[1] Whether the act of guaranteeing or offering security for an affiliated company or family company for the bankrupt without obtaining direct and realistic economic benefits constitutes a gratuitous act subject to avoidance stipulated in Article 64 subparagraph 5 of the former Bankruptcy Act (affirmative)

[2] Whether the exercise of the right by a trustee in bankruptcy constitutes a violation of the good faith principle or an abuse of rights (negative)

[3] The method of exercising the right to set aside by filing a lawsuit and whether the interruption of prescription is interrupted in a case where a lawsuit is filed according to changes in the right relationship arising from the exercise of the right to set aside

[4] In a case where a trustee in bankruptcy exercises the right to set aside a right to set aside a pledge against the bankrupt's act of pledge, whether the trustee in bankruptcy can obtain the effect of restitution separately by denying the exercise of

[5] The meaning of "other benefit" under Article 70 (1) of the former Bankruptcy Act

[6] In case where the creditor uses the security right to the security provided by the guarantor before the creditor is declared bankrupt for the repayment of the credit, and the trustee in bankruptcy of the guarantor who is declared bankrupt receives reimbursement from the principal debtor in subrogation of the creditor, the scope of duty to restore the creditor's obligation according to the exercise of the right to set aside by the trustee in bankruptcy

[7] The effect of dividends that the bankruptcy creditor paid by subrogation, which is the cause of acquiring the bankruptcy claim, constitutes an act subject to denial, and that the bankruptcy creditor files a lawsuit of avoidance against the original creditor, etc., while the bankruptcy creditor files a lawsuit of avoidance (effective)

[8] The purpose of Article 69(2) of the former Bankruptcy Act that limits the duty of a bona fide beneficiary to restore to the current interest, and the meaning of “faith” in this context

[1] The act of guaranteeing or offering security for another person without any obligation constitutes a gratuitous act provided by Article 64 subparagraph 5 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) unless the bankrupt obtains economic benefits for the payment, and this legal principle does not change because the principal debtor is in a so-called affiliated company or family company with the bankrupt. Such gratuitous act is not accompanied by a price, and is highly likely to harm the beneficiary's interest and the general interest of creditors because the act does not result in a special type of denial, taking into account the contents and time of the act, and the bankruptcy procedure is conducted to ensure the satisfaction of all bankruptcy creditors. In light of the above, it is not sufficient that the bankrupt held shares of the principal debtor company as an affiliated company of the principal debtor, or that the principal debtor company issued large amounts of shares of the principal debtor as a collateral, and it does not directly affect the financial benefits of the bankrupt, such as the financial security right, etc. at the time of the exercise of the bankruptcy.

[2] The right to set aside under the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) is the purpose of the system to facilitate the loyalty of the bankrupt estate by denying the act of the bankrupt for the protection of the bankruptcy creditors, and thus, it does not aim at regulating the understanding between the bankrupt and the other party. Thus, in principle, the right to set aside by the bankruptcy trustee cannot be deemed to be against the essence of the right to set aside, or to constitute a violation of the principle of good faith or an abuse of rights, unless the requirements for the

[3] According to Article 68(1) 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), the right to set aside under the Bankruptcy Act shall be exercised not only by filing a lawsuit but also by defense. In this case, the term “exercise by a lawsuit to set aside” means that an act subject to set aside may be performed by means of a lawsuit seeking performance of the duty to restore according to the legal effect that arises when the act subject to set aside loses its effect retroactively, or by filing a lawsuit seeking confirmation of its existence or non-existence, and as such, the interruption of prescription becomes effective in a case where a lawsuit for performance or confirmation is filed due to changes in the relationship of rights arising from the exercise of the right to set aside.

[4] In a case where the act of pledge becomes null and void due to the denial of the act of pledge, a pledge arising therefrom does not exist retroactively, and as long as the pledge does not exist retroactively, it is reasonable to deem that the act of pledge based on it has lost its validity. Since the exercise of a security right cannot be separately exercised with respect to the exercise of a security right under the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005), the trustee in bankruptcy should separately deny the act of pledge, it is not possible to obtain the effect of restitution.

