2016Da235015 Action for Avoidance

The Bankruptcy Trustee A of the Bankrupt Corporation

1. E;

2. G.

3. K;

Supreme Court Decision 2015Da235582 Decided December 10, 2015

Busan High Court Decision 2015Na57430 Decided May 18, 2016

December 1, 2016

The part of the judgment of the court below against Defendant G is reversed, and that part of the case is remanded to Busan High Court.

The appeals by Defendant E and K are dismissed, respectively.

The costs of appeal between the plaintiff, defendant E and K are assessed against the defendant E and K.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant E, the lower court, on the grounds as indicated in its reasoning, is a biased act that obstructs equal distribution among bankruptcy creditors by paying only a specific deposit to the creditor in a critical situation where the suspension of business is anticipated, and thus, is subject to intentional avoidance.

The above defendant's assertion that it can not be subject to the exercise of avoidance power because the above act is socially significant act.

The above determination by the court below is just in accordance with the purport of the judgment of remanding. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the subject of denial

In addition, the court below did not clearly decide on the defendant E's assertion that "the deposit and installment savings of not more than 50 million won and not more than 3 other than AB, which are within the scope of the protection of depositors, have been transferred to the account of the defendant E, and shall be evaluated differently from the other Defendants." However, the court below did not err in the decision of the court below rejecting the claim of the defendant E, as alleged in the grounds of appeal, since the payment limit of the deposit money under the Depositor Protection Act is determined on the basis of the defendant E, not more than 3, the deposit owner, and not more than 50 million won, unless there are special circumstances.

2. As to Defendant G’s ground of appeal

According to the records, in this case where the Plaintiff claims the duty to restore the remaining amount, excluding KRW 50 million, which is subject to the Deposit Insurance Act, from the amount of Defendant G’s withdrawal, to the duty to restore the original status, Defendant G did not claim that the Plaintiff “the Plaintiff’s claim is groundless on the ground that the Plaintiff paid KRW 47,946,835, which is the total amount of deposit principal and interest at KRW 79,053,498 as of February 16, 201, and then withdrawn KRW 31,020,971 as of KRW 31,020,971, which is less than KRW 50,000,000,000 which is subject to the Deposit Insurance Act (the reply as of April 8, 2014 and the reply as of July 14, 2014).”

According to the evidence duly admitted by the court below, A withdraws total amount of KRW 79,053,498 from February 16, 201 to 20:55, and withdrawal of total amount of KRW 79,053,498 to Defendant G from total amount of KRW 47,946,835 won and KRW 85,692 deposited in the account for comprehensive passbook loans, and 47,946,835 won out of which were used in the repayment of comprehensive passbook loans. However, although formal deposit withdrawal and collection are treated as separate individuals, the amount actually withdrawn is merely 31,020,971 won, excluding the amount deposited with the repayment of loans, etc. from total amount of withdrawal, but this portion is deemed to constitute a biased act that undermines equal distribution among bankruptcy creditors.

Thus, although the actual deposit amount that Defendant G actually withdrawn does not reach KRW 50 million, the court below accepted the Plaintiff’s claim without making a decision as to this, which affected the conclusion of the judgment by omitting the judgment.

3. As to the grounds of appeal by Defendant K, the lower court, based on its stated reasoning, is subject to denial of intention to pay the deposit to the above Defendant A.

The above defendant's defense can not be the subject of the avoidance power because the above act is socially significant act.

The above determination by the court below is just in accordance with the purport of the judgment remanded, and it did not err by misapprehending the legal principles on the burden of proof as to the social reasonableness and collusion of acts subject to denial, as alleged in the grounds of appeal.

4. Conclusion

The part of the lower judgment against Defendant G is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant E and K’s appeals are dismissed, and the costs of appeal due to Defendant E and K’s appeals are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Kim In-young

Justices Lee Dong-won