[2] Whether an act that is not limited by Article 31 of the Composition Act or an act that is limited by the same Article, but is not entitled to exercise the right to set aside under the Composition Act pursuant to the proviso of Article 33 of the same Act is naturally excluded from the subject of exercise of the right to set aside under the Bankruptcy Act (negative)

[3] Whether the provisions of the Composition Act take precedence over the case where the Composition Act is subject to avoidance under the Bankruptcy Act, but it is not subject to avoidance under the Composition Act (negative)

[4] Whether the reasonableness of the act is the requirement for exercising the avoidance power under the Bankruptcy Act (affirmative)

[5] The criteria for determining the reasonableness of the act and the location of the burden of assertion and proof

[2] Article 31 of the Composition Act does not lose the debtor's right to dispose of his/her property management even upon the application for commencement of composition. However, if the debtor's property management is entrusted to the debtor's freedom, it is only intended to restrict a certain scope of the act after the commencement of composition is applied until the decision is made, considering the risk that the composition of composition or the implementation of the conditions of composition is difficult or impossible by changing the current state of the property or reducing the property. Since the so-called crisis under Article 64 subparagraph 2 of the Composition Act and the denial under Article 33 of the Composition Act are different from the requirements for the establishment, the act that is not limited by Article 31 of the Composition Act or the restriction under Article 33 of the Composition Act can be excluded from the subject of the exercise of the right to set aside under the Composition Act, and therefore, even if the debtor applied for the commencement of composition after "after the suspension of payment" under Article 64 subparagraph 2 of the Composition Act, if the act satisfies the requirements for set forth in Article 34 subparagraph 2 of the Composition Act.

[3] The principle of priority of composition under Article 17 of the Composition Act is merely a bankruptcy petition filed by a creditor and a debtor's application for the commencement of composition at the same time before the commencement of composition procedure is completed, and the bankruptcy procedure is suspended as a matter of course until the completion of composition procedure by giving priority to a creditor and the debtor's application for the commencement of composition at the same time. Thus, the above provision has the above provision, but it shall not be interpreted that the provisions of the Composition Act take precedence over

[4] Even if the act subject to avoidance under the Bankruptcy Act is harmful to the bankruptcy creditors, there may be cases where the act is deemed necessary, reasonable, or inevitable in light of individual and specific circumstances at the time of the act, and it can be deemed that the general bankruptcy creditors should suffer the reduction of the bankruptcy estate or the unfair business practices. In such exceptional cases, it shall not be subject to the exercise of the right to set aside under Article 64 of the Bankruptcy Act in light of the guiding ideology or the concept of justice of the Bankruptcy Act, such as the equality of creditors, the protection of the debtor, and

[5] Whether the act is reasonable shall be determined in detail in light of the good faith principle and the idea of fairness, based on the source of the repayment fund, the relationship between the bankrupt and the creditor, whether the creditor in collusion with the bankrupt or exercised influence over the bankrupt, etc., as well as the subjective state of the bankrupt, such as the bankrupt's property and business status at the time of the act, the purpose and intent of the act, and the motive of the act, etc.

The court below, based on its evidence, maintained 90.7.27. After the establishment of the 1990.7.7.27., the company had been operating a blue department store from Sungnam-si, 1996. The defendant operated a 2nd office store and sold home appliances to the 3rd office store and then traded the remaining amount after deducting commission from the 9th office of bankruptcy. On the other hand, the company was unable to pay the 9th office price to the 9th office of the 4th office of the 9.7th office of the 4th office of the 1997.7th office of the 9th office of the 4th office of the 4th office of the 196th office of the 9th office of the 196th office of the 4th office of the 196th office of the 196th office of the 196th office of the 196th office of the 196th office of the 196th office of the 19.

2. Determination on the grounds of appeal (to the extent of supplement in case of supplemental appellate brief)

A. As to the harmfulness

Article 64 of the Bankruptcy Act provides that "any act falling under any of the following subparagraphs may be avoided on behalf of the bankrupt estate", and subparagraph 2 provides a security, provides a debt termination after the bankrupt is suspended of payment or a petition for bankruptcy is filed (except in the case where a person who receives a benefit from the act does not know that there has been a payment suspension or a petition for bankruptcy at the time of the act) and other act detrimental to the bankruptcy creditors." "an act detrimental to the bankruptcy creditors" under Article 64 subparagraph 2 of the Bankruptcy Act refers to an act detrimental to the creditors, which is subject to the avoidance of crisis under Article 64 subparagraph 2 of the Bankruptcy Act, in addition to a fraudulent act which absolutely reduces the general property of the bankrupt, it shall include an act detrimental to equality among the creditors, and if the so-called act of repayment of a debt whose maturity has come due is made at the time of a formal crisis, it may be subject

