[소유권말소등기][공2002.2.1.(147),275]
[1] The scope of revocation of a fraudulent act and the method of reinstatement where the establishment registration of a neighboring mortgage was cancelled after the fraudulent act was committed with respect to real estate established as a right to collateral
[2] Whether the amount of a claim that a creditor is entitled to exercise the obligee's right of revocation includes interest or delay damages incurred after the fraudulent act and until the closing of argument at the trial court (affirmative)
[1] In the event that an act of donation of real estate on which the right to collateral security was established constitutes a fraudulent act, if such real estate was donated and the registration of collateral security was cancelled, cancelling the donation contract and returning the ownership of the real estate itself to the debtor would be unfair because it would result in restoration to the portion which was not provided as the joint collateral of the general creditors. Thus, the creditor is bound to claim partial cancellation of the donation contract and compensation for the value thereof within the extent of the balance remaining after deducting the secured amount from the
[2] When a creditor exercises the creditor's right of revocation, in principle, he/she cannot exercise the right of revocation in excess of his/her claim amount, but at this time, the creditor's claim amount includes interest or delay damages incurred by the time of the conclusion
[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code
[1] Supreme Court Decision 97Da6711 decided Feb. 13, 1998 (Gong1998Sang, 727), Supreme Court Decision 98Da41490 decided Sept. 7, 199 (Gong1999Ha, 2066), Supreme Court Decision 99Da50101 decided Nov. 9, 199 (Gong1999Ha, 2471), Supreme Court Decision 2000Da66416 decided Sept. 4, 2001 (Gong2001Ha, 2162) / [2] Supreme Court Decision 2000Da66416 decided Sept. 4, 2001 (Gong201Ha, 201Ha, 2162)
Plaintiff
Defendant
Seoul District Court Decision 2001Na8454 Delivered on September 6, 2001
The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court.
1. Where an act of donation of a real estate on which the right to collateral security was established constitutes a fraudulent act, if the ownership of the real estate was cancelled after the donation of the real estate and the registration of the establishment of the neighboring mortgage was cancelled, the cancellation of the donation contract and the restoration of the ownership of the real estate itself to the debtor would be unfair because it would result in restoration to the portion which was not provided as the joint collateral of the general creditors. Thus, the creditor has to claim partial cancellation of the donation contract and compensation for the value thereof within the extent of the balance remaining after deducting the secured amount from the value of the real estate (see, e.g., Supreme Court Decisions 9Da50101, Nov. 9, 1999; 2000Da66416, Sept.
The court below held that on November 25, 1997, the plaintiff filed a lawsuit against the non-party 1 for the claim for the check payment against the non-party 1, "the non-party 1 was sentenced to the plaintiff 2,000 won and the non-party 2's establishment registration was cancelled, and the real estate donation contract between the defendant and the non-party 1 constitutes a fraudulent act, and the amount equivalent to 2,500 percent per annum from August 20, 1997 to October 11, 1997, and the next decision became final and conclusive as it is. The non-party 1 donated the real estate of this case to the defendant who is his wife, and completed the registration of transfer of ownership in the name of the defendant on September 1, 1997, where the lawsuit was pending, and the non-party 1 did not err in the misapprehension of legal principles as to the transfer of ownership or the cancellation of the registration of the non-party 1's establishment of the real estate of this case.
2. The lower court determined that the scope of the Plaintiff’s right of revocation is limited to KRW 20,042,739, including KRW 20,000,00,000, which is the amount of the claim at the time of the fraudulent act and KRW 42,739,000,000 per annum from August 20, 1997 to September 1, 1997.
However, when a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount, but at this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the time of the closing of argument in fact-finding proceedings (see Supreme Court Decision 2000Da66416, Sept. 4, 2001). Thus, the plaintiff may exercise his/her right of revocation as to damages for delay pursuant to the above final and conclusive judgment from the date of the closure of argument in the court below after the fraudulent act. Nevertheless, the court below erred by misapprehending the legal principles as to the scope of exercise of the right of revocation and thereby affecting the conclusion of the judgment. The plaintiff'
3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition.
Justices Zwon (Presiding Justice)