In a case where the bankrupt is declared bankrupt after a transaction without a resolution of the board of directors of the other company with the company, whether the bankruptcy trustee constitutes a third party who has a new legal interest in the transaction (affirmative in principle), and whether the other party company may assert the invalidity of the transaction to the bankruptcy trustee (negative in principle)

Since all property owned by the bankrupt at the time that the bankruptcy is declared bankrupt belongs to the bankruptcy trustee who is entitled to organize the bankrupt estate and to manage and dispose of the bankrupt estate, the bankruptcy trustee becomes the same status as the general successor of the bankrupt. However, if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure, and 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 person who has an interest in the property independently from the bankrupt in accordance with the bankruptcy declaration.

In cases where the bankrupt was engaged in a transaction without a resolution of the board of directors with the counterpart company and his/her company but is declared bankrupt, the bankruptcy trustee constitutes a third party having a substantial legal interest on the basis of the legal relationship formed through the transaction with the counterpart company without a resolution of the board of directors, barring any special circumstances. Moreover, the good faith and bad faith cannot be the basis of the good faith and bad faith of the bankruptcy trustee, and unless all bankruptcy creditors knew that the resolution of the board of directors was not adopted based on the total bankruptcy creditors, or were grossly negligent in not knowing that the above resolution was not adopted by the board of directors, the counterpart

Articles 209, 389(3), and 393(1) of the Commercial Act; Articles 382(1), 361(1), 384, and 424 of the Debtor Rehabilitation and Bankruptcy Act

Supreme Court Decision 2009Da96083 Decided April 29, 2010 (Gong2010Sang, 993)

Trustee in Bankruptcy, Inc. (Law Firm Gapp, Attorneys Song Jin-jin et al., Counsel for the plaintiff-appellant)

Mau Housing Co., Ltd. (Law Firm LLC, Attorney Kim Jong-seok, Counsel for the plaintiff-appellant)

Jeju District Court Decision 2012Na4091 Decided January 29, 2014

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 3

A. In a case where the representative director of a stock company did not undergo a resolution of the board of directors, and the other party to the transaction knew or could have known that the resolution of the board of directors was not made, the transaction is null and void between the company and the other party to the transaction. However, in order to claim against a third party that the transaction was null and void because of the failure to undergo a resolution of the board of directors, the third party should prove that there was gross negligence in knowing, or failing to know, that the resolution of the board of directors was not made (see, e.g., Supreme Court Decisions 200Da20670, Jan. 24, 2003; 2003Da64688, Mar. 25, 2004).

Since all property owned by the bankrupt at the time that the bankrupt is declared bankrupt belongs to the right to constitute the bankrupt estate and to manage and dispose of the bankrupt estate, the bankruptcy trustee becomes the same status as the general successor of the bankrupt. However, if the bankruptcy is declared, the bankruptcy creditor cannot exercise any bankruptcy claim without resorting to the bankruptcy procedure, and performs his duties with the care of a good manager for the common interest of the whole bankruptcy creditors, so the bankruptcy trustee also holds the status of a third party who has an interest in the property independently from the bankrupt in accordance with the bankruptcy declaration (see Supreme Court Decision 2009Da96083, Apr. 29, 2010, etc.).

Where the bankrupt was engaged in a transaction without a resolution of the board of directors with the counterpart company and its company, and the bankrupt is declared bankrupt, the bankruptcy trustee constitutes a third party who has a substantial legal interest on the basis of the legal relationship formed through the transaction with the counterpart company without a resolution of the board of directors, barring special circumstances. In addition, the good faith and bad faith cannot be the basis of the good faith and bad faith of the bankruptcy trustee, and unless all bankruptcy creditors knew that the resolution of the board of directors was not adopted based on the total bankruptcy creditors, or were grossly negligent in not knowing that the above resolution was not adopted by the board of directors, the counterpart

B. First, on the grounds indicated in its reasoning, the lower court determined that, on the premise that the instant joint and several surety agreement is a large-scale guaranteed obligation and an external transaction that requires a resolution of the Defendant’s board of directors, the instant joint and several surety agreement was conducted without the Defendant’s resolution at the board of directors, and that the bankrupt, the other party to the transaction, was aware of, or could have sufficiently known, the fact that such agreement had not been adopted by the board

Examining the records in light of the relevant legal principles, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of facts against logical and empirical rules.