The court below held that the act of repayment in this case that the company prior to bankruptcy had already been in the state of payment suspension at the time of the act of repayment in this case since the company prior to bankruptcy was in the state of payment suspension on December 26, 197, and the act of repayment in this case that paid to the defendant the total amount of the unpaid goods amounting to KRW 96 million constitutes "the act of extinguishment of obligation after the payment suspension", and if the company prior to bankruptcy did not know that the payment was suspended after the suspension of payment was completed, the act is subject to avoidance under the Bankruptcy Act unless the defendant did not know that the payment was suspended at the time of the suspension of payment. This is just and acceptable as it recognizes the hazard requirement in accordance with the above legal principles and there is no

B. As to the assertion on Article 31 of the Composition Act

According to Article 31 of the Composition Act, if the debtor cannot perform an act that does not fall under the ordinary scope from the time of application for commencement of composition to the time of decision, and even if an administrator is appointed after the commencement of composition, if there is an objection, the debtor shall not execute such act (Paragraph 2), and if the debtor obtains the consent of the preservative administrator (if the preservative administrator is not appointed, the court's permission) on the obligations falling under any of the subparagraphs of Article 3 (3) of the Composition Act which arise after the commencement of composition, it shall be possible for the preservative to repay those obligations if it is not within the ordinary scope (Paragraph 3 and Paragraph 4 of the Composition Act). According to Article 33 of the Composition Act, it shall be limited to the time when the composition creditor becomes aware of the facts at the time of the other party's exercise of the right to set aside under Article 31 of the Composition Act and the right to set aside under Article 31 of the Composition Act shall not be limited if the debtor's exercise of the right to set aside under the Composition Act is not effective.

The court below rejected the defendant's assertion that the repayment of part of the sale price by the company prior to bankruptcy after the application for commencement of composition is valid as "an act within the ordinary scope of business" under Article 31 of the Composition Act, and even if the above repayment does not fall within such scope, the defendant did not know that the above act does not fall within the ordinary scope of business or there was no permission from the preservative administrator or the court, and therefore, the repayment in this case cannot be viewed as falling within the ordinary scope of business, and it cannot be viewed as an act which is not restricted by Article 31 of the Composition Act or restricted by the above Article 33 of the Composition Act, but it cannot be viewed as an act which is prohibited by the bankruptcy procedure under the proviso of Article 33 of the Composition Act, and the court below rejected the defendant's argument that the act which belongs to the effective composition procedure can not be denied by the bankruptcy procedure under the Composition Act, and there is no violation of the legal principles as to the right to set aside in Article 17 of the Composition Act and the bankruptcy procedure can only be rejected.

C. As to the assertion of the lack of illegality

Even if the act subject to avoidance under the Bankruptcy Act is harmful to the bankruptcy creditors, there may be cases where it can be said that the general bankruptcy creditors should accept the reduction of the bankruptcy estate or the unfair business among the creditors because the act was socially necessary, reasonable or inevitable, depending on the individual and specific circumstances at the time of the act. In such exceptional cases, it shall not be subject to the exercise of the avoidance power under Article 64 of the Bankruptcy Act in light of the guiding ideology or the concept of justice of the Bankruptcy Act, such as the equality of creditors, the protection of the debtor and the coordination of the interests in bankruptcy. Here, the reasonableness of the act should be determined in detail in light of the principle of good faith and the ideology of fairness, in consideration of the bankrupt's property and business state at the time of the act, the purpose and intent of the act, etc., as well as the source of the repayment fund, the relationship between the bankrupt and the creditor, and whether the creditor in collusion with the bankrupt or forced the person to perform the payment, etc.

The argument in the grounds of appeal is that the act of repayment in this case is an act of maintaining the interest and rehabilitation of the company prior to bankruptcy, the result of harm to the bankruptcy creditor, the motive, purpose, contents, income gained by the company prior to bankruptcy, the attitude of the preservative administrator, and other circumstances which led to the act of repayment in this case including the fact that the act of repayment in this case is not subject to avoidance by failing to meet the requirement of illegality, but it cannot be deemed that the act of repayment in this case is an act for the interest of the company prior to bankruptcy. However, as can be known by facts and records acknowledged by the court below, it cannot be seen as an act of repayment in this case, because the defendant notified the company prior to bankruptcy that the act of repayment in this case would discontinue its business and withdraw the assets of the company prior to bankruptcy, and it cannot be viewed as an act of repayment in this case as an act of fair use of the company prior to bankruptcy without the defendant's consent of 30 billion won prior to bankruptcy or 400 billion won prior to bankruptcy, and it cannot be viewed as an act of repayment in this case.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)