Open Decision Ledger · Rehabilitation & bankruptcy
Guarantee debt after debt-to-equity conversion in rehabilitation
Supreme Court, May 13, 2022, 2019Da216299 (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: 사해행위취소
Official text on the National Law Information Center
Question
Where a rehabilitation plan settles a rehabilitation claim by debt-to-equity conversion, to what extent is the rehabilitation company's guarantor discharged, and by what standard is the market value of the new shares used to measure that discharge valued?
Holding
The guarantee debt is not extinguished to the same extent as the principal debt under the plan. Article 250(2)(i) of the Debtor Rehabilitation and Bankruptcy Act leaves the rehabilitation creditor's rights against the guarantor untouched, so the guarantee debt is discharged only in the order of allocation set by Article 479 of the Civil Act, and only up to the market value of the new shares the creditor took over, valued as at the effective date of the share issuance and capped at the amount of the claim settled by conversion. Nor is the plaintiff's claim to performance, being grounded in the statute, void as contrary to public order. The Court also rejected the plaintiff's contention that a share re-consolidation scheduled right after the conversion should move the valuation date.
Points at issue, verbatim
채무자 회생 및 파산에 관한 법률 제250조 제2항 제1호에 따르면 보증채무가 회생계획에서 정한 주채무의 내용과 동일하게 감축되거나 변경된다고 볼 수 없고, 을 재단이 법률에 근거하여 보증채무의 이행을 구하는 것이 사회질서에 반하는 법률행위로서 무효라고 볼 수도 없다는 이유로, 민법 제479조에서 정한 법정충당순서에 따라 보증채무의 소멸을 인정한 원심판결이 정당하다고 한 사례
Unofficial English translation
Pursuant to Article 250 (2), subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, the guaranteed obligation cannot be regarded as reduced or altered in the same manner as the contents of the principal obligation prescribed in the rehabilitation plan, and B Foundation's claim for performance of the guaranteed obligation on the basis of statute cannot be regarded as a juristic act contrary to public order and good morals and therefore void; on those grounds, the judgment of the court below, which recognized the extinction of the guaranteed obligation in accordance with the statutory order of allocation of payment under Article 479 of the Civil Act, was held proper in the present case
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
원심판결 이유를 관련 법리와 기록에 비추어 살펴보면, 원심판결은 정당하고 상고이유 주장과 같이 채무자회생법 제250조 제2항 제1호, 보증채무의 변제충당, 민법 제103조, 석명의무 등에 관한 법리오해 또는 심리미진 등의 잘못이 없다.
Unofficial English translation
Examining the reasons for the judgment of the court below in light of the relevant legal principles and the records, the judgment of the court below is proper, and it contains no error, such as misapprehension of legal principles or failure to exhaust deliberations, as to Article 250 (2), subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, the allocation of payment of the guaranteed obligation, Article 103 of the Civil Act, the duty of clarification, etc., as asserted in the grounds for final appeal.
Factors
- 주채무자인 회생회사의 회생계획에서 회생채권의 변제를 갈음하여 출자전환을 하기로 정한 경우
- 을 재단이 연대보증인인 병을 상대로 보증채무의 이행을 구하자 병이 회생계획에 따라 주채무가 소멸한 범위와 동일하게 보증채무도 소멸하였다고 주장한 사안에서
- 채무자 회생 및 파산에 관한 법률 제250조 제2항 제1호에 따르면 보증채무가 회생계획에서 정한 주채무의 내용과 동일하게 감축되거나 변경된다고 볼 수 없고
- 을 재단이 법률에 근거하여 보증채무의 이행을 구하는 것이 사회질서에 반하는 법률행위로서 무효라고 볼 수도 없다는 이유로
- 민법 제479조에서 정한 법정충당순서에 따라 보증채무의 소멸을 인정한 원심판결이 정당하다고 한 사례
Unofficial English translation
• Where the rehabilitation plan of a rehabilitation company, which is the principal debtor, provides for a debt-to-equity swap in lieu of payment of rehabilitation claims
• In a case where, when B Foundation sought performance of the guaranteed obligation from C, a joint and several guarantor, C asserted that the guaranteed obligation had been extinguished to the same extent as the principal obligation had been extinguished under the rehabilitation plan
• Pursuant to Article 250 (2), subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, the guaranteed obligation cannot be regarded as reduced or altered in the same manner as the contents of the principal obligation prescribed in the rehabilitation plan
• On the grounds that B Foundation's claim for performance of the guaranteed obligation on the basis of statute cannot be regarded as a juristic act contrary to public order and good morals and therefore void
• A case in which the judgment of the court below, which recognized the extinction of the guaranteed obligation in accordance with the statutory order of allocation of payment under Article 479 of the Civil Act, was held proper
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 10. 14. 선고 2010다48042 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 2010Da48042 decided October 14, 2010.
