Whether a trustee in bankruptcy is a third party under Articles 108(2) and 110(3) of the Civil Act (affirmative), and the standard for determining whether the trustee in bankruptcy is bona fide (=total bankruptcy creditors)

Where the bankrupt is declared bankrupt by a false declaration of intention in collusion with the other party, the most recent claim belongs to the bankrupt foundation, and the bankruptcy trustee who is in a position independently from the bankrupt upon the declaration of bankruptcy and performs duties for the joint interest of all the bankruptcy creditors, constitutes a third party under Article 108 (2) of the Civil Act, which has a substantial new legal interest based on the legal relationship formed externally by such false declaration, and the good faith and bad faith of the bankruptcy trustee cannot be the basis for the good faith and bad faith of the bankruptcy trustee, and unless all the bankruptcy creditors are in bad faith, the bankruptcy trustee is a third party in good faith. In addition, in light of the fact that the bankruptcy trustee has a status as a third party, barring any special circumstance, the bankruptcy trustee constitutes a third party under Article 110 (3) of the Civil Act, which has a substantial new legal interest based on the legal relationship formed externally by the declaration of intention by fraud, and unless all the bankruptcy creditors are in bad faith, the bankruptcy trustee is a bona fide third party.

Articles 108(2) and 110(3) of the Civil Act; Articles 361(1) and 384 of the Debtor Rehabilitation and Bankruptcy Act

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

The bankruptcy trustee of Hong-Hy Mutual Savings Bank, Inc. and one other than the Korea Deposit Insurance Corporation

Defendant limited liability company (Law Firm 21st century General Law Office, Attorneys Seo-il et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2009Na3189 decided October 30, 2009

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. All property owned by the bankrupt when the bankrupt is declared bankrupt belongs to the bankruptcy trustee, and the right to manage and dispose of the bankrupt estate belongs to the bankruptcy trustee. Thus, the bankruptcy trustee becomes the same status as the general successor of the bankrupt. However, if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure, and the bankruptcy trustee performs his duties with the care of a good manager for the common interest of the whole bankruptcy creditors. Thus, the bankruptcy trustee becomes a third party who has an interest in the property independently from the bankrupt upon the declaration of bankruptcy. Therefore, if the bankruptcy creditor is declared bankrupt by a false declaration of intention in collusion with the other party, the most claim belongs to the bankruptcy estate, and the bankruptcy trustee who performs duties for the common interest of the whole bankruptcy creditor as an independent bankruptcy creditor upon the declaration of bankruptcy, constitutes a third party under Article 108 (2) of the Civil Act (see Supreme Court Decision 200Da31420, Jun. 24, 2003).

In addition, in light of the fact that the trustee in bankruptcy has the status as a third party, barring any special circumstance, the trustee in bankruptcy shall be deemed to be a third party under Article 110(3) of the Civil Act, which has a substantial legal interest based on the legal relationship formed externally by the expression of intention by fraud, and unless all the bankruptcy creditors are in bad faith, the trustee in bankruptcy shall be deemed to be a bona fide third party.

In the same purport, the court below is just to reject the claim of revocation due to the declaration of intent by fraud and the claim of invalidation due to false conspiracy, and there is no error in the misapprehension of legal principles as to a third party in good faith

2. The court below acknowledged the defendant's representative director non-party 1's consent to lending the defendant's name to the non-party 2 at the time of the defendant's loan agreement, and judged that the loan agreement of this case is not in violation of the public order and good morals as stipulated in Article 103 of the Civil Code merely because the non-party 3 and the non-party 2 conspired with the auditor of the bankrupt to conclude the loan agreement of this case in violation of the same person and the loan-related regulations. In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to anti-social legal act asserted in the

3. Therefore, all appeals are 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 Cha Han-sung (Presiding Justice)