[채무부존재확인][공2003.8.1.(183),1581]
In case where the lender of the largest loan for consumption is declared bankrupt, whether the trustee in bankruptcy is a third party of the false agreement (affirmative)
Since all property held by the bankrupt at the time that the bankrupt is declared bankrupt belongs to the bankruptcy trustee, the right to manage and dispose of the bankrupt estate belongs to the bankruptcy trustee. Thus, the bankruptcy trustee becomes the same status as the general successor of the bankrupt, but if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure, and the bankruptcy trustee performs his duties with the care of a good manager for the common interest of the whole bankruptcy creditors, so the bankruptcy trustee becomes a third party who has an interest in the property independently from the bankrupt in accordance with the declaration of bankruptcy. Therefore, if the bankrupt is declared bankrupt by a false declaration of intention made by the bankrupt in collusion with the other party, the most claim belongs to the bankruptcy estate, and the bankruptcy trustee who performs duties for the common interest of all the bankruptcy creditors as an independent person of the bankrupt in accordance with the declaration of bankruptcy falls under Article 108 (2) 3 of the Civil Act, which is substantially new legal interest based on the legal relationship formed externally by such false declaration.
Article 108(2) of the Civil Act, Articles 6, 7, and 154(1) of the Bankruptcy Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)
Plaintiff (Attorney Park Young-chul et al., Counsel for the plaintiff-appellant)
Korea Deposit Insurance Corporation (Attorney Park Jong-soo, Counsel for defendant-appellant)
Daegu High Court Decision 2001Na8807 delivered on July 19, 2002
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
Since all property held by the bankrupt at the time that the bankrupt is declared bankrupt belongs to the bankruptcy trustee, the bankruptcy trustee has the same status as the general successor of the bankrupt, but if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure, and the bankruptcy trustee performs his duties with the care of a good manager for the common interest of the whole bankruptcy creditors, so the bankruptcy trustee becomes a third party who has an interest in the property independently from the bankrupt in accordance with the declaration of bankruptcy. Therefore, in case where the bankruptcy is declared bankrupt by a false declaration of intention made by the bankrupt in collusion with the other party, the most claim belongs to the bankruptcy estate, and the bankruptcy trustee who performs duties for the common interest of the whole bankruptcy creditors as independent from the bankrupt by the declaration of bankruptcy falls under Article 108(2)3 of the Civil Act, which is substantially new legal interest based on the legal relationship formed outside the form of a false declaration of intention made by the bankrupt in collusion with the other party.
In the same purport, the court below held that even if the loan agreement of this case, which the plaintiff entered into with the open mutual savings and finance company, is null and void because it was declared bankrupt against the open mutual savings and finance company after the loan agreement of this case was made, it is proper that the plaintiff cannot set up against the defendant who is the trustee in bankruptcy of the open mutual savings and finance company for the reason that the loan agreement of this case is null and void, and there
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party.
Justices Zwon (Presiding Justice)