Decisions referred to
[1] 대법원 2010. 10. 14. 선고 2010다48042 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the market value of the new shares moved sharply between the effective date of issuance and the share re-consolidation, would any circumstance justify moving the valuation date away from the effective date of issuance?
A later decision departing from Supreme Court Decision 2010Da48042, which this decision followed, would require the entry to be read again. So would an amendment to Article 250(2) of the Debtor Rehabilitation and Bankruptcy Act or to Article 479 of the Civil Act on the order of allocation.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the market value of the new shares moved sharply between the effective date of issuance and the share re-consolidation, would any circumstance justify moving the valuation date away from the effective date of issuance?” vs Independent “What valuation method should determine the market value of newly issued shares when no reliable trading price exists?”
The primary asks what circumstances could justify moving the valuation date after a sharp price change, while the independent asks which valuation method applies when no reliable trading price exists.
채무자 회생 및 파산에 관한 법률 제250조 제2항 제1호에 따르면 보증채무가 회생계획에서 정한 주채무의 내용과 동일하게 감축되거나 변경된다고 볼 수 없고, 을 재단이 법률에 근거하여 보증채무의 이행을 구하는 것이 사회질서에 반하는 법률행위로서 무효라고 볼 수도 없다는 이유로, 민법 제479조에서 정한 법정충당순서에 따라 보증채무의 소멸을 인정한 원심판결이 정당하다고 한 사례Raw 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 Seoul High Court, in its judgment of 18 January 2019 (2018Na2023160), held that where a rehabilitation plan settles a rehabilitation claim by debt-to-equity conversion, the guarantee debt is not extinguished to the same extent as the principal debt, because Article 250(2)(i) of the Debtor Rehabilitation and Bankruptcy Act leaves the creditor's rights against the guarantor unaffected. It therefore found no ground to treat the plaintiff's claim to performance as void under Article 103 of the Civil Act, and recognised the discharge of the guarantee debt only in the order of allocation set by Article 479 of the Civil Act. It also rejected the plaintiff's argument that, where a share re-consolidation was scheduled right after the conversion, the market value of the new shares had to be assessed as at the day of re-consolidation rather than the effective date of issuance.
Supreme Court standard: The Supreme Court held the lower judgment justified, though parts of its reasoning were deficient, finding no error in the law on the valuation date affecting the outcome. On the plaintiff's appeal, it held that the court below was right to reject the contention that the valuation date must be the day of the share re-consolidation. On the defendants' appeal, it held that the appellate reasoning correctly applied Article 250(2)(i), the rules on allocation of payment to the guarantee debt and Article 103 of the Civil Act, and dismissed all the appeals, with the Justices unanimous.
Distinguishing conditions
- A suretyship to which a statute expressly carves out an exception to Article 250(2) of the Debtor Rehabilitation and Bankruptcy Act, such as Article 74-2 of the Small and Medium Enterprise Promotion Act, since the Regional Credit Guarantee Foundation Act has no such provision.
- A rehabilitation plan that settles the rehabilitation claim by repayment rather than by debt-to-equity conversion, so that no new shares are issued and there is no share value to assess.