[5] Article 70 (1) 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) provides that "where the act of the bankrupt is denied and where the consideration received exists in the bankrupt estate, the other party may claim the return thereof, and where any benefit arising from the consideration exists in the bankrupt estate, the other party may exercise his/her right as a foundation creditor within the scope of such benefit." The term "other benefit" refers to the benefit that the bankrupt obtains in return for the act of the bankrupt which is the object of avoidance.

[6] The obligee exercised a security right to the collateral provided by the surety before the obligee is declared bankrupt and appropriated for the repayment of the obligation. If the obligee’s bankruptcy trustee, who was declared bankrupt, requests the performance of the obligation on behalf of the obligee on the premise that the repayment of the obligation is effective, and the principal obligor discharges the obligation to the obligee in good faith and without fault to the obligee, the obligee’s exercise of the security right becomes null and void due to the denial of the obligee’s act of providing the foregoing security in the avoidance lawsuit, etc. filed against the obligee by the obligee, even though it is clearly stated that the obligee’s exercise of the security right becomes null and void, and accordingly the obligee’s right as the obligee’s subrogation is retroactively extinguished, the obligee’s performance is valid as repayment to the quasi-Possessor, and the surety’s trustee is not obliged to return the amount that the obligee received from the principal obligor to the obligee. However, even if the obligee fully performs this obligation, the obligee’s exercise of the obligation by subrogation of the surety’s obligee on the ground that the obligee’s exercise of the right to set out the obligation is extinguished.

[7] When a reported claim becomes final and conclusive on the claim inspection date of bankruptcy procedure without objection and entered in the creditor list, the same effect as the final and conclusive judgment takes effect, and even if there are circumstances where a person holding such confirmed bankruptcy claim files a lawsuit of avoidance, etc. against the original creditor who received subrogated payment because the subrogation, which is the cause of acquiring his/her bankruptcy claim, constitutes an act subject to denial, the bankruptcy trustee cannot be deemed to have the authority or obligation to refuse distribution of the confirmed bankruptcy claim of the bankruptcy creditor, solely on such circumstances in a situation where it is unclear whether he/she won or not, unless the original creditor proves that he/she actually performs his/her duty to restore in response to the avoidance power of the bankruptcy creditor and that the original creditor has restored his/her claim and that he/she is treated as a bankruptcy creditor, the former creditor shall not be treated as the bankruptcy creditor. Therefore, under the above circumstances, the bankruptcy trustee paid dividends to the relevant bankruptcy creditor based on the creditor list, etc. under the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act, etc.).

[8] The purpose of Article 69 (2) 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) is to reduce the scope of return in order to protect a bona fide act where the other party to the act was acting in good faith, and limit it to the existing interest by reducing the scope of return in order to protect the act. The reason is that a bona fide beneficiary who received a gratuitous benefit imposes full duty of restoration on the bankrupt even in a case where the beneficiary consumes or loses the pertinent benefit, and the "faith good faith" is that the beneficiary did not know that the act would compromise the bankruptcy creditor at the time of the act to be subject to avoidance later, and that the beneficiary did not know that the suspension of payment or a petition for bankruptcy was made against the bankrupt.

[1] Article 64 subparagraph 5 (see current Article 391 subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act) of the former Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005); Article 64 subparagraph 2 of the Addenda of the Debtor Rehabilitation and Bankruptcy Act (refer to current Article 391 subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act); Article 64 subparagraph 5 (see current Article 391 subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act; Article 397 of the former Debtor Rehabilitation and Bankruptcy Act; Article 2 of the Civil Act / [3] Article 68 (1) (see current Article 396 (1) of the Debtor Rehabilitation and Bankruptcy Act; Article 40 of the former Debtor Rehabilitation and Bankruptcy Act; Article 77 (2) of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 390 of the former Debtor Rehabilitation and Bankruptcy Act); Article 47 (1) of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 481 of the Debtor Rehabilitation and Bankruptcy Act)

