Open Decision Ledger · Civil obligations & remedies
Guarantor's paying capacity excluded, subrogation carries the revocation right
Supreme Court, Dec. 4, 2025, 2025Da211379 (judgment)
Case name: 구상금등청구의소
Official text on the National Law Information Center
Question
Where a creditor's revocation right secures a claim that is backed by a personal security such as a guarantee, must the guarantor's paying capacity be taken into account in deciding whether the principal debtor's act is a fraudulent act, including where the security is a statutory credit guarantee given by a guarantee fund, and may a guarantor who performed the guarantee after the act and took the claim by legal subrogation exercise the revocation right the original creditor could have exercised?
Holding
No, and yes. The guarantor's paying capacity is not a factor in deciding whether the principal debtor's act is a fraudulent act; only the debtor's own assets matter, and that is so even where the personal security is a credit guarantee given under a statute by a guarantee fund. Where the original creditor's claim already existed when the act was done, a guarantor who performed the guarantee after the act and took the claim by legal subrogation may still exercise the revocation right the original creditor could have exercised, and the moment of transfer does not create a new claim secured by that right.
Summary of the holding, verbatim
채권자취소권의 피보전채권에 보증인 등의 인적 담보가 붙어 있다고 하더라도, 주채무자의 법률행위가 사해행위에 해당하는지 여부를 판단할 때 보증인 등의 변제자력은 고려할 요소가 아니고, 오로지 주채무자 자신의 자력만이 문제 된다.
Unofficial English translation
Even where the claim to be preserved under the creditor's right of revocation is secured by personal security such as a surety, the solvency of the surety or the like is not a factor to be considered in determining whether the principal debtor's juristic act constitutes a fraudulent act, and only the principal debtor's own assets are at issue.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Form of the test
Elements stated Stated in the decision
주채무자의 법률행위가 사해행위에 해당하는지 여부를 판단할 때 보증인 등의 변제자력은 고려할 요소가 아니고, 오로지 주채무자 자신의 자력만이 문제 된다
Unofficial English translation
in determining whether the principal debtor's juristic act constitutes a fraudulent act, the solvency of the surety or the like is not a factor to be considered, and only the principal debtor's own assets are at issue
Factors
- 채권자취소권의 피보전채권에 보증인 등의 인적 담보가 붙어 있다고 하더라도
- 오로지 주채무자 자신의 자력만이 문제 된다
- 이는 인적 담보의 종류가 관련 법률에 근거한 보증기금의 신용보증이라고 하더라도 달리 볼 것이 아니다.
- 종래 채권자가 가지고 있던 채권이 사해행위 이전에 성립되어 있는 이상
- 보증인은 종래 채권자가 행사할 수 있었던 채권자취소권을 행사할 수 있고
Unofficial English translation
• Even where the claim to be preserved under the creditor's right of revocation is secured by personal security such as a surety,
• only the principal debtor's own assets are at issue
• The same holds true even where the type of personal security is a credit guarantee of a guarantee fund based on the relevant statutes.
• provided that the claim formerly held by the creditor arose before the fraudulent act,
• the surety may exercise the creditor's right of revocation that the former creditor was able to exercise, and
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2007. 5. 31. 선고 2005다61195 판결
Unofficial English translation
Supreme Court Decision 2005Da61195 decided May 31, 2007
Decisions referred to
대법원 2007. 5. 31. 선고 2005다61195 판결, 대법원 2012. 2. 9. 선고 2011다77146 판결(공2012상, 440)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the credit guarantee was given after the principal debtor's act rather than before it, does a guarantor who later paid still inherit the creditor's revocation right?
The remand judgment from the Seoul Central District Court, once it decides whether the assignment of the deposit return claim was a fraudulent act against the bank on the debtor's own assets, will show how the rule applies to these facts. Any amendment to Articles 406, 428, 481 or 482 of the Civil Act, or a later decision treating statutory credit guarantees differently, calls 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) · 2026-10-24
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 credit guarantee was given after the principal debtor's act rather than before it, does a guarantor who later paid still inherit the creditor's revocation right?” vs Independent “How far may a guarantor exercise the avoidance right after paying only part of the guaranteed debt?”
The primary reading asks about a guarantee provided after the fraudulent act, while the independent reading asks about the scope of avoidance following partial payment.
