근저당권설정등기말소
The judgment below
Among them, the part concerning the revocation of fraudulent act and the claim for restitution shall be reversed, and this part of this case shall be applied.
The grounds of appeal are examined.
1. As to the assertion of misapprehension of the legal principles on qualified acceptance
A. A qualified acceptor shall give public notice to the general obligees and testamentary donees within five days from the date of the qualified acceptance to report their claims or testamentary gifts within a certain period (hereinafter “report period”), and to the obligees known, respectively, shall give notice to each obligee to report their claims.
(Article 1032(1) and (2), and Article 89 of the Civil Act. After the expiration of the reporting period, a qualified acceptor shall, as inherited property, effect performance in proportion to each of the claims against the reported obligee and the obligee having knowledge of the qualified acceptor within the said period (hereinafter referred to as “payment in distribution”).
(Article 1034(1) main text of the Civil Act). On the other hand, inheritance creditors and testamentary donees who did not report within the reporting period, and “persons who did not know of the qualified acceptor,” may receive reimbursement only in cases where the remaining portion of inherited property exists.
(The main text of Article 1039 of the Civil Act). Here, whether a qualified acceptor constitutes “a creditor known to the qualified acceptor” pursuant to Article 1034(1) of the Civil Act should be determined at the time of the performance of dividends, not at the time of the notification by the qualified acceptor of claims.
Therefore, even though a qualified acceptor was unaware of at the time of demanding a report on the claim, if there is a creditor who became aware of the fact before the repayment of the distribution was made, that creditor constitutes “a creditor with knowledge of the qualified acceptor,” who can receive a repayment of distribution in accordance with Article 1034(1) of the Civil Act.
B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.
(1) On May 21, 2001, H Union loaned KRW 20,000,000 to I, and C jointly and severally guaranteed the obligation of the I’s loan.
After that, H Union goes bankrupt, and the Korea Deposit Insurance Corporation appointed as a trustee in bankruptcy of the above union is appointed.