[소유권이전등기말소][공1996.7.1.(13),1850]
[1] Whether a fraudulent act against the general creditor is established in a case where the debtor transfers the real estate on which the right to collateral security was established in excess of his/her obligation to a third party, and the price was substituted by the acceptance of the secured obligation (affirmative)
[2] Whether the court has the duty of ex officio examination of evidence where there are no circumstances to suspect the nature of the exercise period of the obligee's right of revocation and its expiration (negative)
[1] Even in a real estate on which the right to collateral security has been established, it shall be limited to the joint security of ordinary creditors within the extent of the balance remaining after deducting the amount of the claim secured by the right to collateral security from the value of the real estate. Thus, in a case where the debtor transferred his/her real estate to a third party with an obligation to pay the proceeds of the transfer by acquiring the obligation secured by the right to collateral security, the debtor shall be deemed to have transferred his/her real estate, which was offered to the joint security of ordinary creditors without having actually paid the proceeds of the sale, to a third party at an unreasonably low price without having actually paid the proceeds of the transfer. Thus, such transfer
[2] Since the period for exercising the creditor's right of revocation under Article 406 (2) of the Civil Code is the period for filing a lawsuit, the court shall ex officio investigate whether the said period is observed, and dismiss the lawsuit for revocation filed after the said period expires as illegal. Therefore, if there is doubt as to whether such period is observed, the court may ex officio examine the evidence to the extent necessary, but even if there is no circumstance to suspect that the period has lapsed when examining all the litigation materials presented to the court, the court does not have an obligation to ex officio examine additional evidence and confirm compliance with the period.
[1] Articles 406(1) and 454 of the Civil Act / [2] Article 406(2) of the Civil Act, Article 124 of the Civil Procedure Act
[1] Supreme Court Decision 88Meu23186 delivered on September 12, 1989 (Gong1989, 1462), Supreme Court Decision 90Meu27198 delivered on November 23, 1990 (Gong1991, 178), Supreme Court Decision 94Da14582 delivered on June 30, 1995 (Gong1995Ha, 2543), Supreme Court Decision 74Da1700 delivered on April 8, 1975 (Gong1975, 8411), Supreme Court Decision 80Da795 delivered on July 22, 1980 (Gong1980, 13035)
Plaintiff 1 and 14 others
Defendant 1 and one other (Defendant, dong Law Firm, Attorney Park Dong-dong, Counsel for the defendant-appellant)
Seoul High Court Decision 94Na37372 delivered on October 5, 1995
All appeals are dismissed. The costs of appeal are assessed against the defendants. In the case of paragraph (3) of the judgment of the court below, "the plaintiff" shall be corrected to "the plaintiff".
We examine the grounds of appeal.
1. Regarding ground of appeal No. 1
Even in a real estate where the right to collateral security has been established, it shall be limited to the joint security of general creditors within the extent of the balance remaining after deducting the secured claim amount from the value of the real estate. Thus, if the debtor transferred his/her real estate to a third party with an obligation over his/her obligation and agreed to substitute the payment by acquiring the secured obligation under the right to collateral security, the debtor shall be deemed to transfer his/her real estate which was offered to the joint security of general creditors at an unreasonably low price without paying the purchase price at an actual rate, and such transfer act shall also constitute a fraudulent act detrimental to the creditor. Therefore, as discussed in the judgment of the court below on the same purport, there is no error of law in the misapprehension of legal principles, and there is no reason to discuss.
2. Regarding ground of appeal No. 2
Examining the relevant evidence in comparison with the records, we affirm the fact-finding by the court below as to the claim or obligation against the plaintiffs or the non-party 1 or the above defendant's credit guarantee fund against the non-party 1, and the judgment of the court below as to the purport that it cannot be viewed that the good faith by the defendant 2, who is the subsequent purchaser of the real estate of this case, is not proven. Thus, it cannot be viewed that there is a violation of the rules of evidence as discussed
3. As to the third ground for appeal
Article 406(2) of the Civil Act provides that a lawsuit for revocation by a creditor shall be filed within one year from the date when the creditor becomes aware of the cause for revocation and five years from the date of the juristic act. Since the above period is the period for filing a lawsuit, the court shall ex officio investigate whether the above period has been observed and dismiss the lawsuit for revocation filed after the expiration of such period as illegal. Therefore, if there is doubt as to whether the period has been observed, the court may conduct an ex officio examination of evidence to the extent necessary. However, even if there is no circumstance to suspect that the period has lapsed when examining all the litigation materials presented to the court through all the litigation materials, the court has no obligation to ex officio examine additional evidence to confirm whether the period has been observed.
Examining the records of this case in detail, there is no evidence to suspect that the plaintiffs had been aware of the fraudulent act of this case from the date of filing the lawsuit of this case until one year ago. Thus, the court below did not ex officio investigate the evidence in order to determine whether the one-year period of filing the lawsuit of this case under Article 406 (2) of the Civil Code has lapsed, and there is no error as discussed in the judgment below. There is no reason to discuss the issue.
4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. Since it is obvious that there is any error in the judgment below, it is corrected. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)