Open Decision Ledger · Rehabilitation & bankruptcy
Requirements for avoidance on the ground of intent with respect to an act of execution and the burden of proof as to special circumstances
Translated from the Korean original. Read the Korean
Supreme Court, July 24, 2018, 2018Da210348 (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: 부인
Official text on the National Law Information Center
Question
What circumstances are required in order to avoid a creditor's act of execution on the ground of intent pursuant to Article 100 (1) 1 of the Debtor Rehabilitation and Bankruptcy Act, and who bears the burden of proof?
Holding
In avoiding an act of execution, no special circumstance making it to be regarded as an act of the debtor is required. However, for avoidance on the ground of intent, there must be special circumstances that are in substance identical to performance made with knowledge of prejudice to creditors, such as the debtor actively inducing the execution while knowing that it prejudices creditors; and it was held that the burden of proof lies with the administrator asserting avoidance on the ground of intent.
Points at issue, verbatim
집행행위를 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호에 따라 부인하기 위한 요건으로 ‘채무자가 파산채권자들을 해함을 알면서도 변제한 것’과 사실상 동일하다고 볼 수 있는 특별한 사정이 있어야 하는지 여부(적극)
Unofficial English translation
Whether, as a requirement for avoiding an act of execution under subparagraph 1 of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act, there must be special circumstances that can be regarded as substantially identical with "the debtor having made payment knowing that it would be detrimental to the bankruptcy creditors" (affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
행위주체의 점을 제외하고는 채무자회생법 제100조 제1항 각호 중 어느 하나에 해당하는 요건을 갖추어야 한다
Unofficial English translation
apart from the element as to the person who performed the act, the requirements under one of the items of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act must be satisfied
Factors
- 채권자 또는 제3자의 행위를 채무자의 행위와 동일시할 수 있는 경우
- 채무자의 행위와 같이 볼 만한 특별한 사정이 있어야 하는지 여부(소극)
- 특별한 사정이 있다는 점에 대한 증명책임의 소재
- 집행행위 당시 채무자가 채무초과상태에 있었다는 것만으로 특별한 사정이 있다고 단정할 수 있는지 여부(소극)
Unofficial English translation
• Where an act of a creditor or a third party may be equated with an act of the debtor
• Whether there must be special circumstances warranting treating it as an act of the debtor (negative)
• The allocation of the burden of proof as to the existence of special circumstances
• Whether it may be categorically asserted that special circumstances exist merely because the debtor was in a state of excess of liabilities over assets at the time of the act of execution (negative)
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. 11. 24. 선고 2009다76362 판결(공2012상, 16) / [1] 대법원 2011. 10. 13. 선고 2011다56637, 56644 판결(공2011하, 2351)
Burden of proof
The party asserting Stated in the decision
고의부인을 주장하는 관리인에게 증명책임이 있다.
Unofficial English translation
The burden of proof lies with the administrator asserting intentional avoidance.
Open question and revisit condition
To what extent do concrete types of conduct qualify as the debtor having actively induced the act of execution?
If Article 100 (1) 1 or Article 104 of the Debtor Rehabilitation and Bankruptcy Act is amended, or if subsequent case law on the avoidance of acts of execution emerges, this reading will be re-examined.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another family of AI (GPT-6 Astra), which read only the original text without seeing the initial reading, all 8 axes matched.
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 the claim against a guarantor arising from a joint and several guaranty was a claim supported by an enforceable title of execution, that the effect of being uncontestable arose because the administrator did not raise an objection through litigation proceedings within the period, and that its existence therefore could not be contested by means of the right of avoidance; and as to the assignment order, the court below rejected the argument for avoidance on the ground of intent, stating that there was insufficient Evidence to find either that the debtor intentionally caused the defendant's compulsory execution or that there were special circumstances making the matter to be regarded as in substance identical to performance.
Supreme Court standard: The Supreme Court found no misapprehension of legal principles in the court below's interpretation of Article 174 of the Debtor Rehabilitation and Bankruptcy Act or in its holding on the burden of proof for avoidance on the ground of intent, and dismissed the final appeal. It confirmed the legal principle that, while avoidance of an act of execution does not require special circumstances making it to be regarded as an act of the debtor, avoidance on the ground of intent requires special circumstances that are in substance identical to performance made with knowledge of prejudice, and that the administrator must prove them.
Distinguishing conditions
- Cases in which what is asserted is not avoidance on the ground of intent but avoidance in case of crisis or avoidance of a gratuitous act, neither of which requires the debtor's subjective element
- Cases in which the object of avoidance is not an act of execution by an enforcement agency but the debtor's own performance or provision of security
- Cases in which the claim has already become final without objection or has acquired the effect of being uncontestable, so that the existence of the claim cannot be contested by means of the right of avoidance
Record verification notes
Before asserting avoidance on the ground of intent with respect to an act of execution, it is confirmed whether the administrator can prove, in addition to the state of insolvency, the circumstance that the debtor actively induced the creditor's execution while knowing that it prejudiced creditors, and whether the relevant claim has not become final by virtue of the effect of being uncontestable.
From the official text
Points at issue
[1] 채무자의 행위가 없더라도 채권자 또는 제3자의 행위를 채무자의 행위와 동일시할 수 있는 경우, 채무자 회생 및 파산에 관한 법률 제100조 제1항 각호에서 정한 부인의 대상이 될 수 있는지 여부(적극) [2] 집행행위를 채무자 회생 및 파산에 관한 법률 제100조 제1항 각호에 따라 부인하기 위한 요건으로 채무자의 행위와 같이 볼 만한 특별한 사정이 있어야 하는지 여부(소극) [3] 집행행위를 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호에 따라 부인하기 위한 요건으로 ‘채무자가 파산채권자들을 해함을 알면서도 변제한 것’과 사실상 동일하다고 볼 수 있는 특별한 사정이 있어야 하는지 여부(적극) 및 특별한 사정이 있다는 점에 대한 증명책임의 소재(=고의부인을 주장하는 관리인) / 집행행위 당시 채무자가 채무초과상태에 있었다는 것만으로 특별한 사정이 있다고 단정할 수 있는지 여부(소극)
Unofficial English translation
[1] Whether, where an act of a creditor or a third party may be equated with an act of the debtor notwithstanding the absence of any act by the debtor, such act may become the subject of avoidance under each item of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act (affirmative) [2] Whether, as a requirement for avoiding an act of execution under each item of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act, there must be special circumstances warranting treating it as an act of the debtor (negative) [3] Whether, as a requirement for avoiding an act of execution under subparagraph 1 of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act, there must be special circumstances that can be regarded as substantially identical with "the debtor having made payment knowing that it would be detrimental to the bankruptcy creditors" (affirmative), and the allocation of the burden of proof as to the existence of special circumstances (= the administrator asserting intentional avoidance) / whether it may be categorically asserted that special circumstances exist merely because the debtor was in a state of excess of liabilities over assets at the time of the act of execution (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 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the plaintiff.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제100조 제1항 [2] 채무자 회생 및 파산에 관한 법률 제100조 제1항, 제104조 [3] 채무자 회생 및 파산에 관한 법률 제100조 제1항 제1호, 제104조, 민사소송법 제288조
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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