Open Decision Ledger · Rehabilitation & bankruptcy
Relative effect of the bankruptcy trustee's exercise of the right of avoidance and whether a first-tier subcontractor who requested direct payment qualifies as a third party
Translated from the Korean original. Read the Korean
Supreme Court, July 17, 2025, 2022Da231717 (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: 공탁금출급청구권확인
Official text on the National Law Information Center
Question
Where the bankruptcy trustee has avoided an assignment of claims, may a contractor who, after the assignment, requested direct payment under the Subcontracting Act assert a claim for direct payment against the ordering party by invoking the effect of the exercise of the right of avoidance?
Holding
The effect of the exercise of the right of avoidance arises only relatively, between the bankruptcy estate and the counterparty. Since the scope of third parties is not limited to persons who have acquired a new right on the basis of the legal effects of the avoided act, it was held that a contractor who is not a counterparty to the exercise of the right of avoidance cannot assert a claim for direct payment on the ground that the assignment of claims is void.
Points at issue, verbatim
채무자 회생 및 파산에 관한 법률에 따른 부인권 행사의 효과가 제3자에게 미치는지 여부(원칙적 소극) 및 이때 제3자의 범위가 부인의 대상이 될 행위에서 생긴 법률효과를 기초로 새로운 권리를 취득한 자 등으로 한정되는지 여부(소극)
Unofficial English translation
Whether the effect of the exercise of the right of avoidance under the Debtor Rehabilitation and Bankruptcy Act extends to third parties (in principle, negative) and whether, on such occasion, the scope of third parties is limited to persons who have acquired new rights based on the legal effects arising from the act subject to avoidance, etc. (negative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Suwon District Court.
Form of the test
Existing test applied Read from the decision
앞서 본 사실관계를 이러한 법리에 비추어 보면
Unofficial English translation
Examining the facts as stated above in light of the foregoing legal principle,
Factors
- 부인의 대상이 될 행위에서 생긴 법률효과를 기초로 새로운 권리를 취득한 자
- 하도급을 맡은 부분에 대한 공사대금 직접 지급을 요청하여
- 병 회사는 부인권 행사의 상대방이 아니고
- 다른 특별한 사정이 있다고 보기도 어려우므로
Unofficial English translation
• persons who have acquired new rights based on the legal effects arising from the act subject to avoidance
• requested direct payment of the construction price for the portion entrusted as a subcontract
• Company C is not the counterparty to the exercise of the right of avoidance, and
• it is difficult to find any other special circumstances
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2005. 12. 22. 선고 2003다55059 판결
Unofficial English translation
Supreme Court Decision 2003Da55059 decided December 22, 2005
Decisions referred to
[1] 대법원 2005. 12. 22. 선고 2003다55059 판결(공2006상, 155)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In what circumstances would other special circumstances be recognized that cause the effect to extend even to a third party who is not a counterparty to the exercise of the right of avoidance?
This reading will be re-examined if the provisions on the effect of avoidance under Article 397 of the Debtor Rehabilitation and Bankruptcy Act or the requirements for direct payment under Article 14 of the Subcontracting Act are amended.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading by another line of AI (GPT-6 Astra), which read only the original text without seeing the first 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 plaintiff did not qualify as a third party because the plaintiff was not a person who had entered into a new juristic act on the basis of the assignment of claims in this case, and, finding that the effect of the defendant's exercise of the right of avoidance extended to the plaintiff, held that the plaintiff could directly claim the subcontract price from the construction company, which was the ordering party.
Supreme Court standard: The Supreme Court took the view that the relative effect, by limiting the effect of avoidance to the scope necessary for the restoration of the bankruptcy estate, is intended to protect transaction security, and that therefore the scope of third parties cannot be limited to acquirers of new rights. The plaintiff had merely requested direct payment after the assignment of claims and was not a counterparty to the exercise of the right of avoidance, and so could not invoke its effect; finding that the court below had misapprehended the legal principles concerning the relative effect of the right of avoidance, the Supreme Court reversed and remanded the case.