[1] Supreme Court Decision 97Da20755 Decided March 26, 199 (Gong1999Sang, 760) Supreme Court Decision 2006Da5044 Decided November 27, 2008 (Gong2008Ha, 1762) Supreme Court Decision 2008Da48117 Decided February 12, 2009 (Gong2009Sang, 318)

A bankrupt person who is a bankruptcy trustee of Dong Dongho kn Pon Ponn Co., Ltd., a bankruptcy trustee of Dongho kon Ponn Co., Ltd. (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Dongyang Integrated Financial Securities Co., Ltd. (Law Firm Namsan et al., Counsel for the defendant-appellant)

Intervenor (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2003Na36821 Delivered on September 14, 2005

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

The grounds of appeal are examined.

1. Whether security and joint and several sureties meet the requirements for avoidance power and whether the exercise of avoidance power constitutes a violation of the good faith principle;

In light of the fact that an act of guarantee or security provided by the bankrupt for another person without any obligation constitutes a gratuitous act provided by Article 64 subparagraph 5 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), unless the bankrupt obtains economic benefits as a result of the act of guarantee or security provided by the bankrupt for another person without any obligation, the act constitutes an act of free payment provided by Article 64 subparagraph 5 of the former Bankruptcy Act. This legal principle does not change because the principal debtor is in the so-called affiliated company or family company with the bankrupt. Such gratuitous act is not accompanied by a consideration, and is highly likely to undermine the beneficiary’s profit and general interest, and thus, it is stipulated as a special type of denial by taking advantage of the content and time of the act, and the bankruptcy procedure is conducted to meet the whole bankruptcy creditors, and it is not sufficient for the bankrupt to readily conclude that the debtor has a large quantity of shares of the principal debtor, an affiliated company, or that it does not directly affect the financial interests of the bankrupt, 97.

On the other hand, the right to set aside under the former Bankruptcy Act is the purpose of the system to facilitate the loyalty of the bankrupt estate by denying the act of the bankrupt in order to protect the bankruptcy creditors, and it does not aim at regulating the understanding between the bankrupt and the other party. In principle, the exercise of the right to set aside by the bankruptcy trustee cannot be deemed as a violation of the principle of good faith or an abuse of rights as long as the requirements for exercising the right to set aside are satisfied,

After finding the facts as stated in its holding, the court below held that the act of offering security and the agreement on joint and several sureties Securities Co., Ltd. (hereinafter "Dong West Securities Co., Ltd.")'s act of offering security was done without compensation by the Seoul District Court on Nov. 25, 1998, which was declared bankrupt on May 28, 1998, and constitutes an act detrimental to the bankruptcy foundation because it is highly likely to undermine the beneficiary power of the East Securities Co., Ltd. and the general interests of the bankruptcy creditors. Furthermore, the court below rejected the defendant's assertion that the plaintiff's exercise of the right to set aside in this case violates the nature of the right to set aside against the nature of the right to set aside, and there is no error in the misapprehension of legal principles as to whether the exercise of the right to set aside in this case constitutes abuse of rights or the violation of good faith principle. The ground of appeal by the defendant and the defendant (hereinafter "the defendant et al.") cannot be accepted.

2. Methods and effects of exercising the avoidance power, whether extinctive prescription expires, and the scope of exercising the avoidance power in this case;

According to Article 68(1) of the former Bankruptcy Act, the right to set aside under the Bankruptcy Act provides that not only the filing of a lawsuit but also the exercise of defense. In this case, the phrase “exercise of the right to set aside by a lawsuit” means that an act subject to set aside may be subject to a lawsuit seeking performance of the duty to restore according to the legal effect that arises when the act subject to set aside loses its effect retroactively, or a lawsuit seeking confirmation of the existence or non-existence of such legal relationship may be brought by means of a lawsuit seeking confirmation of the existence or non-existence of such legal relationship. As can be seen, the interruption of prescription shall take effect in the event of a lawsuit seeking its performance

If the act of pledge is invalidated by denying the act of pledge and the act of pledge becomes void retroactively, it is reasonable to deem that the act of pledge based on the act of pledge has lost its validity as long as the right of pledge does not exist retroactively. Since the act of pledge under the former Bankruptcy Act cannot be separately exercised with respect to the exercise of the right of pledge under the former Bankruptcy Act, the defendant et al.'s assertion that even if the plaintiff should separately deny the act of pledge, it may obtain the effect of restitution.

