[2] The meaning of the principle of trust and good faith and the requirements to deny the exercise of rights on the grounds that it violates such principle

1. As to the establishment of a loan for consumption

A. In determining the objective agreement of expression of intent for the formation of a contract, the existence and content of expression of intent must be recognized as stated in the contract unless there are special circumstances (see Supreme Court Decision 2008Da96291, 96307, Apr. 23, 2009).

Meanwhile, if a third party directly signs and affixs a seal on loan-related documents, such as a written loan for consumption, as the principal debtor or joint guarantor, the third party itself indicates that it is the debtor of the loan-related contract, and even if a third party has an intention to obtain a loan under the name of a third party to use it, or to repay the principal and interest at the expense of another party, barring any special circumstance, it is merely an intention to vest the economic effect under the loan for consumption in the name of a third party, and the legal effect thereof shall not be deemed to belong to the other party (see, e.g., Supreme Court Decision 2008Da772, 7789, Jun. 12, 2008).

B. In light of the following circumstances, the lower court determined that it is difficult to view that there was a loan agreement between the Defendant and the Busan Savings Bank (hereinafter “SUB”) on May 17, 2006, as stated in the loan agreement (hereinafter “instant loan agreement”).

① The Busan Savings Bank prepared the instant loan contract in form with the Defendant in order to prepare the acquisition price of stocks of an urban community corporation, a special purpose corporation established for the development project of multi-family housing (hereinafter referred to as “urban community”).

② A person who actually uses funds withdrawn under the loan contract of this case is the Busan Savings Bank, which is the lender, and there is doubt as to whether the parties have actually expressed the legal effect under the loan contract of this case at the time of making the loan contract of this case.

③ The Busan Savings Bank did not demand any repayment to the Defendant from May 17, 201, which was the initial due date for payment under the instant loan agreement, until May 17, 201, which was the final due date for payment, and the Defendant did not want to pay that amount. Rather, the Busan Savings Bank appears to have managed the loan in direct payment of interest on the instant loan, which is extremely exceptional to the general loan agreement.

C. However, we cannot agree with the above determination by the court below for the following reasons.

(1) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following facts are revealed.

(1) On May 15, 2006, the defendant was registered as the representative director of an urban community established by the Busan Savings Bank, and received the benefits.

② On May 17, 2006, the Defendant directly signed and sealed loan-related documents, such as loan application form and credit transaction agreement, and applied for loan to Busan Savings Bank. Busan Savings Bank deposited the instant loan into the Defendant’s account.

③ The instant loan was used as the price for acquiring the shares of urban community in the name of the defendant.

④ On May 2010, before the maturity date of the instant loan, the Defendant signed and sealed an application for extension of credit period to the Busan Savings Bank and submitted it to the Defendant. The maturity date of the instant loan was extended on May 17, 201.

⑤ On May 25, 2011, Busan Savings Bank urged the Defendant to repay the instant loans.

(2) Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant and the Busan Savings Bank constituted a loan agreement such as the entry in the loan agreement of this case on May 17, 2006. The circumstances indicated by the lower court on the grounds of the determination that it was difficult to deem the loan agreement of this case was concluded are merely common circumstances in the loan of loan of name, and thus, it is insufficient to serve as the grounds for denying

D. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the formation of a contract, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

2. As to the violation of the principle of good faith

A. The principle of trust and good faith is an abstract norm that a party to a legal relationship should not exercise his/her right or perform his/her duty in a manner that violates the principle of trust and good faith by taking into account the other party’s interest. In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, the other party has provided good faith to the other party, or the other party has good faith from an objective point of view, and the exercise of the right against the other party’s trust and good faith has to reach an extent that is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decisions 2003Da2390, 2406, Apr. 22, 2003; 2009Da68941, Feb. 10, 2011).

Meanwhile, since all property owned by the debtor when the debtor is declared bankrupt belongs to the trustee in bankruptcy, the right to manage and dispose of the bankruptcy estate belongs to the trustee in bankruptcy. Thus, the trustee in bankruptcy becomes the same status as the general successor of the debtor in bankruptcy, but if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure, and the trustee in bankruptcy performs his duties with the care of a good manager for the common interest of all the bankruptcy creditors, so the trustee in bankruptcy becomes a third party who has an interest in the property independently from the debtor in accordance with the declaration of bankruptcy (see Supreme Court Decision 2002Da48214, Jun. 24, 2003).

B. In light of the following circumstances, the lower court determined that the Plaintiff’s claim of this case was groundless.

① The Defendant borrowed the name of the Busan Savings Bank in order to acquire shares issued in an urban life upon the Nonparty’s request as a director and auditor of the Busan Savings Bank. As seen earlier, all the money withdrawn under the loan contract was used as the capital for acquiring shares of the Busan Savings Bank. This is the same as the Defendant immediately repaid the money borrowed from the Busan Savings Bank to the Busan Savings Bank.

② The Busan Savings Bank received the confirmation of ownership, the transfer of ownership, and the final and conclusive judgment in favor of the Defendant on the ground that 19,800 shares of the city living group held in the name of the Defendant were nominally held. If the Busan Savings Bank finally holds the shares (interest) acquired from the funds provided by the Defendant, it is reasonable to deem that such repayment or any other similar legal effect exists, and in such circumstances, it is extremely unfair for the Defendant to bear the obligation to return the instant loan.

③ Although the Plaintiff, as the bankruptcy trustee, is in the position of an independent third party protected by the invalidation and cancellation of the transaction relationship between the Busan Savings Bank and the Defendant, this is due to the nature of the business of the bankruptcy trustee, who performs his duties with the care of a good manager, at the same time as the general successor of the bankrupt. It appears that the right to the shares acquired by the Busan Savings Bank from the instant loan is constituted a bankruptcy estate managed by the Plaintiff. As seen earlier, it seems that there is no practical benefit to protect the rights substantially extinguished solely on the ground that the Plaintiff is the bankruptcy trustee, and if so, it is highly likely to seriously go against equity and justice in light of the overall circumstances mentioned earlier

C. However, in light of the above legal principles, we cannot agree with the above judgment of the court below for the following reasons.

(1) Although Busan Savings Bank withdrawn a loan deposited in the name of the defendant and used it as a price to acquire stocks of a special purpose corporation in the name of the defendant, it is merely the use of the loan by the Busan Savings Bank in accordance with a separate agreement between the defendant and the Busan Savings Bank, and the defendant cannot be deemed to have repaid the loan of this case.

② Even if the Plaintiff, the party taking over the lawsuit at Busan Savings Bank, filed a lawsuit against the Defendant, etc. to confirm the ownership of the shares of a special purpose corporation acquired through the instant loan, and the judgment in favor of the Plaintiff became final and conclusive, it cannot be deemed that the Defendant’s repayment of the instant loan or any similar legal effect has occurred

③ The instant loan claim filed by the Plaintiff for the joint interest of all bankruptcy creditors as a third party who had an interest in the property independently from the bankruptcy debtor as a trustee in bankruptcy cannot be deemed to constitute an abuse of rights against the principle of trust and good faith or an abuse of rights.

D. Nevertheless, the lower court determined that the instant loan claim was groundless solely on the grounds stated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the principle of good faith or abuse of rights, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)