Open Decision Ledger · Civil obligations & remedies
Guarantee intent in name-lending and the scope of creditor avoidance
Supreme Court, June 30, 2022, 2020Da271926 (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 name-lender merely permitted another to carry on business under his name or business name, may Article 442(1) of the Civil Act be applied or applied by analogy to give him a right of prior recourse against the principal debtor without a claim and proof that the nominal borrower asked him to become guarantor, and must separate judgments order cancellation and restoration for each of several creditors suing in parallel actions?
Holding
No. A recourse claimant under Article 442(1) of the Civil Act must claim and prove that he became guarantor at the principal debtor's request, and without such circumstances Article 442(1) has no room to apply; permitting another to use one's name or business name alone does not show that the nominal borrower asked the name-lender to guarantee. On the other hand, each creditor holding the requirements of the creditor's avoidance right has that right as its own, so where several creditors have brought avoidance and restoration actions and several cases are pending, each case must be decided by a judgment ordering cancellation and restoration as claimed in it.
Points at issue, verbatim
타인에게 자기의 성명 또는 상호를 사용하여 영업할 것을 허락하였다는 사정만으로 명의차용인이 명의대여자에게 보증인이 되어달라는 부탁을 하였다는 점에 관한 주장·증명이 없는 상태에서 곧바로 수탁보증인의 사전구상권에 관한 민법 제442조 제1항이 적용 또는 유추적용된다고 볼 수 있는지 여부(소극)
Unofficial English translation
whether, where there is no assertion or proof to the effect that the name borrower asked the name lender to become a surety, Article 442 (1) of the Civil Act concerning an entrusted surety's advance right to reimbursement can be regarded as directly applied or applied mutatis mutandis merely from the circumstance that one permitted another person to use one's own name or trade name in conducting business (negative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 피고들 패소 부분 중 원고 1에 대한 부분을 파기하고, 이 부분 사건을 인천지방법원에 환송한다. 피고들의 원고 2에 대한 상고를 모두 기각한다.
Unofficial English translation
Among the losing portions of the defendants in the judgment of the court below, the portion as to Plaintiff 1 is reversed, and this part of the case is remanded to the Incheon District Court. All appeals by the defendants as to Plaintiff 2 are dismissed.
Form of the test
Elements stated Stated in the decision
채권자취소권의 요건을 갖춘 각 채권자는 고유의 권리로서 채무자의 재산처분 행위를 취소하고 그 원상회복을 구할 수 있으므로
Unofficial English translation
Because each creditor who satisfies the requirements for the creditor's right of revocation may, by virtue of his or her own right, seek revocation of the debtor's act of disposition of property and restoration to the original state,
Factors
- 보증의사의 존재나 보증 범위를 판단하는 방법
- 수탁보증인이 사전구상권을 행사하기 위해 주장·증명하여야 할 사항(=주채무자의 부탁으로 보증인이 되었다는 사실)
- 타인에게 자기의 성명 또는 상호를 사용하여 영업할 것을 허락하였다는 사정만으로
- 여러 명의 채권자가 사해행위취소 및 원상회복청구의 소를 제기하여 여러 개의 소송이 계속 중인 경우
Unofficial English translation
• Method of determining the existence of the intent to become a surety or the scope of the suretyship
• Matters that an entrusted surety must assert and prove in order to exercise an advance right to reimbursement (=the fact that one became a surety at the request of the principal debtor)
• Merely from the circumstance that one permitted another person to use one's own name or trade name in conducting business
• Where several creditors have filed lawsuits seeking revocation of a fraudulent act and restoration to the original state and several lawsuits are pending
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 10. 29. 선고 2009다52571 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 2009Da52571 decided October 29, 2009
Decisions referred to
[1] 대법원 2009. 10. 29. 선고 2009다52571 판결 / [2] 대법원 2008. 6. 12. 선고 2008다8690, 8706 판결(공2008하, 968)
Burden of proof
The party asserting Stated in the decision
수탁보증인이 사전구상권을 행사하기 위해서는 주채무자의 부탁으로 보증인이 되었다는 사실을 주장·증명하여야 하고
Unofficial English translation
In order for an entrusted surety to exercise an advance right to reimbursement, he or she must assert and prove the fact that he or she became a surety at the request of the principal debtor, and
Open question and revisit condition
Does a subsequent recourse claim under Article 442(1) of the Civil Act likewise require the recourse claimant to plead and prove that the principal debtor asked him to become guarantor?
The remand judgment's recalculation of the scope of Plaintiff 1's recourse and of the cancellation and value damages will show how the removal of the prior recourse award changes the figures. A later decision on when name-lending supports an inference of guarantee intent, on the requirements for subsequent recourse, or an amendment to Article 442(1) of the Civil Act, would call for this entry to be read again.
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 “Does a subsequent recourse claim under Article 442(1) of the Civil Act likewise require the recourse claimant to plead and prove that the principal debtor asked him to become guarantor?” vs Independent “What amounts of reimbursement, avoidance, and monetary restitution should be recognized for plaintiff 1 on remand?”
The primary reading asks whether a subsequent recourse claim also requires proof of the principal debtor's request, while the independent reading asks for the amounts recoverable on remand for plaintiff 1.