According to the reasoning of the judgment below and the records, while the plaintiff asserted that he shall exercise the right to set aside against the act of offering collateral as the cause of the claim, and claims based on the legal effect arising from the exercise of the right to set aside, the plaintiff's exercise of the right to set aside is legitimate. In addition, since the plaintiff maintains the purport of denying the joint and several guarantee agreement with the cause of the claim, it is justifiable to reject the defendant's assertion that the joint and several guarantee claim against the same document is offset against the plaintiff's claim for the refund of the deposit in this case on the premise that the joint and several guarantee agreement of the same document remains effective

In addition, according to the records, in this case, the plaintiff argued that "an act of offering the security interest to the defendant on December 17, 1997, the plaintiff exercised the right to set aside against the act of offering the security interest as well as the act of offering the security interest as of November 17, 1997. Thus, the judgment of the court below which rejected the defendant's allegation that the exercise of the right to set aside against the defendant's transfer of the control shares to the defendant's assistant financial company as of February 8, 2000, changed its trade name to the emult comprehensive financial company as of June 29, 201, and the above company was merged with the defendant on December 1, 2001, and thereafter the above company was merged with the defendant on December 11, 2001." Thus, even if the exercise of the right to set aside against the defendant's transfer interest, it is not proper to consider the right to set aside against the deposit interest of this case as of December 197.

In addition, the court below is just in holding that there is no benefit to the plaintiff's exercise of the right to set aside against the act of pledge in this case, and that the progress of extinctive prescription as to the right to set aside under the Bankruptcy Act was interrupted when the plaintiff filed the lawsuit in this case. There is no error in the misapprehension of legal principles as to the method and effect of exercising the right to set aside, the expiration of extinctive prescription as to the right to set aside, and the scope of exercise of the right to set aside

3. Whether an offset agreement or a set-off is recognized;

The court below is justified in holding that there is no room to view that a set-off agreement has been concluded between the securities of the same letter and the money of the same letter after compiling the evidence adopted in its judgment and finding facts as stated in its reasoning.

In addition, although the defendant asserted that the amount of the plaintiff's claim and the amount equivalent to the damages claim amount of the same amount are offset against the plaintiff's claims under the automatic claim, it is reasonable to reject the defendant's counterclaim on the ground that there is no evidence to prove at the court below that the representative of the same document or the officer or employee in charge of the same amount belongs to the ordinary bond at the time of the act of the pledge of this case, and there is no evidence to prove that the representative of the same document or the officer or employee in charge has to execute the bill discount loan, and there is no error in the misapprehension of legal principles as to the establishment of the set-off agreement and the right to claim damages, incomplete deliberation, and violation of the rules of evidence

4. Timing of deduction from the balance after settlement;

Article 70(1) of the former Bankruptcy Act provides that "if the act of a bankrupt is denied, and any benefit in return exists in the bankrupt estate, if such benefit in return exists, the other party may claim the return thereof and, if any benefit in return exists, may exercise his/her right as a foundation creditor within the scope of such benefit." Here, the benefit in return refers to the benefit acquired by the bankrupt in return for the act of the bankrupt which is the object

After finding the facts as stated in its holding, the court below determined that the 15 billion won should have been paid on February 16, 1998, and that the Plaintiff paid 111,092,791 won out of the 197 deposit money to the 14,88,907,209 won (i.e., 15 billion won ? 15 billion won ? 111,092,791 won) and that the 111,092,791 won was already paid on December 19, 1997, and that the 14,888,907,209 won should have been paid on the 16, 1998 deposit money (i.e., the 15 billion won ? 111,092,791 won, which was paid on the basis of the right to claim the return of unjust enrichment from the 15th,000 won deposit money to the Plaintiff cannot be accepted on the ground of appeal.

