[2] Whether an act by a creditor or a third party may be subject to avoidance (affirmative with qualification)

[3] In a case where Company A entered into an agreement with Company B to transfer claims to Company B due to the shortage of deposits when the due date of promissory notes delivered to Company B was extended, and Company B notified Company B of the transfer of claims by filling out the blanks of the transfer agreement and the notice of the transfer of claims issued from Company B, and Company B notified Company B of the transfer of claims to Company B, the case affirming the judgment below holding that the above agreement constitutes a biased act of avoiding the principle of equality of creditors in the bankruptcy procedure by offering collateral to a specific creditor only because it constitutes “transfer of a pre-paid collective claim” and constitutes a biased act of avoiding the principle of equality of creditors in the bankruptcy procedure, on the grounds that the declaration of the completion of the pre-paid agreement by Company B constitutes an object of avoidance under Article 391 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act, since there are special circumstances to suggest that the act of Company A is substantially identical to the act of Company B

[4] In a case where the act subject to the avoidance under the bankruptcy procedure is socially reasonable and inevitable, and it can be deemed that a general bankruptcy creditor should bear the reduction of the bankruptcy estate or the unfair business practices, whether the act is subject to the exercise of the avoidance power (negative), and the standard for determining whether the act is reasonable

[5] The case holding that in a case where Company A entered into an agreement with Company B to transfer claims to Company B due to the extension of the payment date of promissory notes delivered to Company B due to the shortage of deposits, and Company B notified Company B of the transfer of claims by filling out the blanks of the transfer contract delivered by Company A and the notice of the transfer of claims, and Company B notified Company B of the transfer of claims by filling out the blanks of the notice of the transfer of claims, and Company B’s declaration of the completion of the transfer of claims was the second default, the case holding that the above agreement cannot be deemed as a case where the general bankruptcy creditor is forced to suffer a decrease in the bankruptcy estate or an unfair business due to the inevitable and unavoidable reasons

[6] The burden of proving whether the beneficiary was unaware of the fact that the beneficiary did not harm the bankruptcy creditor at the time of the act subject to avoidance under Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (=beneficiary)

[2] According to Article 391 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act, the subject of avoidance, in principle, is the debtor's act. However, even if there was no debtor's act, in exceptional cases where there are grounds that the creditor or a third party's act is identical to the debtor's act due to special circumstances such as in collusion with the debtor, etc., the creditor or the third party's act may be subject to avoidance

[3] The case affirming the judgment below that Gap corporation's act of offering promissory notes from Eul corporation to deliver them to Eul corporation's customers Byung because it was extended due to the lack of deposits, and Eul corporation entered into an agreement to transfer Eul corporation's claims to Eul corporation's customers Byung as collateral, and Eul corporation notified Eul of the transfer of claims by filling out blanks of the notice of transfer and the notice of transfer of claims to Eul corporation at the time of the above agreement in order to be paid the cleaning price, and then Eul corporation suspended its business on the same day and was subject to disposition of credit transaction suspension, the above agreement is not an act of offering the right of representation to Eul corporation's creditors for the purpose of securing the right of assignment of claims, but it constitutes an act of offering the right of assignment of claims by offering the right of preference to the obligee Gap corporation's transfer of claims to secure the effectiveness of the right of assignment of claims, and thus, it constitutes an act of offering the right of assignment of claims by offering the right of assignment of claims to Gap corporation's creditors to complete the contract's right of assignment of claims.

[4] Even if the act subject to avoidance in the bankruptcy procedure is harmful to the bankruptcy creditor, there may be cases where it is recognized that the act in question was socially necessary, considerable, or inevitable, depending on individual and specific circumstances at the time of the act, and thus a general bankruptcy creditor should suffer the reduction of the bankruptcy estate or unfair business practices. In such exceptional cases, it shall not be subject to the exercise of the avoidance power under Article 391 of the Debtor Rehabilitation and Bankruptcy Act in light of the legal guiding ideology or the concept of justice, such as equality of creditors, protection of the debtor and coordination of the interests in bankruptcy. Here, the existence of reasonableness of the act should be determined specifically in light of the principle of good faith and the idea of fairness, in light of the debtor's property and business conditions at the time of the act, the purpose and motive of the act, etc., as well as the source of the repayment fund, relationship with the debtor and creditor, and whether the creditor in collusion with the debtor or forced the person to make a repayment

[5] The case holding that in a case where Company A, upon receiving a washing note from Company B due to the shortage of deposits, delivered a promissory note with respect to the payment amount, and entered into an agreement with Company B to transfer the payment amount to Company B to Company B as security, and Company B, upon receiving the payment amount from Company B, notified Company B of the transfer amount by filling out the blank portion of the contract for the transfer of claims and the notice of the transfer of claims, and Company B, upon receiving the payment amount, suspended its business on the day, and was subject to the disposition of credit transaction suspension since Company B’s expression of intent to complete the settlement of a large amount of promissory note, the act of concluding the above agreement with Company B, which was delivered to Company B and extended the payment date, is inevitable in society, and it cannot be viewed as an unfair bankruptcy creditor’s reduction or unfair bankruptcy estate due to a decrease in ordinary bankruptcy creditors, even if Company B did not pay a large amount of promissory note.

[6] Even if an act is subject to avoidance under Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, if the person who received the benefit was unaware of the fact that he would harm the bankruptcy creditor at the time of the act, it cannot be denied, but such beneficiary's bad faith is presumed as such, so the beneficiary bears the burden of proof of good faith.

