[1] In a case where a bankruptcy is declared bankrupt by a false declaration of intent made by the bankrupt debtor in collusion with the other party, whether the bankruptcy trustee constitutes a "third party" under Article 108 (2) of the Civil Code (affirmative), and the standard for determining whether the bankruptcy trustee acted in good faith

[2] Details and limitations of the court's exercise of the right to ask for clarification

[1] Article 108(2) of the Civil Act; Articles 361(1) and 384 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 136 of the Civil Procedure Act

[1] Supreme Court Decision 2002Da48214 decided Jun. 24, 2003 (Gong2003Ha, 1581) Supreme Court Decision 2004Da10299 decided Nov. 10, 2006 (Gong2006Ha, 2060) / [2] Supreme Court Decision 2000Da19526 decided Oct. 10, 200 (Gong200Ha, 2302) Supreme Court Decision 201Da79013 decided Mar. 12, 2004 (Gong2004Sang, 601)

Plaintiff (Law Firm private, Attorneys Kim Gyeong-soo et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Law Firm Grandmark, Attorneys Yoon Young-chul et al., Counsel for the plaintiff-appellant-appellee)

Seoul High Court Decision 2012Na64323 decided December 6, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. All property owned by the debtor at the time that the debtor is declared bankrupt shall constitute the bankruptcy estate, and the right to manage and dispose of the bankruptcy estate belongs to the trustee in bankruptcy. Thus, the trustee in bankruptcy shall not have the same status as the general successor of the debtor in bankruptcy. If the bankruptcy is declared, the bankruptcy creditor shall not exercise the bankruptcy claim without resorting to the bankruptcy procedure, and the trustee in bankruptcy shall perform his/her duties with the care of a good manager for the common interest of the whole bankruptcy creditors. Thus, the trustee in bankruptcy shall have the status as a third party who has an interest in the property independently from the debtor in accordance with the declaration of bankruptcy. Therefore, where the bankruptcy is declared by a false declaration of intention made by the debtor in collusion with the other party, the most claim shall belong to the bankruptcy estate, and the debtor and the trustee in bankruptcy who performs duties for the common interest of the whole bankruptcy creditor in accordance with the declaration of bankruptcy shall be deemed as a third party under Article 108 (2) of the Civil Act (see Supreme Court Decision 200Da1624, Jun. 24, 2003).

After finding the facts as stated in its holding, the court below held that since the loan agreement in this case between the plaintiff and the debtor of the bankruptcy debtor, the Japanese Savings Bank (hereinafter " Japanese Savings Bank") is null and void based on the false conspiracy, the defendant, the trustee in bankruptcy of the Japanese Savings Bank, constitutes a third party under Article 108 (2) of the Civil Code, which has a substantial new legal interest based on the legal relationship formed through the false conspiracy, and since there is no evidence to find that all bankruptcy creditors knew that the loan agreement in this case was null and void as a false conspiracy, the trustee in bankruptcy shall be deemed to be a third party in good faith, and therefore the plaintiff cannot oppose the defendant as a false conspiracy, on the other hand, since the loan agreement in this case is merely a third party in good faith, the plaintiff cannot oppose the plaintiff as a false conspiracy. On the other hand, the court below ruled that the loan agreement in this case was null and void as a false conspiracy and void as a false conspiracy, and the

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the scope of "third party", "faith", and the effect of litigation acceptance, or by failing to exhaust all necessary deliberations.

2. The grounds of appeal purporting to the effect that, in light of the fact that the Japanese Savings Bank received a security from an actual debtor with respect to the instant loan agreement and extinguished it, there exist grounds for re-argument that could oppose the Plaintiff to the trustee in bankruptcy, the court below erred by misapprehending the legal principles on the false declaration of agreement and the trustee in bankruptcy, and thus, it does not constitute a legitimate ground of appeal, since it is based on a new argument that is only the first time in the final appeal.

3. The court's exercise of the right to ask for Elucidation is the content of calling for the submission of evidence with an opportunity to correct or supplement it when there is any inconsistency in the party's assertion or any incomplete or unclear part thereof, and urgings the submission of evidence with regard to the disputed facts. The solicitation of submission by suggesting the elements of legal effect which the parties did not assert or the independent means of attack and defense is in violation of the principle of pleading, and thus goes beyond the limit of the exercise of the right to ask for Elucidation (see, e.g., Supreme Court Decisions 2000Da19526, Oct. 10, 200; 2001Da79013, Mar. 12, 2004).

Examining the record in light of the above legal principles, the court below did not err in the misapprehension of the duty of explanation, as alleged in the ground of appeal, since it cannot be said that the Japanese Savings Bank has a duty to explain the security provided by the actual debtor with respect to the instant loan agreement and its extinction.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)