타인에게 자기의 성명 또는 상호를 사용하여 영업할 것을 허락하였다는 사정만으로 명의차용인이 명의대여자에게 보증인이 되어달라는 부탁을 하였다는 점에 관한 주장·증명이 없는 상태에서 곧바로 수탁보증인의 사전구상권에 관한 민법 제442조 제1항이 적용 또는 유추적용된다고 볼 수 있는지 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 Incheon District Court, in its judgment of 23 September 2020 (2019Na62096), took as its premise that Plaintiff 1, who had transferred the '○○○ Telecom' mobile phone shop to Defendant 1 on 1 January 2014 on the footing that Defendant 1 would bear all debts arising from the business, kept the business in his own name and was therefore a name-lender, and then judged whether prior and subsequent recourse had arisen. It held that Plaintiff 1's recourse claim against Defendant 1 was highly likely to arise in the near future, so it was a claim to be preserved, and, because restoration of the real estate subscription right could not be had, it ordered value damages with a shared secured value of KRW 200,000,000, the market price of KRW 540,000,000 less the lease deposit of KRW 340,000,000.
Supreme Court standard: The Supreme Court held that guarantee intent is a matter of interpreting the parties' will and finding facts, weighed from the motive and circumstances of their involvement, its form and content, the purpose pursued and trade usage, and that because a guarantee is given only in special circumstances its existence and scope must be strictly confined. Since Article 442(1) of the Civil Act conditions prior recourse on becoming guarantor at the principal debtor's request, and the record showed no expression of guarantee intent or any circumstance from which its existence or scope could be inferred, Plaintiff 1 could not exercise prior recourse against Defendant 1; the court below had erred in law and beyond the limits of free evaluation in assuming the contrary from those circumstances alone. It found no error in the findings on subsequent recourse, on the elements of the avoidance act and the timing of the claim to be preserved, or on the shared secured value, and reversed only the part as to Plaintiff 1, remanding to the Incheon District Court, while dismissing the defendants' appeals against Plaintiff 2.
Distinguishing conditions
- A case in which the recourse claimant pleads and proves that the principal debtor asked him to become guarantor, so that Article 442(1) of the Civil Act applies on its own terms.
- A case in which the record contains an expression of guarantee intent by the name-lender, or circumstances from which the existence and scope of that intent can be inferred.
- A single avoidance action brought by one creditor, in which the question of separate judgments for parallel actions by several creditors does not arise.
Record verification notes
Set against the file each piece of evidence said to show the request to become guarantee, since the Court relied on the absence of any such expression or circumstance in the record, not on the name-lending itself. Keep prior recourse separate from subsequent recourse, which the Court left intact without deciding the same question of claim and proof for it, and check whether the cancellation scope can be specified for each plaintiff, since the Court limited its reversal to that ground.
From the official text
Points at issue
[1] 보증의사의 존재나 보증 범위를 판단하는 방법 / 수탁보증인이 사전구상권을 행사하기 위해 주장·증명하여야 할 사항(=주채무자의 부탁으로 보증인이 되었다는 사실) / 타인에게 자기의 성명 또는 상호를 사용하여 영업할 것을 허락하였다는 사정만으로 명의차용인이 명의대여자에게 보증인이 되어달라는 부탁을 하였다는 점에 관한 주장·증명이 없는 상태에서 곧바로 수탁보증인의 사전구상권에 관한 민법 제442조 제1항이 적용 또는 유추적용된다고 볼 수 있는지 여부(소극) [2] 여러 명의 채권자가 사해행위취소 및 원상회복청구의 소를 제기하여 여러 개의 소송이 계속 중인 경우, 각 소송에서 채권자의 청구에 따라 사해행위의 취소 및 원상회복을 명하는 판결을 선고하여야 하는지 여부(적극)
Unofficial English translation
[1] How to determine the existence of intent to guarantee or the scope of a guarantee / Matters that an entrusted surety must allege and prove to exercise the advance right to reimbursement (= the fact of having become a surety at the principal debtor's request) / Whether, in a case where a person has permitted another person to use one's own name or trade name in conducting business, and there is no assertion or proof to the effect that the name borrower asked the name lender to become a surety, Article 442 (1) of the Civil Act concerning an entrusted surety's advance right to reimbursement can be regarded as directly applied or applied mutatis mutandis to the advance right to reimbursement of an entrusted surety merely from the circumstance that one permitted another person to use one's own name or trade name in conducting business (negative) [2] Whether, where several creditors have filed lawsuits seeking revocation of a fraudulent act and restoration to the original state and several lawsuits are pending, a judgment ordering revocation of the fraudulent act and restoration to the original state must be pronounced in each lawsuit in accordance with the creditor's claim (affirmative)
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
원심판결의 피고들 패소 부분 중 원고 1에 대한 부분을 파기하고, 이 부분 사건을 인천지방법원에 환송한다. 피고들의 원고 2에 대한 상고를 모두 기각한다. 상고비용 중 원고 2와 피고들 사이에 생긴 부분은 피고들이 부담한다.
Unofficial English translation
Among the losing portions of the defendants in the judgment of the court below, the portion as to Plaintiff 1 is reversed, and this part of the case is remanded to the Incheon District Court. All appeals by the defendants as to Plaintiff 2 are dismissed. The portion of the appeal costs incurred between Plaintiff 2 and the defendants shall be borne by the defendants.
Provisions referred to
[1] 민법 제105조, 제428조, 제442조 제1항 [2] 민법 제406조 제1항
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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