1. As to the grounds of appeal Nos. 1 and 2

The "act that a debtor knows that the debtor causes damage to a bankruptcy creditor", which is an act subject to avoidance as prescribed by Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Act"), includes not only the act of reducing the bankruptcy estate by deviating from the debtor's general property, which is a joint security of all creditors, from the bankruptcy estate, but also the act of reducing the bankruptcy estate by deviating from the bankruptcy estate, and also the act of affecting the debtor's property relationship, such as repayment to a specific creditor or provision of a security, thereby favorable to a specific creditor in terms of

In addition, according to Article 391 subparag. 1 of the Act, the subject of avoidance is, in principle, an obligor’s act. However, even if there was no obligor’s act, in exceptional cases where there exist any special circumstances, such as the collusion with the obligor and any other special circumstances that make it identical to the obligor’s act, the obligee or the third party’s act may be subject to avoidance (see Supreme Court Decisions 2001Da46761, Jul. 9, 2002; 2003Da53497, Feb. 12, 2004, etc.).

According to the reasoning of the judgment below, the agreement of this case entered into between the Changjin Industrial Co., Ltd. (hereinafter “original Industry”) and the Plaintiff Youngjin Industrial Co., Ltd. (hereinafter “Plaintiff Youngjin Industrial”), is the so-called “transfer of unit bonds” for the purpose of transferring the rights to the Defendants of the Changjin Industrial in order to secure the obligation for cleaning for the Plaintiff Youngjin Industrial Co., Ltd., (hereinafter “Plaintiff Youngjin Industrial”), and at the same time granting the Plaintiff the right to complete the reservation to unilaterally complete the promise, and at the same time granting the Plaintiff the right of choice to choose the claim to be transferred and acquired as payment in substitutes among the bonds of the Changjin Industrial Co., Ltd., Ltd., the said Plaintiff’s exercise of the right to complete the reservation and the right to complete the reservation of this case’s case’s right to participate in the said act on behalf of the said Plaintiff for the effectiveness and convenience of the promise Industrial Co., Ltd., Ltd., and then, the said agreement constitutes a sudden agreement granting the said Plaintiff the right of representation to the said Plaintiff.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the requirements under Article 391 subparagraph 1 of the Act.

2. As to the third ground for appeal

Even if the act subject to avoidance in the bankruptcy procedure is harmful to the bankruptcy creditors, there may be cases where it can be said that the general bankruptcy creditors should suffer the reduction of the bankruptcy estate or the unfair business among the creditors because the act is deemed necessary, reasonable or inevitable in light of the individual and specific circumstances at the time of the act. In such exceptional cases, the act cannot be subject to the exercise of the avoidance power under Article 391 of the Act in light of the guiding ideology and the concept of justice of the law, such as equality of creditors, protection of the debtor and coordination of the interests in bankruptcy.

In addition, the reasonableness of the act should be specifically determined in light of the good faith principle and the idea of fairness based on not only the source of repayment fund, the relationship between the debtor and the creditor, whether the creditor in collusion with the debtor or exercised influence, such as forcing the debtor to repay, etc. (see, e.g., Supreme Court Decisions 2001Da78898, Aug. 23, 2002; 2009Da75291, May 13, 201).

According to the reasoning of the judgment below and the records, the Changjin Industries entered into the instant agreement with the Plaintiff Youngjin Corporation on March 31, 2008 that it would transfer the payment due to the shortage of deposits to the Plaintiff Youngjin Corporation, and the date of payment is about four months after the date of issuance of a tax invoice. Around April 21, 2008, when the payment due date is extended from the Plaintiff Youngjin Corporation, the payment due date is extended from April 27, 2008, the Plaintiff Youngjin Corporation entered into the instant agreement with the Defendant that it would transfer the obligation to the customer of the Changjin Industries to the Plaintiff Youngjin Corporation. The Plaintiff Youngjin Corporation would supplement the blank portion of the credit transfer contract and the notice of credit transfer from the Changjin Industries as of April 30, 2008, and it did not notify the Defendants of the fact that the notice of credit transfer was delivered to the Defendants on May 28, 2008, and that the notice of credit transfer was delivered to the Defendants by each of the Defendants 20.

In light of the above facts, it is difficult to view that the creative industry is likely to cause a large amount of promissory notes to be paid to the Plaintiff Young-jin Corporation, even if the due date for payment of promissory notes was not yet due to the failure to pay a large amount of promissory notes, the act of entering into the instant agreement with the Plaintiff Young-jin Corporation, one of the creditors, and it is socially reasonable and inevitable to view that it is a case where the general bankruptcy creditor should accept the reduction of the bankruptcy estate or the unfair business of the bankruptcy estate.

In the same purport, the court below's rejection of the plaintiffs' assertion that the expression of intent to complete the agreement and the reservation in this case constitutes a socially significant act and thus is not subject to the exercise of the avoidance power, is justifiable, and there is no error of law such as misunderstanding of legal principles as to social reasonableness that limits the exercise of the avoidance power

3. As to the fourth ground for appeal

Even if an act is subject to avoidance prescribed in subparagraph 1 of Article 391 of the Act, if a person who receives a benefit from such act does not know the fact that he/she would prejudice any bankruptcy creditor at the time of such act, it cannot be denied, but such a beneficiary's bad faith is presumed, so the beneficiary bears the burden of proof for the good faith.

The court below's holding that the evidence submitted by the plaintiffs alone is insufficient to find that the plaintiff Young-jin Corporation did not know that it would prejudice the creditors of the creative industry at the time of expressing its intent to complete the agreement and the reservation of this case, and that there is no other evidence to acknowledge it is just in the premise of the above legal principles. There is no error of law such as misunderstanding of legal principles as to the burden of proof as to the beneficiary's good faith in the

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)