Whether a trustee in bankruptcy is a third party when the trustee in bankruptcy makes a false indication of the conspiracy with the property belonging to the bankruptcy foundation (affirmative

The invalidity of a false conspiracy cannot be asserted against a third party in good faith, and it refers to a person other than the party of a false label and the general successor, who has an interest in a new legal cause based on the legal relationship formed externally by a false label. The bankruptcy trustee is a person who performs duties with the care of a good manager for the common interest of the whole bankruptcy creditors. The bankrupt's property belonging to the bankrupt estate is deprived of the right to dispose of the bankrupt by being seized by the declaration of bankruptcy and is transferred to the bankruptcy trustee, and the declaration of bankruptcy has the character of seizure for the whole bankruptcy creditors. Thus, if a third party seizes the object of a false conspiracy, it is reasonable to deem that the legal interest of the bankruptcy trustee is naturally arising from the appointment of a third party at the same time as the seizure and the declaration of intention cannot be asserted against the third party at the same time as the declaration of bankruptcy cannot be asserted by the invalidation of the declaration of intention. The bankruptcy trustee has a legal interest in claiming whether a certain property belongs to the bankrupt estate, regardless of whether a special legal act is appointed by the court.

[1] Article 108 of the Civil Code, Articles 6, 7, and 154 of the Bankruptcy Act

Kim Young-young (Attorney Park Young-young et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Attorney Park Jong-soo, Counsel for defendant-appellant)

Daegu District Court Decision 200Gahap22632 delivered on September 6, 2001

Supreme Court Decision 2002Da48214 Delivered on June 24, 2003

1. The judgment of the court below is revoked.

2. The plaintiff's claim is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

It is confirmed that between the plaintiff and the bankrupt mutual savings bank, the bankrupt, and the bankrupt mutual savings and finance company on September 10, 1998, the borrowed principal of 400,000,000 and interest and all other obligations under the monetary loan contract for consumption of money do not exist.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged as either in dispute between the parties or in full view of the whole purport of the pleading in the entry of the evidence Nos. 1-3 and No. 2 of the evidence Nos. 1-3 and No. 2.

(a)In September 10, 1998, open mutual savings and finance companies (hereinafter referred to as "heat mutual savings and finance companies") prior to bankruptcy, the repayment method to the Plaintiff shall be paid monthly, the repayment date shall be September 10, 200, and on September 10, 2003, the operation funds, interest rate and damages rate shall be determined and publicly notified by the credit cooperative at the rate of 400,000,000 won, and the loan-related documents, such as the loan application form within the contract amount, the credit transaction agreement, etc. shall be prepared and submitted to the open

(b)The heating Depository was declared bankrupt by the Daegu District Court on July 28, 200, as a juristic person established under the Mutual Saving and Finance Company Act for the purpose of mutual credit fraternity business on December 21, 1971, and on March 23, 2001, as the Defendant was appointed as the bankruptcy trustee.

2. Determination of the parties' arguments

(a) A captain;

In addition, the plaintiff did not have any financial transaction so far between the open bank and the non-party 1 who is a director of the open bank in light of the reasons why the loan agreement was concluded in the name of the plaintiff and the actual use of the loan. Thus, the above loan agreement is concluded for the purpose of raising the loan funds, i.e., the management demand of the open bank regardless of the plaintiff. Thus, the above loan agreement shall be null and void as it constitutes a false agreement, and therefore the plaintiff's obligation to the open bank pursuant to the above loan agreement does not exist. Accordingly, the defendant asserts that the loan agreement in this case is not valid since the plaintiff allowed the use of the name to the non-party 1, a director of the open bank in the conclusion of the loan agreement in this case, and submitted the documents directly related to the loan in this case and the certificate of personal seal impression as part of the documents related to the loan, and even if the above loan agreement constitutes a false agreement and thus becomes null and void, the defendant, a trustee in bankruptcy

B. Facts of recognition

The following facts are not disputed between the parties, or are recognized in full view of the whole purport of the pleadings in the descriptions of evidence Nos. 2-1 through 4, 6, 8, 9, 10, 12, 13, and evidence Nos. 3-1 through 3, and evidence Nos. 2 and 3, and contrary thereto, part of evidence No. 2-13 of the evidence No. 2-13 is difficult to believe and contrary to it.

