[구상금등][공2008하,968]
Where a lawsuit for revocation of multiple fraudulent acts and a claim for restitution is pending or consolidated and thus compensation for the value is to be ordered as a result of a proceeding in one proceeding, the extent of the amount that the court is to order the return.
Each obligee meeting the requirements for obligee’s right of revocation may seek revocation of the obligor’s disposal of his/her own rights and restitution thereof. Accordingly, where multiple creditors are pending in a lawsuit for revocation of a fraudulent act and for restitution, a judgment ordering revocation of a fraudulent act and restitution thereof shall be rendered at the obligee’s request in each lawsuit. In cases where the beneficiary or subsequent purchaser is obliged to compensate for the value, the beneficiary, etc. does not order the return of the value to be returned to each obligee within the extent divided by the obligee in proportion to the obligee’s claim amount. In addition, each obligee’s return of the total amount of the preserved claim amount should be ordered within the extent of the value to be returned by the beneficiary, etc.
Article 406(1) of the Civil Act; Article 141 of the Civil Procedure Act
[Plaintiff-Appellant] Plaintiff 2005Da51457 decided Nov. 25, 2005 (Gong2006Sang, 28) Supreme Court Decision 2007Da84352 decided Apr. 24, 2008 (Gong2008Sang, 792)
Gyeonggi Credit Guarantee Foundation (Attorney Jeong-nam, Counsel for defendant-appellant)
Defendant 1 and one other
Seoul High Court Decision 2007Na74951, 80178 decided December 18, 2007
Of the part against the plaintiff in the judgment of the court below, the part against the plaintiff 159,304,231 won and damages for delay are reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the plaintiff are dismissed.
The grounds of appeal are examined.
1. Each obligee meeting the requirements for obligee’s right of revocation is entitled to revoke the obligor’s disposal of his/her own right and seek restitution thereof. Thus, in cases where multiple creditors are pending in a lawsuit for revocation of a fraudulent act and a claim for restitution, a judgment ordering revocation of a fraudulent act and restitution shall be rendered at the obligee’s request in each lawsuit. In cases where the beneficiary or subsequent purchaser is obliged to compensate for the value, the beneficiary, etc. does not order the return of the value to be returned to each obligee within the extent of proportional distribution by each obligee in proportion to the obligee’s claim amount. However, the beneficiary, etc. should order the full return of the amount of the preserved claim by each obligee within the extent of the value to be returned by the beneficiary, etc. (Supreme Court Decision 2005Da51457 Decided November 25, 2005). The same holds true even in cases where each nominal obligee’s claim for revocation of a fraudulent act and a lawsuit for restitution, which are instituted by a single obligee,
According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and determined that the sales contract between the non-party 1 and the defendant 1 on March 1, 2006 with respect to the apartment of this case constitutes a fraudulent act and the amount of KRW 560,00,00,00, which is the value of the apartment of this case, shall be revoked within the limit of KRW 249,018,920, which deducts the total amount of the secured debt of the mortgage which was cancelled on the apartment of this case at the time of the fraudulent act from the total amount of KRW 310,981,080,00, which was the value of the apartment of this case. In addition, according to the facts established by the court below, the secured claim against the non-party 1 against the non-party 1 is more than the value of the apartment of this case. In this case, the court below should have ordered the plaintiff to pay the plaintiff the amount of KRW 249,018,920.
Nevertheless, the court below ordered the payment of only KRW 89,714,689 against the plaintiff, on the ground that it is reasonable for several creditors to claim revocation and restitution of fraudulent act to the beneficiary, etc., and that in case where the total amount of the obligees' claims exceeds the amount of compensation for damages to the beneficiary, etc., the beneficiary, etc. should pay the amount of compensation in proportion to the ratio of the obligees' amount of claims to the obligor against the non-party 2, in proportion to the amount of claims against the non-party 2 and the amount of claims against the plaintiff. In so doing, the court below erred in the misapprehension of legal principles as to the scope of the value to be returned by the beneficiary in case of revocation of fraudulent act,
2. Of the instant sales contract, the revocation of fraudulent act and the part concerning the claim for compensation for value in excess of the limit of KRW 249,018,920 are not separately indicated in the grounds of appeal.
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. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)