5. Scope of duty to restore following the exercise of the avoidance power;

A. The obligee exercised a security right to the collateral provided by the surety before the obligee is declared bankrupt and appropriated for the repayment of the obligation. If the obligee’s bankruptcy trustee who was declared bankrupt requests performance on behalf of the obligee on the premise that the repayment of the obligation is effective, and the principal obligor discharges the obligation to the obligee in good faith and without fault on behalf of the obligee, even though the obligee’s bankruptcy trustee denies the obligee’s act of providing the above security in the avoidance lawsuit, etc. filed against the obligee, and thereby the obligee’s repayment becomes null and void, and accordingly the obligee’s right to the obligee’s subrogation is retroactively extinguished, the above repayment of the principal obligor is valid as repayment to the quasi-Possessor, and the guarantor’s bankruptcy trustee is not obligated to return the amount repaid from the principal obligor to the principal obligor. However, even if the obligee fully performs this obligation, the portion of the obligation that the obligee was repaid on behalf of the surety among the obligee’s claims against the principal obligor is extinguished on the ground that only the remainder of the obligation is extinguished, and only part of the obligee is lost.

In such a case, it is contrary to the principle of fairness to require the creditor to fully restore the guarantor to the trustee in bankruptcy. Therefore, it is reasonable to view that the trustee in bankruptcy of the guarantor cannot seek restitution from the creditor on the ground that the right to set aside is exercised within the scope of a part of the creditor's claim that he loses by obtaining reimbursement from the principal debtor in subrogation

On the other hand, when the reported claim becomes final and conclusive on the claim inspection date of bankruptcy procedures without objection and entered in the creditor list, the same effect as the final and conclusive judgment takes effect, and even if there are circumstances where a person holding the same bankruptcy claim files a lawsuit of avoidance, etc. against the original creditor who has been subrogated, who is the cause of acquiring his/her bankruptcy claim, the act of avoidance, etc. against the original creditor, which is the cause of acquiring his/her bankruptcy claim, the bankruptcy trustee cannot be deemed to have the authority or obligation to refuse distribution of the confirmed bankruptcy claim of the bankruptcy creditor, solely on the circumstances in which it is unclear whether he/she won or not, unless the original creditor proves that he/she actually performs his/her duty to restore in response to the avoidance power of the bankruptcy creditor and that the original creditor has restored his/her claim, and the bankruptcy trustee cannot be treated as the original creditor as the bankruptcy creditor, so the dividends paid to the bankruptcy creditor's confirmed bankruptcy claim in accordance with the former Bankruptcy Act

B. (1) According to the reasoning of the judgment below and the record, the plaintiff filed a report on the subrogated amount claim in the bankruptcy procedure for the Dong Seo Seo Dong Seoung, alleging that the plaintiff subrogated to the claim for a loan to Dong Seo Seo Seong Pung Ping due to the execution of the right of pledge in this case after the bankruptcy of Dong Seo Ping was declared, and the subrogated amount claim is confirmed on the claim inspection date of April 27, 2001 and stated in the creditor list, and the trustee in bankruptcy of Dong Seo Pungping paid 2,840,284,930 won in total on two occasions on January 17, 200 and July 22, 2003 on the basis of the above creditor list, etc., and on the other hand, on November 24, 200, before receiving the dividend as above, he could not be found that the plaintiff filed a lawsuit against the Seoul Central District Court for the avoidance power of the claim in this case against the plaintiff at the time of exercising the right of claim in this case.