C. Furthermore, the lower court rejected the Plaintiff’s assertion that the invalidity of the joint and several surety agreement of this case, which was made by the Defendant without a resolution of the board of directors, cannot be asserted against the Plaintiff, on the grounds that, insofar as the bank of this case, who was the bankrupt, actively participated in the act of breach of trust by practically directing and managing the business and participating in the process thereof, it cannot be deemed that the

However, examining the records in light of the above legal principles, the defendant's allegation that the joint and several guarantee agreement in this case is null and void because it did not go through a resolution of the board of directors should be proved that the third party knew or was grossly negligent in not knowing that the resolution was not passed by the board of directors. Furthermore, the plaintiff, the bankruptcy trustee, constitutes a third party who actually has a new legal interest based on the legal relationship formed pursuant to the joint and several guarantee agreement in this case without the resolution of the board of directors, and its good faith and bad faith should be determined based on the total bankruptcy trustee, not an individual, and the bankruptcy trustee. Thus, unless the defendant proves that all bankruptcy creditors knew or were grossly negligent in not knowing that the conclusion of the joint and several guarantee agreement in this case was not subject to the resolution of the board of directors

Nevertheless, the lower court determined that the Defendant’s joint and several guarantee agreement in this case, which was concluded by the Defendant without a resolution of the board of directors, is null and void. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of transactions without a resolution of the board of directors and the status of a third party in bankruptcy, thereby affecting the conclusion

2. Regarding ground of appeal No. 2

A. After finding the facts as stated in its reasoning, the lower court determined that the joint and several surety of this case is an act of making another person gain profit and causing damage to the defendant, and constitutes a breach of trust against the defendant, and the representative director of the bank of this case actively participated in the joint and several surety agreement of this case as it constitutes a juristic act contrary to social order under Article 103 of the Civil Act and thus, constitutes a juristic act contrary to social order of Article 103 of the Civil Act and thus, is null and void.

B. However, the above determination by the court below is not acceptable in light of the following circumstances known by the records.

First of all, the non-party 2 who actually operated the defendant was convicted of the crime that "In collusion with the non-party 1, etc. of the former representative director of the bank of this case, with the knowledge of the fact that loans are not to be collected at all due to the bad financial standing of the defendant, the above judgment became final and conclusive (the Gwangju High Court Decision 2011No69, 85 decided Jan. 18, 2012) by having the borrower obtain a total of 40.5 billion won from the bank of this case from November 10, 2004 to September 12, 2008, by having the same person obtain a loan from the bank of this case, such as Gak Construction, in order to avoid the provision on the lending limit to the same person with the knowledge of the fact that loans are not to be collected at all due to the bad financial standing of the defendant."

In rendering a civil judgment, even if the facts acknowledged in the criminal judgment are not always bound by the facts established in the criminal judgment, the facts acknowledged in the judgment in the already established related criminal case shall constitute sufficient evidence (see, e.g., Supreme Court Decision 88Meu3946, Feb. 14, 1989). However, in light of the fact that a loan of KRW 3.3 billion to the principal debtor of the joint and several surety agreement of this case and the first loan of KRW 3.3 billion to the development of known industry was made by Nonparty 2 who actually operated the defendant during the same period as the above criminal facts found guilty in the final judgment of the above criminal case, the above and known industry development is the so-called Puercom established by Nonparty 2 for the purpose of obtaining a loan from the bank of this case, and the defendant jointly and severally guaranteed the above loan, there is room to view that the borrower is actually paying the loan of KRW 3.3 billion to the above 3.3 billion loan to the above development of industry and industry.

Then, even though A.I.D., the principal debtor of the joint and several guarantee agreement of this case, created for the loan and did not have any business performance or business performance, and does not have any property to be offered as security, it is difficult to readily conclude that the joint and several guarantee of this case is the act of allowing others to gain profit and causing damage to the defendant, and constitutes a breach of trust against the defendant.

Furthermore, in addition, in the case where the defendant filed a complaint against the above non-party 1 and the non-party 2 on the charge of occupational breach of trust on the grounds that he had caused damage to the defendant by having the defendant jointly and severally surety the debts of the borrower company, including the loan of KRW 3.3 billion, etc. of this case, the prosecutor of the Jeju District Prosecutors' Office used the loans of this case to repay the previous debts, such as the debts of the defendant or the defendant's financial institution, the deposit repayment obligations, and the unpaid construction charges, etc., and the defendant's joint and several sureties and the related company's endorsement between the defendant and the defendant's related company, which are insufficient evidence as to occupational breach of trust, was insufficient to prove that the defendant is not liable for each obligation of the defendant's related company (However, the prosecutor of the Gwangju High Prosecutors' Office issued

Therefore, in order to determine whether the joint and several guarantee of this case, which was made by Nonparty 2 and Nonparty 1 of the former representative director of the Bank, actually operated the Defendant at the time, constitutes a breach of trust against the Defendant, a more close examination of the actual borrower, the user and the propriety of use of the loan of this case, the business relationship or debt relationship between the Defendant and the Defendant’s related company, or the intent at the time of loan-related actors, such as Nonparty 2, etc. In order to determine whether the joint and several guarantee of this case, which was made by Nonparty 2 and Nonparty 1 of the former representative director of the Bank of this case, constitutes an act of breach of trust against the Defendant, and thus,

C. Nevertheless, the lower court determined that the joint and several guarantee agreement in this case was null and void as a juristic act against social order only with the facts and the evidence admitted by the lower court. In so doing, the lower court erred by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on juristic act against social order under Article 103 of the Civil Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

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 on the bench.

Justices Kim Chang-suk (Presiding Justice)