Whether a trustee in bankruptcy constitutes “third party” under Article 108(2) of the Civil Act that is protected in the legal relations of false declaration of conspiracy (negative)

Even if the right to dispose of the bankrupt property is transferred to the bankruptcy trustee due to a declaration of bankruptcy, the subject of rights and obligations belonging to the bankrupt estate still has no change in the attribution of rights and obligations as the bankrupt person, and even if the bankruptcy trustee becomes a party in a lawsuit related to the bankrupt, it is merely a representative or representative of another person's rights based on the bankrupt's rights without being subject to the substantive law or the legal effect of the litigation law. Thus, a third party who was under a legal relationship with the bankrupt before the declaration of bankruptcy is forced to change the contents of legal relations due to the contingency of the bankruptcy of the other party, and a third party who was under a legal relationship with the bankrupt before the declaration of bankruptcy, is forced to change the contents of legal relations due to the circumstance of the bankruptcy of the other party, while the bankrupt does not constitute a "third party" under Article 108 (2) of the Civil Act, which is protected in the legal relations protected by false agreement.

Article 108 of the Civil Act, Article 7 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 384 of the Debtor Rehabilitation and Bankruptcy Act), and Article 152 (see current Article 359 of the Debtor Rehabilitation and Bankruptcy Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Korea Deposit Insurance Corporation (Law Firm F1, Attorneys Doh-ho et al., Counsel for the bankruptcy)

Microfinance (Attorney Kim Jae-ro, Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2005Da40271 Delivered on July 8, 2005

June 2, 2006

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

1. Purport of claim

The defendant shall pay to the plaintiff 649,939,857 won with 25% interest per annum from November 22, 2000 to full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts do not conflict between the parties, and Gap evidence Nos. 1 and 2 (the Promissory Notes, the defendant's defense that the Promissory Notes were forged, but considering the overall purport of the arguments as stated in Gap evidence No. 7, it can be acknowledged that the stamp image affixed on the Promissory Notes is based on the seal reported by the defendant to the open mutual savings and finance company for the bankrupt (hereinafter "mutual savings and finance company for the company other than the company") and it is presumed that the authenticity of the above stamp image is established, and some testimony of the non-party 1 of the witness of the court of the trial who seems contrary to this presumption is difficult to believe, and there is no reason for the defendant's defense as above.)

A. On January 15, 1999, according to the introduction of Nonparty 1, who was a bond company that was engaged in commercial bills discounts against himself, Nonparty 1 entered into a credit-limit trading agreement with the Defendant on January 15, 199, stating “no later than January 14, 2002, interest rate of 14% per annum, and delay damages rate of 25% per annum” (the credit limit was finally set at KRW 3,00,000,000, not on the date of the agreement).

B. After entering into the above credit transaction agreement, the Defendant reported the employee identification to be used for the transaction with the Nonparty’s credit cooperative upon Nonparty 1’s request, and delivered it to Nonparty 1, thereby allowing Nonparty 1 to use the Defendant’s name to make a transaction with the Nonparty’s credit cooperative at his own discretion.

C. On October 19, 200, Nonparty 1 issued a promissory note 650,00,000 won at face value, and the due date November 21, 2002 under the name of the Defendant using the above employees who received from the Defendant on October 19, 200, to Nonparty 1 borrowed KRW 650,00,000 (the actual amount is KRW 641,72,603,00,000 (the amount of discount is KRW 8,227,397; hereinafter “the instant loan”) in the name of the Defendant.

D. The non-party credit cooperative made payment of the above Promissory Notes at the due date, but refused to pay them, and on October 24, 2003, KRW 60,143 of the balance remaining in the deposit account in the name of the defendant on October 24, 2003 is KRW 649,939,857 of the loan principal of this case, which was not paid at present.

E. Meanwhile, on November 23, 2000, the non-party credit cooperative was designated as an insolvent financial institution by the Financial Supervisory Commission, and was declared bankrupt on May 14, 2001 by the Seoul District Court, and on May 2, 2003, the plaintiff was appointed as the bankruptcy trustee.

2. Determination:

(a) Occurrence of obligation to repay loans;

According to the above facts, the Defendant, as the title holder of the instant loan, is obligated to pay the Plaintiff the amount of KRW 649,939,857, which is the balance of the instant loan, and damages for delay at the rate of 25% per annum, which is the date following the due date of the said Promissory Notes, from November 22, 2000 to the date of full payment.

B. The defendant's assertion and judgment

(1) The Defendant asserts to the effect that “The actual debtor of the instant loan agreement is the non-party 3 corporation (hereinafter “non-party 3 corporation”) who is the major shareholder of the non-party credit cooperative and the actual manager, and the non-party 3 company is merely using the defendant’s name as a means of avoiding the application of the investor loan loan provisions under the former Mutual Saving and Finance Company Act. Therefore, the non-party credit cooperative and the defendant did not form a monetary loan contract.”

