action taken over by a bankruptcy trustee

1. 01Question

   Where a bankruptcy trustee, having taken over a creditor revocation action brought by a bankruptcy creditor, exercises the right of avoidance by amending the claim to the extent succeeded to, at what point in time is compliance with the exclusion period determined?

2. 02Holding

   Because upon takeover the procedural effects of the creditor revocation action succeed to the bankruptcy trustee as they are, unless there are special circumstances, compliance with the exclusion period is determined based on the time when the creditor revocation action was first pending before the court prior to the interruption. The Supreme Court held that even an amendment of the claim made after two years had elapsed from the date of the declaration of bankruptcy does not render the action for avoidance procedurally improper.

   Summary of the holding, verbatim

   파산관재인이 채권자취소소송을 수계한 후 이를 승계한 한도에서 청구변경의 방법으로 부인권 행사를 한 경우, 특별한 사정이 없는 한, 제척기간의 준수 여부는 중단 전 채권자취소소송이 법원에 처음 계속된 때를 기준으로 판단하여야 한다.

   Unofficial English translation

   Where the bankruptcy trustee succeeded to a creditor revocation action and, to the extent succeeded to, exercised the right of avoidance by way of amendment of claims, unless there are special circumstances, the observance of the exclusion period must be determined based on the time when the creditor revocation action prior to the stay was first pending before the court.

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심판결을 파기하고, 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.

4. 04Form of the test

   Elements stated Stated in the decision

   제척기간의 준수 여부는 중단 전 채권자취소소송이 법원에 처음 계속된 때를 기준으로 판단하여야 한다.

   Unofficial English translation

   The observance of the exclusion period must be determined based on the time when the creditor revocation action prior to the stay was first pending before the court.

5. 05Factors

   • 파산선고 이전에 적법하게 제기한 채권자취소소송
   • 채권자취소소송의 소송상 효과는 파산관재인에게 그대로 승계되므로
   • 이를 승계한 한도에서 청구변경의 방법으로 부인권 행사를 한 경우
   • 부인권이 파산채무자가 파산채권자를 해함을 알고 한 행위를 부인하고 파산채무자로부터 일탈된 재산의 원상회복을 구할 수 있는 권리라는 점에서 채권자취소권과 동일한 목적을 가지고 있기 때문이다

   Unofficial English translation

   • A creditor revocation action duly filed before the declaration of bankruptcy

   • since the procedural effects of a creditor revocation action are succeeded to by the bankruptcy trustee as they stand,

   • where, to the extent succeeded to, the right of avoidance is exercised by way of amendment of claims,

   • because the right of avoidance, being the right to avoid an act that the bankrupt debtor knew would prejudice bankruptcy creditors and to seek restoration of the property dissipated from the bankrupt debtor, has the same purpose as the creditor's right of revocation.

6. 06Relation to precedent

   States a new standard Read from the decision

   제척기간의 준수 여부를 채권자취소소송이 법원에 처음 계속된 때를 기준으로 판단하여야 하는지 여부(원칙적 적극)

   Unofficial English translation

   Whether the observance of the exclusion period must be determined based on the time when the creditor revocation action was first pending before the court (in principle, affirmative)

   Decisions referred to

   None listed

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   What are the special circumstances that preclude retroactive computation of the starting point, and for the portion of the amendment of the claim that exceeds the scope of the creditor's right of revocation succeeded to, at what point in time is the exclusion period determined?

   If the period for exercising the right of avoidance under Article 405 of the Debtor Rehabilitation and Bankruptcy Act or the takeover provisions of Article 406 and Article 347 are amended, we will re-examine this reading.

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.