공격방어방법으로서의 부인권행사에 관한 연구 (대상판결 : 대법원 2009. 5. 28. 선고 2005다56865 판결)

The avoidance power of the bankruptcy law is generally compared to the revocation power of the obligee in the civil law. But there is big difference between them. We don't have enough precedents and researchs on the avoidance. The Supreme Court Decision is on the case in which the debtor furnished the defendant with his bank deposit as the security to help another company by 'bridge loan'(which in Korea means A deposits some money with B and B lends the money to C. It is done for A to help B, but A cannot help C directly with some reasons.) through the defendant and the defendant took the deposit by a setoff at a late day. The plaintiff(the debtor's receiver) have tried to avoid the act of furnishing security with success. The Decision shows lots of interpretation for the bankruptcy law. Its conclusion is almost right. But it made the same mistake which the rulings of the district court and the high court had done that it misunderstood the essential element facts for the return of bank deposit. It mistakenly applied the bankruptcy law to the returning issue. But the statute of unjust enrichment from the civil law should have been applied. It is important that the mistake affected the decision's conclusion Through the Decision, I come to know that understanding what the avoidance power means in the civil procedure is very important as well. Additionally, this essay touches these issues; first, whether the statute of unjust enrichment from the civil law should be applied together with the bankruptcy law, second, how the delinquency charge should be accrued.