채권자취소권의 피보전채권에 보증인 등의 인적 담보가 붙어 있다고 하더라도, 주채무자의 법률행위가 사해행위에 해당하는지 여부를 판단할 때 보증인 등의 변제자력은 고려할 요소가 아니고, 오로지 주채무자 자신의 자력만이 문제 된다.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 Seoul Central District Court, in its judgment of 12 March 2025 (2024Na37710), held that the plaintiff bore credit guarantee liability for the loan claim when the assignment was made, that this was a personal security which certainly secured satisfaction of the loan claim, and that accordingly, just as a real security securing a right of priority does, no fraudulent act arose to the extent the plaintiff's guarantee liability reached. On that basis it denied the plaintiff a creditor's revocation right with the subrogated loan claim as the secured claim.
Supreme Court standard: The Supreme Court held that the reading could not be accepted. A personal security on the secured claim does not prevent the debtor's act from being a fraudulent act, because only the principal debtor's own assets matter, and that holds for a statutory credit guarantee by a guarantee fund. It added that, since the bank's loan claim already existed when the assignment was made, and if the assignment was a fraudulent act against the bank, the plaintiff took the loan claim together with the revocation right by legal subrogation on paying the debt, so the plaintiff may exercise both within the range of its own recourse against the first-instance co-defendant company. Finding a misapprehension of the law that affected the outcome, it set the judgment aside and remanded the case, without ruling on the remaining grounds of appeal, on the unanimous opinion of the Justices concerned.
Distinguishing conditions
- A case in which the principal debtor's own assets were enough when the act was done, since only the debtor's own assets are weighed.
- A case in which the claim secured by the revocation right came into existence only after the debtor's act, since the Court relied on the claim having been established before it.
- A case in which the guarantor has not yet performed the guarantee liability, so that no claim has passed to it by legal subrogation.
Record verification notes
Fix first the date the loan claim was created and the date of the act said to be fraudulent, since the Court's rule on the guarantor turns on the claim having existed before the act. Then gather the plaintiff's own materials on the debtor's assets at the time of the act, because the guarantor's paying capacity, here a credit guarantee of KRW 190,000,000 at a 95% ratio under the Technology Guarantee Fund Act, is not a factor. Finally check the amount actually paid by subrogation, KRW 187,861,260 here, and the range of the plaintiff's own recourse against the debtor, since the exercise of both the loan claim and the revocation right is confined to that range, and set Articles 406, 428, 481 and 482 of the Civil Act against the file.
From the official text
Points at issue
채권자취소권의 피보전채권에 보증인 등의 인적 담보가 있는 경우, 주채무자의 법률행위가 사해행위에 해당하는지 여부를 판단할 때 보증인 등의 변제자력을 고려하여야 하는지 여부(소극) 및 이는 인적 담보의 종류가 관련 법률에 근거한 보증기금의 신용보증인 경우에도 마찬가지인지 여부(적극) / 사해행위 이전에 성립한 채권에 대하여 사해행위 이후 보증인이 보증책임을 이행하여 변제자대위 법리에 따라 보증인에게 채권이 이전된 경우, 보증인은 종래 채권자가 행사할 수 있었던 채권자취소권을 행사할 수 있는지 여부(적극)
Unofficial English translation
Whether, where the claim to be preserved under the creditor's right of revocation is secured by personal security such as a surety, the solvency of the surety or the like must be taken into consideration in determining whether the principal debtor's juristic act constitutes a fraudulent act (negative), and whether the same holds true even where the type of personal security is a credit guarantee of a guarantee fund based on the relevant statutes (affirmative) / Where, with respect to a claim that arose before the fraudulent act, the surety performs the suretyship liability after the fraudulent act and the claim is transferred to the surety under the legal principle of subrogation of a surety who has performed, whether the surety may exercise the creditor's right of revocation that the former creditor was able to exercise (affirmative)
Summary of the holding
채권자취소권의 피보전채권에 보증인 등의 인적 담보가 붙어 있다고 하더라도, 주채무자의 법률행위가 사해행위에 해당하는지 여부를 판단할 때 보증인 등의 변제자력은 고려할 요소가 아니고, 오로지 주채무자 자신의 자력만이 문제 된다. 이는 인적 담보의 종류가 관련 법률에 근거한 보증기금의 신용보증이라고 하더라도 달리 볼 것이 아니다. 한편 종래 채권자가 가지고 있던 채권이 사해행위 이전에 성립되어 있는 이상, 주채무자의 사해행위 이후에 보증인이 보증책임을 이행하여 변제자대위 법리에 따라 보증인에게 채권이 이전되었다고 하더라도 보증인은 종래 채권자가 행사할 수 있었던 채권자취소권을 행사할 수 있고, 채권이 이전된 시점에 채권자취소권의 피보전채권이 새로이 발생되었다고 할 수 없다.
Order
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Provisions referred to
민법 제406조, 제428조, 제481조, 제482조
Read 2026-10-24 · Cross-read 2026-10-24. 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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