In full view of the evidence cited above and the purport of the whole argument in the testimony of the non-party 1, the defendant, upon the request of the non-party 1, ordered the non-party 1 to conduct discount transaction using his own name. The defendant visited the non-party 1 and affixed his seal impression on the credit limit transaction agreement. The defendant, after entering into the credit transaction agreement of this case, reported the employees' seal impression to be used for transaction with the non-party 1, and agreed between the non-party 1 and the non-party 1 to assume all the responsibility of the defendant even if any of the following problems arises, it can be acknowledged that the above employees' seal impression should be delivered to the non-party 1, and the defendant arbitrarily delegated it to the non-party 1 whenever necessary. Thus, even if the defendant was merely a person who borrowed his name in the form of name and the actual debtor exists for the loan of this case, the defendant's assertion that this case's loan of this case cannot be justified.

(2) In other words, the defendant asserts to the effect that "the defendant is merely a debtor in the form of the loan of this case, and the non-party credit cooperative also implemented the loan of this case in the name of the defendant under the intention of not bearing the obligation of the loan of this case with the knowledge of such circumstance, and therefore, each of the loan agreements in the name of the defendant constitutes invalid legal acts that constitute false conspiracy."

(A) According to Article 37 of the former Mutual Savings and Finance Company Act (amended by Act No. 6429 of March 28, 2001) which limits the loan to the non-party 1, who was merely the non-party 4, and Article 30 of the Enforcement Decree of the same Act, if the actual principal debtor wants to obtain the loan in the form of a principal debtor, and the third party was prepared with the intention of not taking responsibility as the debtor for the loan in the name of the non-party 1, the third party is merely a person who borrowed the loan in the form of a third party and the substantial party to the loan contract is a financial institution and the substantial principal debtor, so the loan agreement made in the name of the non-party 1 in the name of the non-party 4 without the consent of the non-party 1 and the non-party 2's representative director's consent to the above loan in the name of the non-party 1 and the non-party 1's consent to the above loan without the consent of the non-party 1's representative.

(B) On this issue, the Plaintiff asserted to the effect that “the Plaintiff constitutes a third party under Article 108(2) of the Civil Act, which has a new interest based on the external legal relationship formed by such false representation, as it is a bankruptcy trustee who performs his duties for the joint interest of all bankruptcy creditors as an independent status with the bankrupt, (see Supreme Court Decision 2002Da48214, Jun. 24, 2003). Therefore, the Defendant cannot oppose the Plaintiff by a false conspiracy.”

Therefore, regarding whether the plaintiff is a third party in the legal relations of the bankrupt, and ① the Civil Act is null and void as a matter of principle, but it aims to ensure the safety of transactions by protecting a person who has trusted his/her appearance. Here, the third party is a person other than the party with false indication and the general successor, and it is difficult to independently consider the bankruptcy trustee as a "third party who has entered into a substantive legal relationship with the bankrupt," and ② Even if the right to dispose of the bankrupt property is transferred by the declaration of bankruptcy, it is unreasonable to view that the legal status of the bankrupt as the subject of the rights and obligations belonging to the bankrupt estate is not identical to that of the third party in the case of the bankruptcy (see Supreme Court Decision 80Da10081, May 1, 2005). It is reasonable to view that the bankruptcy trustee's legal status is not identical to that of the third party in the case of the bankrupt who has entered into a false agreement with the bankrupt, and thus, it is unreasonable to view that the legal status of the bankrupt party itself is not subject to legal action under the Bankruptcy Act.

Furthermore, even if the trustee in bankruptcy affirms the "third party nature of the trustee in bankruptcy", the trustee in bankruptcy shall determine whether the trustee in bankruptcy has good faith or bad faith at the time of appointment of the trustee in bankruptcy, and in full view of the statement No. 14-1 of the evidence No. 14 and the testimony of Nonparty 1 by Nonparty 1 of the witness at the trial, the plaintiff, who was much more before he was appointed as the trustee in bankruptcy, investigated the cause of insolvency to the non-party 1 from April 4, 2001 to April 24 of the same month, and confirmed the "the fact that the non-party 2 was receiving instructions from the non-party 2, who was the actual management owner of the non-party 2 and provided funds to the non-party 3 using the name of the third party such as the defendant, etc." (as seen earlier by the Financial Supervisory Commission, while taking measures for the management of the non-party 1's credit cooperative, the plaintiff was appointed as the trustee in bankruptcy to ascertain the name of the non-party 3.

(C) Therefore, the defendant's above defense seems to be any reason.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair as it differs from the judgment of the court of first instance, and it is revoked by the defendant's appeal and dismissed the plaintiff's claim.

Judges Lee Jae-chul (Presiding Judge)