破産管財人이 通情虛僞表示의 法律關係에서 보호되는 제3자에 해당하는지 여부 및 이 경우 ‘善意性’의 判斷基準

The Supreme Court through Judgment 2002 DA48214 adjudged on 2003. 6. 24. has held that a bankruptcy trustee is within the scope of those third persons protected from the fictitious declaration of intention in collusion pursuant to Article 108 Paragraph 2 of the Civil Act. The foregoing judgment was the first case of precedent by the Supreme Court to clear the conflicting views among the lower courts. However, after this judgment were pronounced annotations and comments criticizing the foregoing judgment of the Supreme Court were announced in succession and such criticism garnered considerable support, and even resulted in a judgment in the lower courts that ran directly counter to the foregoing judgment by the Supreme Court. In spite of such controversy the judgment at issue clearly reaffirmed its previous holding that a bankruptcy trustee is a third person protected from fictitious declaration of intention in collusion, and further on shed light on the standard in assessing "acting in good faith". As set forth in the main text the opposing theory is considerably persuasive. However, in light of the fact that the bankruptcy trustee is a party who is carrying out the bankruptcy duties in order to facilitate the fair distribution of proceeds among the bankruptcy creditors and therefore is a third person with a separate legal status from the bankrupting party ; that the Supreme Court interpreted the third person set forth in Article 108 Paragraph 2 of the Civil Act as a third person acting in good faith whose established a practically new legal relationship based on the externally established legal relationship arising from the fictitious declaration of a party other than the fictitious declaration party or their successors, and in the same respect held that an "execution creditor" is deemed as a third party protected from the fictitious declaration of intention in collusion (Supreme Court Judgment 2003DA70041 adjudged on 2004. 5. 28) ; that a bankruptcy judgment has the characteristic of a comprehensive seizure on the total assets of the bankrupt party for the benefit of all bankruptcy creditors as simultaneously with the judgment of bankruptcy the total assets of the bankrupting party is categorized as property divisible for distribution amongst creditors the right to dispose of such assets is divested from the bankrupting party and the creditors do not have the right to exercise their rights individually as they must participate in the bankruptcy procedure in order to satisfy their credit ; that while there is some difference between the act of seizure by the executioner creditor and the ‘effect of seizure arising from provisions of the law’ of the bankruptcy judgment but as the seizures previously exercised by creditors lose effectiveness in the event of a bankruptcy judgment and all other individual compulsory executions are not permitted and as a result circumstances may arise such as certain bankruptcy creditors may have already exercised seizures or the bankruptcy judgment may have been held afterward or the creditors may no longer be able to exercise seizures due to the bankruptcy judgment, considering the seizure effect granted by the bankruptcy judgment comprehensively with the foregoing circumstances that it would be fair to provide the same protection to bankruptcy trustee so long as the execution creditor is protected as a third person, it would be appropriate to deem the bankruptcy trustee as a third person protected from the fictitious declaration of intention in collusion. On the other hand, in considering "acts of good faith and bad faith" it is necessary to consider the intent of recognizing the bankruptcy trustee as a third party protected from the fictitious declaration of intention in collusion. In this light, the judgment at issue’s holding that "As the inclusion of the bankruptcy trustee within the third person set forth in Article 108 paragraph 2 of the Civil Act is due to the fact that the bankruptcy trustee has the status of carrying out with diligence of care the duties of a prudent custodian for the joint benefit of all bankruptcy creditors, the standard of good faith and bad faith cannot be based on the personal good faith or bad faith of the bankruptcy trustee and based on the total bankruptcy creditors the bankruptcy trustee can only be a third person acting in good faith so long as the bankruptcy creditors do not all act in bad faith" is appropriate. The judgment at issue’s holding in relation to the "standard of good faith" is valuable as precedent as such judgment was unprecedented.