The costs of appeal are assessed against the Plaintiff.

1. Regarding ground of appeal No. 1

A. According to each subparagraph of Article 391 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), an act subject to avoidance is, in principle, an act of a debtor.

However, even if there was no debtor's act, in case where the debtor's act is deemed to be identical to the debtor's act due to special circumstances such as the collusion with the debtor, the creditor's act or the third party's act can be exceptionally denied.

(see, e.g., Supreme Court Decision 201Da56637, 56644, Oct. 13, 2011). The latter part of Article 395 of the Debtor Rehabilitation Act provides that the right to set aside may be exercised even when the intended act was based on an executory act.

However, unlike Article 391 of the Debtor Rehabilitation and Bankruptcy Act stipulating the subject of the avoidance power as the debtor, Article 395 does not impose any restriction.

The act of denying is naturally scheduled to be done by the decision of the enforcement procedure by the enforcement agency such as the enforcement court. In such a case, there is no room to intervene in the debtor's act.

Therefore, the denial of enforcement act under each subparagraph of Article 391 of the Debtor Rehabilitation Act does not necessarily require any special circumstances to regard it as identical to the debtor's act.

However, even if the avoidance power is exercised against the enforcement act, it shall meet the requirements falling under any of the subparagraphs of Article 391 of the Debtor Rehabilitation Act, except for the subject of the act.

(see Supreme Court Decision 2009Da76362, Nov. 24, 2011). Accordingly, when denying an enforcement act pursuant to Article 391 Subparag. 1 of the Debtor Rehabilitation Act, the debtor’s intentional setting that requires the debtor’s subjective requirements would prejudice the bankruptcy creditors by nature of the debtor’s intentional setting that requires.