[1] The standard for determining the time of establishment of the guarantor's act of guaranteeing the good-faith of a continuous transaction

[2] The scope of "act of a company" subject to avoidance under the Company Reorganization Act

[3] The case holding that where a joint and several liability of the principal debtor under the discount agreement between the creditor and the principal debtor is discounted by the principal debtor within the period during which the avoidance power can be exercised, the joint and several liability of the company prior to the reorganization cannot be deemed to have been performed at the time of discount of the bill, and there is no room for exercising the avoidance power on the ground that the act of discount of the principal debtor cannot be concurrent with the act

[1] The determination of the time when the guarantor's continuing guarantee of transaction relationship between the creditor and the principal debtor took place shall be based on the time of declaration of intent to guarantee, and it shall not be based on the time of actual occurrence of principal obligation and the time of occurrence of specific guaranteed obligation.

[2] The denial under the Company Reorganization Act is, in principle, subject to an act of a company, and in a case where there is only an act of a creditor or a third party without an act of a company, such act may be exceptionally set aside only when a company in collusion with a creditor and has been processed, or when there exist any other special circumstances, concurrently with the company’s act.

[3] The case holding that the right to set aside shall not be exercised on the ground that the joint and several surety by the company prior to the settlement of the obligation of the principal debtor under the discount agreement between the creditor and the principal debtor is performed at the time of settlement, and that the joint and several surety by the company prior to settlement cannot be deemed to have been performed at the time of settlement, and that the act of discount of the principal debtor cannot be concurrent with that of the company prior

[1] Article 428 of the Civil Code / [2] Article 78 (1) of the Company Reorganization Act / [3] Article 428 of the Civil Code, Article 78 (1) 4 of the Company Reorganization Act

[2] Supreme Court Decision 2001Da46761 Delivered on July 9, 2002

Trustee in Bankruptcy and one other (Law Firm Namsan, Attorneys Jeon Dong-jin et al., Counsel for the plaintiff-appellant)

Nasan Co., Ltd., Ltd. (Law Firm Han Light et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na35685 delivered on December 1, 1999

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the first ground for appeal.

The court below held on December 28, 1993 that, based on the evidence of this time, the company's comprehensive financial company prior to the plaintiff's bankruptcy (hereinafter referred to as "company prior to the bankruptcy") entered into a bill discount agreement with the non-party Nasan General Construction Corporation (hereinafter referred to as "non-party 2") within the limit of eight billion won, and that, on December 29, 1993, Nasan Co., Ltd. (hereinafter referred to as "the company prior to the reorganization") entered into joint and several debt guarantee agreements with the non-party company prior to the bankruptcy under this bill transaction agreement with the non-party 1 company prior to the bankruptcy, it was reasonable to view that the above act was conducted under the joint and several debt discount agreement between the company prior to the bankruptcy and the non-party 4 company prior to the bankruptcy, and that the non-party 1 company did not directly act under the above bill discount agreement with the non-party 3.5 billion won prior to the reorganization of the company's debt obligations, it was reasonable to recognize the above act under the provisional company's warranty agreement.

However, the determination of the time when the guarantor's act of guaranteeing the continuing transaction between the creditor and the principal debtor was performed shall be based on the time when the principal debtor expresses his/her intent, and it shall not be based on the time when specific guaranteed obligation occurs as a result of actual occurrence of the principal debt. As long as the guarantee act of the company prior to the reorganization took place on December 29, 193, there is no room for exercising the right of avoidance that can be exercised only for the gratuitous act performed within six months prior to the suspension of payment by the company.

On the other hand, the denial under the Company Reorganization Act is, in principle, subject to a company's act, and in a case where there is only a creditor or a third party's act without any company's act, it may be denied only when the company in collusion with the creditor, or when there exist any other special circumstances, concurrently with the company's act. However, even if the record is examined, it is difficult to find out any trace that the company before reorganization was processed in collusion with the company before reorganization, which was conducted on January 12, 1998, when it was a bill of exchange, which was conducted on January 12, 1998, in collusion with the company before reorganization, and it is difficult to view that there is any circumstance that the company before reorganization was conducted simultaneously with the company before reorganization. Thus, there is no room to exercise the right to set aside.

However, the court below held that there was no act of the company before the reorganization as of January 12, 1998, but it is reasonable to make a legal evaluation as to the act of the company before the reorganization, and that it can be denied under Article 78 (1) 4 of the Company Reorganization Act. This constitutes an unlawful act of misunderstanding the legal principles as to the act of denial or the continuous guarantee under the Company Reorganization Act, and the argument in the grounds of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Yong-woo (Presiding Justice)