- A case in which the claim to performance of the guarantee debt is not grounded in the statute, since the Court relied on the plaintiff's statutory basis in finding no violation of public order.
Record verification notes
Set the file against three points before relying on this decision: whether the suretyship falls within a statutory exception to Article 250(2), the effective date of the new share issuance and the market value of the shares the creditor actually took over, and whether the amount converted exceeds the market value assessed. Also check which grounds were raised in the court below, since the defendants' remaining appeal grounds were rejected as raised for the first time on appeal.
From the official text
Points at issue
[1] 주채무자인 회생회사의 회생계획에서 회생채권의 변제를 갈음하여 출자전환을 하기로 정한 경우, 회생회사의 보증인이 부담하는 보증채무가 소멸하는 범위 및 이때 보증채무의 소멸 범위를 산정하기 위한 신주의 시가를 평가하는 시점(=신주발행의 효력발생일) [2] 갑 주식회사에 대한 회생절차에서 을 신용보증재단의 갑 회사에 대한 회생채권 일부에 대하여 변제를 갈음하여 출자전환이 이루어졌는데, 을 재단이 연대보증인인 병을 상대로 보증채무의 이행을 구하자 병이 회생계획에 따라 주채무가 소멸한 범위와 동일하게 보증채무도 소멸하였다고 주장한 사안에서, 채무자 회생 및 파산에 관한 법률 제250조 제2항 제1호에 따르면 보증채무가 회생계획에서 정한 주채무의 내용과 동일하게 감축되거나 변경된다고 볼 수 없고, 을 재단이 법률에 근거하여 보증채무의 이행을 구하는 것이 사회질서에 반하는 법률행위로서 무효라고 볼 수도 없다는 이유로, 민법 제479조에서 정한 법정충당순서에 따라 보증채무의 소멸을 인정한 원심판결이 정당하다고 한 사례
Unofficial English translation
[1] Where the rehabilitation plan of a rehabilitation company, which is the principal debtor, provides for a debt-to-equity swap in lieu of payment of rehabilitation claims, the scope in which the guaranteed obligation borne by the guarantor of the rehabilitation company is extinguished, and the point in time at which the market value of the new shares is appraised in order to calculate the scope of extinction of the guaranteed obligation at that time (= the effective date of issuance of the new shares) [2] A case in which, in the rehabilitation proceedings of Company A, a debt-to-equity swap was effected in lieu of payment as to part of B Credit Guarantee Foundation's rehabilitation claim against Company A, and where, when B Foundation sought performance of the guaranteed obligation from C, a joint and several guarantor, C asserted that the guaranteed obligation had been extinguished to the same extent as the principal obligation had been extinguished under the rehabilitation plan, the judgment of the court below, which recognized the extinction of the guaranteed obligation in accordance with the statutory order of allocation of payment under Article 479 of the Civil Act, was held proper on the grounds that, pursuant to Article 250 (2), subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, the guaranteed obligation cannot be regarded as reduced or altered in the same manner as the contents of the principal obligation prescribed in the rehabilitation plan, and that B Foundation's claim for performance of the guaranteed obligation on the basis of statute cannot be regarded as a juristic act contrary to public order and good morals and therefore void
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 원고의 상고로 인한 부분은 원고가, 피고들의 상고로 인한 부분은 피고들이 각 부담한다.
Unofficial English translation
All appeals are dismissed. As to the court costs incurred by the plaintiff's final appeal, the plaintiff shall bear them; as to the court costs incurred by the defendants' final appeal, the defendants shall each bear them.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제206조 제1항, 제250조 제2항, 민법 제428조, 제430조, 제466조 [2] 채무자 회생 및 파산에 관한 법률 제250조 제2항 제1호, 민법 제103조, 제428조, 제430조, 제479조, 중소기업진흥에 관한 법률 제74조의2
Read 2026-10-25 · Cross-read 2026-10-25. 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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