(1)Around September 1998, the non-party stronger who was a major shareholder of the heating Depository (the second half) asked his agent to repay the funds to the non-party representative director, the non-party representative director, and the regular director, within one month, through the exchange of the credit cooperative, which is a director of the original bank, when the funds come to Japan, and to the non-party representative director, the executive director, and to request that the bank take over the cooperative fund in Seoul under the name of the open credit cooperative in Seoul and transfer the funds necessary to attract deposits.

(2)In this regard, it is difficult to refuse the request of the perpetrator, who is a major shareholder (at the time, representative directors and other officers were appointed by the due exchange on behalf of the principal offender). At the end of the audit and re-department, the principal offender shall be given a loan by taking account of the following: Provided, That Article 37 of the Mutual Saving and Finance Company Act and Article 30 of the Enforcement Decree of the Mutual Savings and Finance Company Act prohibit a loan to an investor who owns more than 2/10 of the total number of outstanding voting shares issued by the mutual savings and finance company; however, Article 30 of the same Act prohibits a loan to a third party, taking into account that it is impossible to grant a loan under the name of the principal offender, who is a major shareholder, the principal obligor.

(3) Accordingly, upon explaining the reasons why the money was loaned to the Plaintiff who is a major shareholder to the Plaintiff who made sexual intercourse, etc., and the purport that there is no possibility that the Plaintiff would be liable for the repayment of the above loan to the safe held in the future, upon requesting the Plaintiff to lend the name of the loan, signed on the loan documents and received the seal imprint and the certificate of seal impression, and then made up only the formal credit investigation without any credit investigation or special security on September 4, 199, and then remitted the loan amount of KRW 60,000 under the name of the Plaintiff to the perpetrator, etc.

(4)In response to the request of the principal for further sending of money under the same name as that of the principal offender, 60,000 won out of the loans of 400,000,000 won in the name of the principal offender under the same method on September 10, 1998 (hereinafter referred to as the “instant loan agreement”) was used for the repayment of the loan on September 4, 1998, and then remitted the remainder of 340,000,000 won to the principal offender, etc.

(5)On the other hand, the repayment of the loan was urged to repay the loan from the sexual reciting, etc., but the plaintiff was dissolved on January 14, 200 by the open safe on January 14, 200 by the Financial Supervisory Commission Chairperson and was not urged to pay the loan until the liquidator was appointed.

(c) Markets:

In light of the above, although the plaintiff issued a seal impression and a certificate to a senior director of an open safe and made a self-written signature in the documents related to the loan of this case, the loan of this case was notified that the loan of this case, the user of the loan of this case, the management of an open safe, there was no risk of the plaintiff to bear an obligation from an open safe, and the plaintiff was urged to repay the loan of this case until the dissolution of open safe. In light of the above facts, the open safe bank which is a party to the loan of this case, as a party to the loan of this case, extended a loan to a third party as an actual debtor to avoid the application of Article 37 of the Mutual Saving and Finance Company Act which prohibits an investor from extending a loan to a third party, while preparing the documents related to the loan of this case under the intention of not imposing an obligation as a debtor, and as long as there was no evidence that the loan of this case was lawfully concluded between the plaintiff and the defendant, the plaintiff's assertion that the loan of this case constitutes an open loan agreement of this case without the agreement of this case.

However, the invalidity of a false agreement cannot be set up against a third party in good faith, and it refers to a person other than the party of a false agreement and the general successor, who has an interest in a new legal cause based on a legal relationship formed externally by a false agreement. The bankruptcy trustee is a person who performs duties with the due care of a good manager for the common interest of all bankruptcy creditors. The bankrupt's property belonging to the bankrupt foundation is deprived of the right to dispose of the bankrupt by being seized by the declaration of bankruptcy and is transferred to the bankruptcy trustee, and the declaration of bankruptcy has the character of seizure for the whole bankruptcy creditors. Thus, if a third party seizes the object of a false agreement, it is reasonable to deem that the legal interest of the bankruptcy trustee takes place as a matter of course with the declaration of bankruptcy at the same time as the seizure and the invalidation of the declaration of intention cannot be set up against a third party. Therefore, regardless of whether the bankruptcy trustee appointed by the court, the bankruptcy trustee is a third party in the agreement on the property belonging to the bankrupt foundation, and thus, the plaintiff's assertion that the above loan agreement is null and void.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court below is unfair with different conclusions, the judgment of the court below shall be revoked, and the plaintiff's claim shall be dismissed as per Disposition.

Judges Yellow wood (Presiding Judge) Kim Tae, Taecheon Kim