[2] In a case where it is deemed that the debtor's act subject to avoidance under the bankruptcy procedure is socially necessary, reasonable, or inevitable, and the 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 right to set aside (negative), and the standard for determining the reasonableness of the act / The burden of asserting and proving the circumstances that the requirements for denial are not met (=beneficiary)

[3] The case holding that in a case where savings bank Gap paid a deposit to Eul et al. who is a relative of an employee or his/her employee in a situation where it is anticipated that a large-scale deposit withdrawal situation or business suspension will be expected, it cannot be viewed that the above act constitutes exceptional cases where a general bankruptcy creditor should accept the reduction of a bankruptcy estate or an unfair business operation in light of the overall circumstances

1. Plaintiff’s ground of appeal

A. According to the reasoning of the lower judgment, the lower court determined that “The payment of deposits to the Defendants by the Busan 2 Savings Bank (hereinafter “BB Savings Bank”) constitutes a biased act that undermines equal distribution among bankruptcy creditors by paying deposits only to the Defendants, a specific deposit account holder, in a critical situation in which business suspension is expected, and it is reasonable to view that the Busan 2 Savings Bank was aware that it would have repaid deposits to the specific creditors in order to avoid the principle of equality of creditors applicable to the commencement of bankruptcy proceedings at the time of the payment of deposits, and that the payment of deposits to the Defendants of the Busan 2 Savings Bank shall be subject to avoidance of intention,” but dismissed the Plaintiff’s claim against the Defendants of the Busan 2 Savings Bank (hereinafter “Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, Defendant 10, and Defendant 11 (hereinafter “Defendant 3 and eight”) on the ground that the withdrawal of deposits can not be deemed to have been socially or inevitable.”

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) The "act committed by an obligor with knowledge that it would prejudice any bankruptcy creditor", which is an act subject to avoidance under Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, includes not only so-called fraudulent act absolutely reduced the debtor's general property, which is a joint security of all creditors, but also so-called biased act that affects the debtor's property relationship, such as repayment to a specific creditor or provision of a security to a specific creditor, thereby favorable to a specific bankruptcy creditor and is contrary to equity with other bankruptcy creditors. However, in order to be recognized as an intentional person, the obligor should have known that it would prejudice any bankruptcy creditor as a subjective requirement. In order to prevent the act subject to denial under the Debtor Rehabilitation and Bankruptcy Act and to promote the balance of transaction safety and balance, if repayment or offering a security to a specific creditor is intended for intentional avoidance, it is necessary to recognize that only repayment or offering a security to a specific creditor is necessary to avoid the principle of equality of creditors applicable when bankruptcy procedures commence (see, e.g., Supreme Court Decision 2003Da7137, Nov. 10, 2005).

Meanwhile, even if the act of the debtor, which is subject to avoidance in the bankruptcy procedure, is harmful to the bankruptcy creditor, there may be cases where it is recognized that the act was socially necessary, reasonable, or inevitable in light of individual and specific circumstances at the time of the act, and thus, general bankruptcy creditors need to suffer the decrease in the bankruptcy estate or unfair trade. In such exceptional cases, it shall not be subject to the exercise of the right to set aside under Article 391 of the Debtor Rehabilitation 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 issue of reasonableness should be determined specifically in light of the principle of good faith and the idea of fairness in terms of the source of the repayment fund, the relationship between the debtor and the creditor, and whether the debtor exercised influence such as the debtor's collusion with the debtor or forcing the debtor to repay, etc. (see, e.g., Supreme Court Decision 2004Da636164, Mar. 26, 2004).

(2) Examining the reasoning of the lower judgment and the following circumstances revealed by the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, it is difficult to recognize that the act of the Busan2 Savings Bank’s payment of deposits to Defendant 3 and 8, a relative of its employee or employee, was socially necessary and reasonable, or inevitable, due to the fact that the act of paying deposits was likely to occur in a large-scale deposit withdrawal situation or business suspension, and it constitutes an exceptional case where a general bankruptcy creditor is obliged to suffer the reduction

① On February 15, 2011, the Savings Bank Restructuring Countermeasures Team established with the Financial Services Commission demanded the major shareholders of the Busan Savings Bank (hereinafter “Reintein Savings Bank”) and the auditor to voluntarily file an application for the suspension of business with five banks in Busan Savings Bank Group.

② around 07:30 on February 17, 201, the Financial Services Commission decided to suspend business with respect to Busan Savings Bank, which is a parent group of Busan2 Savings Bank, and Daejeon Mutual Savings Bank. The Busan2 Savings Bank was subject to the disposition of suspension of business on February 19, 201 upon filing an application for suspension of business with the Financial Services Commission on February 18, 201, when a large-scale deposit withdrawal situation occurs.

③ On February 16, 2011, the director of the division of the Busan 2 Savings Bank was present at the meeting of the internal staff of the Busan 2 Savings Bank Group Group, and was notified to the employees of the Busan 2 Savings Bank through Defendant 8, etc. of the fact that the suspension of business can be immediately applied for five banks including the Busan 2 Savings Bank.

④ From February 16, 2011 to the 18th of the same month, executives and employees of Busan 2 Savings Bank notified of such internal information as above: (a) induced their relatives and some customers to withdraw deposits; (b) released their own employees and relatives’ deposits; and (c) unfairly withdrawn deposits without paying the deposit price.

⑤ Defendants 6, 8, and 10, who are employees of Busan District Savings Bank, and Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, who are relatives of the remaining Defendants, violated the duty to verify financial transaction during the customer’s store hours from February 16, 201 to February 18, 201, and withdrawn the deposit by themselves or relatives.

6) Defendant 2 and Nonparty 4 were subject to each disciplinary action on the grounds of the foregoing violation of the obligation to withdraw the deposit and to verify the actual status of financial transactions. Defendant 10, Defendant 6, Nonparty 2, Nonparty 3, and Nonparty 5 were respectively subject to disciplinary action, but they were dismissed and were not subject to disciplinary action.

(3) Nevertheless, as indicated in its holding, the lower court determined that the act of the Busan 2 Savings Bank’s payment of deposits to Defendant 3 and 8 was a socially reasonable or inevitable act. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on social reasonableness that limits the exercise of the right to set aside, thereby adversely affecting the conclusion of the judgment.

2. As to the grounds of appeal by Defendants 1 and 2

A. The court below rejected the defendants' defense that the payment of deposits to the above Defendants of the Busan 2 Savings Bank is subject to intentional avoidance, and that the above act is socially significant act, and thus it cannot be subject to the exercise of the right to set aside.

B. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on objects of denial, social reasonableness of acts subject to denial

3. Conclusion

Therefore, the part of the judgment of the court below against Defendants 3, 4, 5, 6, 7, 8, 9, 10, and 11 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeals by Defendants 1 and 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)