[구상금등][공2011상,338]
[1] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act
[2] The criteria for determining a small property subject to the determination in determining whether the debtor's insolvency, which is a requirement to exercise the creditor's right of revocation
[3] In a case where a continuous transactional relationship provides real estate to a certain creditor and supplies goods as security, the debtor's act of creating security interest constitutes a fraudulent act in a case where a continuous transactional relationship is conducted by notifying the purchaser that the supply of goods necessary for the business would be suspended without providing a security for the credit purchase price obligation (negative)
[1] In principle, a claim protected by the obligee’s right of revocation needs to be protected prior to the occurrence of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future, and in a case where a claim has been established by realizing the probability in the near future, such claim may also become a preserved claim of the obligee’
[2] In determining whether an obligor’s insolvency, which is the requirement for the exercise of the obligee’s right to revoke, it is necessary to say that in principle, an act that can be deemed as a fraudulent act has occurred prior to the commission of an act. However, at the time of such fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of an obligation, and there is high probability that an obligation is established in the near future, and in the near future, where the probability is realized and the obligation is established, the obligation should also be included in the obligor’
[3] A debtor's act of establishing security interest is not a fraudulent act unless there are special circumstances, but a debtor's act of offering real estate owned by the debtor as security to any of the creditors can be a fraudulent act in relation to other creditors, unless there are such exceptional cases as the debtor's act of offering real estate owned by the debtor as security to any of the creditors in excess of his/her obligation when the debtor is notified that the debtor will suspend the supply of the goods necessary for his/her business without offering the security for the credit purchase amount obligation from the purchaser in the continuous transaction relationship.
[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code / [3] Article 406 of the Civil Code
[1] Supreme Court Decision 2004Da40955 Decided November 12, 2004 (Gong2004Ha, 2033) / [2] Supreme Court Decision 2000Da30639 Decided September 26, 200 / [3] Supreme Court Decision 2000Da25842 Decided March 29, 2002 (Gong2002Sang, 981)
Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)
Defendant (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2009Na103655 decided July 21, 2010
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. As to the obligee's right of revocation in this case
Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of such fraudulent act, there has already been legal relations that serve as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2004Da40955, Nov. 12, 2004).
According to the reasoning of the judgment below and the records, since the plaintiff's claim for indemnity against the non-party 1, the preserved claim for revocation of the fraudulent act of this case, occurred on December 26, 2008 and January 23, 2009, which was the plaintiff's payment of insurance money, the plaintiff had not yet occurred on July 22, 2008, which was the date of entering into the sales promise of this case seeking revocation as a speculative act, but at that time there had already been a legal relationship in accordance with the performance guarantee insurance, which is the basis of the establishment of the above indemnity claim, and since the non-party company from July 2008 to August 1, 2008, delayed the payment of insurance money to the non-party 1, it was probable that the non-party 1 will bear the plaintiff's claim for indemnity against the non-party 1, which was the joint and several debt guaranteed by the non-party company's performance guarantee insurance against the plaintiff, and thus, it is probable that the plaintiff would actually bear the plaintiff's claim for indemnity against the plaintiff.
We affirm the judgment of the court below to the same purport.
The court below did not err in the misapprehension of legal principles as to preserved claims.
2. As to the debtor's insolvency requirement
In determining whether a debtor's insolvency, which is the requirement to exercise the creditor's right of revocation, is a small property subject to a fraudulent act, in principle, it is required that an act that can be viewed as a fraudulent act has occurred before it was conducted. However, there is a high probability that the legal relationship has already been established at the time of such fraudulent act, and that the obligation is established in the near future because of its legal relationship, and in the near future, if the probability is realized in the near future, the obligation should also be included in the debtor's small property (see Supreme Court Decision 2000Da30639 delivered on September 26, 200).
The court below held that, at the time of the promise to sell and purchase this case, there had already been a legal relationship that serves as the basis for its establishment, and there was a high probability to the effect that the obligation would be established in the near future on the basis of such legal relationship. Since the possibility was realized and the liability for indemnity was actually created, the above obligation for indemnity was included in the non-party 1's non-party 1's small property in determining whether the above obligation for indemnity was insolvent, and that the non-party 1 was in excess of the obligation at the time of the promise to sell and purchase this case. The judgment of the court below is justified in accordance
The court below did not err in the misapprehension of legal principles as to the obligor's excess of the obligation, as alleged in the grounds of appeal.
3. As to the establishment of fraudulent act
Unless there are special circumstances, a debtor's act of creating security rights is not a fraudulent act, but an act of providing real estate owned by a debtor to any of the creditors in excess of his/her obligation as security against another creditor, barring special circumstances, barring such an act of providing real estate as security against another creditor may constitute a fraudulent act in relation to other creditors (see Supreme Court Decision 2000Da25842 delivered on March 29, 2002).
According to the reasoning of the judgment below and the records, the materials supplied by the non-party company from the non-party 2 are Overwork, tent, electric wire, safety extinguishing, and blocking. The purchase size is KRW 3,519,00 for the first half of 207, KRW 66,423,600 for the second half of 207, KRW 142,435,570 for the first half of 2008, and KRW 125,492,100 for the second half of 208, and the non-party company was merely KRW 190,000 for the second half of 208, and the non-party company did not actively pay the new construction price for the non-party 1's new construction site for the non-party 8's new construction site for the non-party 2's right to demand the return of the lease price for the non-party 1's new construction site.
In light of the above legal principles, it can be seen that the economic rehabilitation of the non-party company has a significant impact on the reality of its joint and several liability obligations. However, in light of the status relationship between the non-party 1 and the defendant, the details of the non-party company's business and the materials supplied, the size of supply, and the timing of provisional registration of this case, it is difficult to deem that the non-party 1 provided the non-party company with the real estate as security for
Although it is inappropriate for the lower court to have determined that the pre-contract and the sales contract of this case constituted a fraudulent act, the lower court was justifiable to have determined that the pre-contract and the sales contract of this case constituted a fraudulent act.
Ultimately, the argument in the grounds of appeal disputing this issue cannot be accepted.
4. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Chang-soo (Presiding Justice)