[1] Whether a creditor or a third party's act can be subject to avoidance under each subparagraph of Article 391 of the Debtor Rehabilitation and Bankruptcy Act (affirmative with qualification)

[2] In order to deny an enforcement act pursuant to each subparagraph of Article 391 of the Debtor Rehabilitation and Bankruptcy Act, whether there is a special circumstance to deem the enforcement act to be the same as the debtor's act (negative), and in this case, whether the enforcement act satisfies any of the requirements set forth in the above subparagraphs except for the fact of the principal agent (affirmative)

[3] In a case where an execution act is denied pursuant to Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, whether a special circumstance is required to deem that the execution act is practically the same as “a repayment made by the debtor with knowledge that it would prejudice bankruptcy creditors” (affirmative)

[1] Article 391 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 391 and 395 of the Debtor Rehabilitation and Bankruptcy Act / [3] Articles 391 subparagraph 1 and 395 of the Debtor Rehabilitation and Bankruptcy Act

[1] [2] Supreme Court Decision 2009Da76362 Decided November 24, 201 (Gong2012Sang, 16) / [1] Supreme Court Decision 201Da56637, 56644 Decided October 13, 201 (Gong201Ha, 2351)

The plaintiff in bankruptcy of the debtor corporation Sung Chang-solod Co., Ltd., Sung Chang-solod Co., Ltd.

Defendant (Law Firm LLC, Attorneys Jeong Ba-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Na2041949 decided December 15, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. According to the provisions of each subparagraph of Article 391 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), an act subject to setting aside is, in principle, an act of a debtor. However, even if there was no act of a debtor, in cases where it is possible for a creditor or a third party to present the same act as the act of a debtor in collusion with the debtor due to special circumstances, such as the occurrence of an act of the debtor, the act of the creditor or the third party may be subject to setting aside (see, e.g., Supreme Court Decision 2011Da56637, 56644, Oct. 13,

The latter part of Article 395 of the Debtor Rehabilitation Act provides that the right to set aside may be exercised even when the act intended to be set aside is based on an executory act. However, each subparagraph of Article 391 of the Debtor Rehabilitation Act provides for the subject of the act subject to the avoidance power as the debtor, unlike the provision of the subject of the act subject to the avoidance power, Article 395 does not impose any restrictions. The phrase “when the act intended to be set aside is an executory act” is naturally scheduled cases by the enforcement agency, including the executing court, and in such a case, there is no room for involvement of the debtor’s act. Therefore, denying the enforcement act under each subparagraph of Article 391 of the Debtor Rehabilitation Act does not necessarily require any special circumstance to view it as being the same as the debtor’s act. However, even when the right to set aside is exercised, the act of enforcement shall meet the requirements falling under any subparagraph of Article 391 of the Debtor Rehabilitation Act except for the subject of the act (see Supreme Court Decision 2009Da76362, Nov.

Therefore, when denying an enforcement act pursuant to Article 391 Subparag. 1 of the Debtor Rehabilitation Act, special circumstances are required to deem that the enforcement act is practically identical to “a repayment by the debtor with knowledge that the debtor would prejudice any bankruptcy creditor,” such as actively inducing the creditor’s enforcement act by virtue of the nature of intentional avoidance that requires the debtor’s subjective requirements, by virtue of the nature of

B. The court below rejected the plaintiff's intentional assertion as to the act of receiving the dividend of this case on the ground that there is insufficient evidence to acknowledge that the act of receiving the dividend of this case by the defendant Sung Chang-chul Co., Ltd. (hereinafter referred to as " Sung Chang-chul") actively induced the execution of the defendant with the intention of deception or that there is no special circumstance that can be deemed that the act of receiving the dividend of this case is identical in fact with the repayment with Sung Chang-ND with the intention of deception in order to be recognized as an intentional father under Article 391 subparag. 1 of the Debtor Rehabilitation Act as to the act of enforcement.

C. Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the requirements for exercising the right to set aside under Articles 391 and 395 of the Debtor Rehabilitation Act, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. The lower court determined that, inasmuch as the Defendant received the instant dividends in accordance with the procedure stipulated by the Act pursuant to the protocol of mediation established between Sung Chang-don and Sung Chang-don, it did not constitute “a debtor’s obligation or a method or time that does not belong to the debtor’s obligation” under Article 391 Subparag. 3 of the Debtor Rehabilitation Act.

B. Examining the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the requirements for exercising avoidance power under Article 391 Subparag. 3 of the Debtor Rehabilitation Act, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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 Park Sang-ok (Presiding Justice)