Distinguishing conditions
- Where the asserting party is a counterparty to the exercise of the right of avoidance or stands in the same position as the bankruptcy estate and is subject to the effect of avoidance
- Where other special circumstances indicating that the effect of the exercise of the right of avoidance extends to third parties appear in the record
- Where the contractor's request for direct payment reached the ordering party before the notice of assignment of claims, so that the claim for direct payment arises without invoking the right of avoidance
Record verification notes
Before asserting the same conclusion, first confirm the order in which the request for direct payment and the notice of assignment of claims reached the ordering party, and whether the asserting party was a counterparty to the lawsuit over the exercise of the right of avoidance, or whether there are special circumstances justifying an extension of the effect.
From the official text
Points at issue
[1] 채무자 회생 및 파산에 관한 법률에 따른 부인권 행사의 효과가 제3자에게 미치는지 여부(원칙적 소극) 및 이때 제3자의 범위가 부인의 대상이 될 행위에서 생긴 법률효과를 기초로 새로운 권리를 취득한 자 등으로 한정되는지 여부(소극) [2] 갑 주식회사가 을 주식회사에 공사를 도급하였고 을 회사는 공사 일부를 병 주식회사에 하도급하였는데, 그 후 을 회사가 갑 회사에 대한 공사대금채권 일부를 정 주식회사에 양도하였고, 병 회사는 갑 회사에 하도급을 맡은 부분에 대한 공사대금 직접 지급을 요청하여 갑 회사가 피공탁자를 을 회사, 병 회사, 정 회사 등으로 지정하여 공사대금을 공탁하였으며, 을 회사가 파산선고를 받은 후 파산관재인이 위 채권양도에 대하여 부인권을 행사하자, 병 회사가 위 부인권 행사로 채권양도가 소급적으로 없었던 상태가 되므로 갑 회사에 하도급대금을 직접 청구할 수 있다고 주장하면서 공탁금의 배분을 주장한 사안에서, 병 회사는 부인권 행사의 상대방이 아니고 다른 특별한 사정이 있다고 보기도 어려우므로 부인권 행사의 효력으로 위 채권양도가 무효임을 들어 자신의 직접지급청구권을 주장할 수 없다고 한 사례
Unofficial English translation
[1] Whether the effect of the exercise of the right of avoidance under the Debtor Rehabilitation and Bankruptcy Act extends to third parties (in principle, negative) and whether, on such occasion, the scope of third parties is limited to persons who have acquired new rights based on the legal effects arising from the act subject to avoidance, etc. (negative) [2] Company A entered into a construction contract with Company B, and Company B subcontracted part of the construction works to Company C; thereafter, Company B assigned part of its construction price claim against Company A to Company D, and Company C requested direct payment of the construction price for the portion of the works entrusted to it as a subcontract, whereupon Company A designated as depositees Company B, Company C, Company D, etc. and deposited the construction price; after Company B was adjudicated bankrupt, the bankruptcy trustee exercised the right of avoidance in respect of the aforesaid assignment of claim, and Company C asserted that, by reason of the exercise of the right of avoidance, the assignment of claim was retroactively treated as never having occurred and that it could therefore claim the subcontract price directly against Company A, thereby asserting a claim to the distribution of the deposited amount; a case in which it was held that, since Company C is not the counterparty to the exercise of the right of avoidance and it is difficult to find any other special circumstances, Company C cannot assert its right to claim direct payment by invoking the invalidity of the aforesaid assignment of claim on the basis of the effect of the exercise of the right of avoidance
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
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Suwon District Court.
Provisions referred to
[1] 채무자 회생 및 파산에 관한 법률 제391조, 제397조 제1항 [2] 채무자 회생 및 파산에 관한 법률 제391조, 제397조 제1항, 하도급거래 공정화에 관한 법률 제14조 제1항 제1호
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