Open Decision Ledger · Rehabilitation & bankruptcy
Whether a Payment of Share Purchase Price Made in the Name of a Third Party Is Subject to Avoidance as an Intentional Act, and Who Bears the Burden of Proving the Transferee's Good Faith
Translated from the Korean original. Read the Korean
Supreme Court, Apr. 14, 2022, 2016Da220198 (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
If a debtor, borrowing the name of a third party, pays the purchase price arising from an investor's demand for performance of a sale, is that act subject to avoidance as an intentional act under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, and who must prove the transferee's good faith?
Holding
Even an act of a creditor or a third party may be subject to avoidance if there are special circumstances warranting that it be treated as the debtor's own act, and intentional acts include preferential acts as well. Because the transferee's bad faith is presumed, the transferee bears the burden of proving good faith, and the Supreme Court, applying this legal principle, upheld the court below's recognition of avoidance.
Points at issue, verbatim
채권자 또는 제3자의 행위가 채무자 회생 및 파산에 관한 법률상 부인의 대상이 될 수 있는지 여부(한정 적극)
Unofficial English translation
Whether an act of a creditor or a third party may become subject to avoidance under the Debtor Rehabilitation and Bankruptcy Act (limited affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Stated in the decision
위와 같은 원심의 판단은 정당하다.
Unofficial English translation
The finding of the court below as stated above is justifiable.
Factors
- 채권자 또는 제3자의 행위가 채무자 회생 및 파산에 관한 법률상 부인의 대상이 될 수 있는지 여부
- 이른바 편파행위도 포함되는지 여부(적극)
- 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용
- 수익자가 파산채권자 등을 해하는 사실을 알지 못하였는지에 대한 증명책임의 소재
Unofficial English translation
• Whether an act of a creditor or a third party may become subject to avoidance under the Debtor Rehabilitation and Bankruptcy Act
• Whether the so-called preferential act is also included therein (affirmative)
• The content of the subjective requirement demanded for intentional avoidance of a preferential act to be recognized
• Which party bears the burden of proof as to whether the transferee was unaware of the fact that it would prejudice bankruptcy creditors, etc.
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2011. 11. 24. 선고 2009다76362 판결
Unofficial English translation
Supreme Court Decision 2009Da76362 decided November 24, 2011
Decisions referred to
[1][2][3] 대법원 2011. 10. 13. 선고 2011다56637, 56644 판결(공2011하, 2351) / [1] 대법원 2011. 11. 24. 선고 2009다76362 판결(공2012상, 16) / [2][3] 대법원 2014. 9. 25. 선고 2014다214885 판결
Burden of proof
The opposing party Stated in the decision
선의에 대한 증명책임은 수익자가 부담한다
Unofficial English translation
The burden of proof as to good faith is borne by the transferee
Open question and revisit condition
Where the person lending his or her name steps forward as a party to the contract, what circumstances, beyond the source of the funds, must be present before special circumstances warranting that the act be treated as the debtor's own act can be recognized?
If the precedents on the requirements for avoidance under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act or on the presumption of the transferee's bad faith are changed, 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
A comparison with an independent reading by another AI line of the family (GPT-6 Astra), which read only the original text without seeing the first reading, showed that 7 of the 8 axes agreed, while the readings diverged on the fourth axis (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the text sets out the limits of amenability to avoidance and the subjective requirements and the burden of proof, and dismisses the final appeals, the first reading may focus on upholding the recognition of avoidance, while the independent reading may focus on the statement of general requirements.
편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용Raw 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 non-party 2 and non-party 3 merely lent their names at the request of the major shareholder non-party 4, and that because the purchase price was paid out of monies owned and managed by Busan Savings Bank, Busan Savings Bank should be regarded as having entered into the contract under a borrowed name. It further found that, while in a state of capital impairment, the payment was made with knowledge that it would harm bankruptcy creditors, and that the presumption of bad faith on the part of the defendants was difficult to overturn, and therefore recognized avoidance and the obligation to restore the status quo ante.
Supreme Court standard: In light of the established legal principles concerning the exceptional amenability of third-party acts to avoidance, the inclusion of preferential acts within intentional acts, and the transferee's burden of proving good faith, the Supreme Court regarded the court below's determination as proper, rejected the arguments alleging failure to exhaust deliberations or misapprehension of legal principles regarding the subject of avoidance and intent to harm creditors, and dismissed all of the final appeals.
Distinguishing conditions
- Where a third party who is the counterparty to the contract dealt using its own funds and its own intent, and no circumstances of collusion or fabrication by the debtor are revealed
- Where the source of the purchase price cannot be regarded as property owned and managed by the debtor
- Where the transferee specifically proves that it did not know of the fact of harm to bankruptcy creditors at the time of the act, so that the presumption of bad faith is overturned
Record verification notes
Before asserting the same conclusion, it should be checked whether the party to the transaction in name in fact acted according to the debtor's intent, whether the funds paid came out of the debtor's general property, and whether the debtor's financial state at the time of the act supports the view that it held an awareness of evading the principle of equality among creditors.
From the official text
Points at issue
[1] 채권자 또는 제3자의 행위가 채무자 회생 및 파산에 관한 법률상 부인의 대상이 될 수 있는지 여부(한정 적극) [2] 채무자 회생 및 파산에 관한 법률 제391조 제1호에서 정한 부인의 대상으로 되는 행위인 ‘채무자가 파산채권자를 해하는 것을 알고 한 행위’에 이른바 편파행위도 포함되는지 여부(적극) 및 편파행위에 대한 고의부인이 인정되기 위하여 요구되는 주관적 요건의 내용 [3] 채무자 회생 및 파산에 관한 법률 제391조 제1호에서 정한 부인의 대상이 되는 행위 당시 수익자가 파산채권자 등을 해하는 사실을 알지 못하였는지에 대한 증명책임의 소재(=수익자)
Unofficial English translation
[1] Whether an act of a creditor or a third party may become subject to avoidance under the Debtor Rehabilitation and Bankruptcy Act (limited affirmative) [2] Whether the so-called preferential act is also included in the acts subject to avoidance, namely an 'act done by the debtor with knowledge that it would prejudice bankruptcy creditors,' as provided in Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (affirmative), and the content of the subjective requirement demanded for intentional avoidance of a preferential act to be recognized [3] Which party bears the burden of proof as to whether the transferee was unaware, at the time of the act subject to avoidance under Article 391, subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, of the fact that it would prejudice bankruptcy creditors, etc. (= the transferee)
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 final appeal shall be borne by the defendants.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제391조 [2] 채무자 회생 및 파산에 관한 법률 제391조 제1호 [3] 채무자 회생 및 파산에 관한 법률 제391조 제1호, 민사소송법 제288조[증명책임]
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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