In light of the above legal principles and the above facts, it is reasonable to view that the trustee in bankruptcy in the Dongi-Peing paid dividends to the Plaintiff with bankruptcy claims confirmed on the basis of the above creditor list, etc. is valid as repayment to the quasi-Possessor of the claim. Therefore, the part equivalent to the above dividends out of the loan claims in this case is extinguished. In this case, even if the Defendant is liable to restore to the Plaintiff due to the exercise of the right to set aside in this case, if the Plaintiff is fully obligated to restore to the Plaintiff, among the loan claims in this case, the part equivalent to the amount paid to the Plaintiff out of the loan claims in this case is extinguished as above and only the remainder is restored. If it is recognized as valid as repayment to the quasi-Possessor who paid dividends, it is against the principle of equity to require the Defendant to fully perform the duty to restore. Therefore, it is reasonable to deem that the Plaintiff cannot seek restitution to the Defendant on the ground of the exercise of the right to set aside against the Defendant's partial loan claims that were lost by the Plaintiff by taking

(2) In addition, the reasoning of the judgment of the court below and the records revealed that prior to the bankruptcy declaration of the fact that this case's deposit claims against the class loan of the same class of the securities were offset against the loan claims against the class of the same class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class. The class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class. 2, the class of the class of the class of the class of the class.

As above, in light of the fact that the Plaintiff’s total amount of KRW 9,025,00,00,00, which the Plaintiff received prior to the bankruptcy of the Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dongung, reported all of the claims held by the Plaintiff, such as the subrogation payment claim under the premise that the execution of the pledge right is valid, and the payment is made therefor, the above amount must be subject to an express or implied agreement between the Plaintiff and Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong's claim for a short-term loan not the above subrogation payment claim. Therefore, if the court below deliberated and decided on this point, and it is recognized that some of the subrogated payment was appropriated for the repayment of the above amount, it should be examined and decided within the extent of the right to claim restitution of the Defendant.

(3) Nevertheless, the court below held that the above amount cannot be deducted from the amount to be returned by the defendant to the plaintiff as the performance of duty to restore to the plaintiff according to the right to set aside in this case on the ground that the plaintiff received dividends in the bankruptcy procedure of the Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong party because it was paid without any legal cause to the bankruptcy estate of Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Factoring, and that the plaintiff's money received from Dong Dong Dong Dong Dong Dong factoring was fully satisfied only with short-term loans which are short-term loans, which are other claims before Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong factoring's bankruptcy. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the exercise

6. Scope of return of beneficiaries in good faith;

Article 69(2) of the former Bankruptcy Act provides, “Where an act falling under Article 64 subparag. 5 is denied, if the other party acted in good faith at the time of the act, the return shall be made within the limit of the benefit.” Here, the good faith refers to where the beneficiary did not know that at the time of the act to be set aside later between the bankrupt and the bankrupt, the act was detrimental to the bankruptcy creditor and that payment suspension or bankruptcy petition was filed against the bankrupt. In cases where the act to be set aside is a gratuitous act, if the other party to the act was bona fide and bona fide, the scope of return is reduced to protect the said act, and the purpose of restricting it to the existing interest by reducing the scope of return in order to protect the said act is to impose full duty to the company even in cases where a bona fide beneficiary who received a gratuitous benefit uses or loses such benefit.

First of all, although the deposit and loan of the instant money were made on the same day, the parties to the contract should be treated as a separate legal relationship depending on the difference between the parties to the contract, and it cannot be said that the funds deposited into the crypact at the same time as the funds deposited into the crypact were introduced at the same time when the crypact was purchased at the discounted price of the cryp, and thus, the profits remaining in the crypact cannot be seen as only 0.5% brokerage commission, as

On the other hand, in the case of this case, if the warning money is regarded as a bona fide beneficiary, the benefits to return the warning money due to the denial of the pledge act of this case shall, in principle, be the amount equivalent to the secured debt extinguished by the pledge execution act of this case among the principal and interest on the deposit of this case at the time of the enforcement of the pledge right of this case, and the interest shall be paid

According to the reasoning of the judgment of the court below, on December 12, 1997, Dong Do k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k, k k k k k k k k k k k k k k k.

Nevertheless, the court below held that even if ordinary income is a bona fide beneficiary, its existing profit is equivalent to the amount of deposit claim of this case which was not returned due to the execution of the pledge right of this case because it is consistent with the scope of the claim for refund of deposit of this case. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of return of existing interest where the other party of the right to set aside free profit is bona fide, and it has affected the conclusion of the judgment. Therefore, the part pointing this out in the grounds of appeal by the plaintiff and the defendant

7. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)