[2] Where the debtor disposes of several real estate at the same time to several beneficiaries in excess of his/her obligation, and the creditor claimed revocation of fraudulent act and restitution to the original state by designating the beneficiary as a co-defendant, the extent of the amount to be ordered by the court to be returned to each beneficiary when the aggregate of the value of the responsible property to be recovered by each beneficiary exceeds the creditor's secured claim amount

[2] Even if a creditor filed a claim for revocation of a fraudulent act and restitution to the original state against a certain beneficiary (including the person who acquired it), and the judgment became final and conclusive, as long as the creditor did not complete recovery of the property or value therefrom, the creditor may separately file a claim for revocation of a fraudulent act and restitution to the other beneficiary based on his/her preserved claim, and where the creditor has pending several lawsuits against multiple beneficiaries, a judgment ordering revocation of a fraudulent act and restitution to the original state shall be rendered upon the creditor's claim. Even if the beneficiary is obliged to compensate for the value, the beneficiary shall order the return of the entire amount of the preserved claim to the extent of the value that the beneficiary should return without considering the result of other lawsuits. This legal principle also applies where the creditor is in excess of the amount of the creditor's obligation to be restored by seeking revocation of a fraudulent act and restitution to the original state by having the beneficiary as a co-defendant.

1. Regarding ground of appeal No. 1

After finding facts as stated in its reasoning based on its adopted evidence, the court below rejected the Plaintiff’s assertion that, in this case, the Plaintiff had a duty to pay KRW 1,464,113,715, which was the aggregate of the amounts paid by the Plaintiff under each development agency contract of this case and each sales agency contract of this case or the amount borne by the service company for the payment of money, but the Plaintiff has a duty to pay KRW 598,129,40,00, out of the amount received from the Hanam Ocean. Thus, the lower court determined that the Plaintiff’s obligation to pay the settlement of accounts to the Plaintiff of the Hanam Ocean remains at KRW 865,984,315, and the lower court rejected the Plaintiff’s assertion that there was no evidence to acknowledge that the sales agency contract between the Plaintiff and the Hanam Ocean was terminated due to the Plaintiff’s failure to perform the duty to pay business profits and the Plaintiff did not pay damages incurred by the termination of the contract for the reasons that the Plaintiff had already agreed to pay the remainder of the contract to the Plaintiff.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence or incomplete deliberation as to the termination of a sales agency contract, the termination of the obligation to pay the settlement of the Hanam-doel, or the scope of the remaining obligation for the settlement of accounts.

2. Regarding ground of appeal No. 2

In light of the records, the court below is just in holding that it had already been in excess of the obligation at the time of disposing of the real estate in this case to the defendant, etc., or at least was placed in excess of the obligation due to the act of disposal of the real estate in this case, and there is no violation of the rules of evidence or incomplete hearing as to whether it has exceeded the obligation of the subcontractor as alleged in the grounds of appeal

3. As to the third ground for appeal

In revocation of fraudulent act, the beneficiary is responsible to prove that he is in bad faith (Supreme Court Decision 90Da16276 delivered on February 12, 1991 and Supreme Court Decision 97Da6711 delivered on February 13, 1998).

The court below did not have any evidence to acknowledge that the Defendant, a beneficiary, acquired the instant real estate in good faith, while the Defendant was well aware of the circumstances in light of the circumstances stated in the judgment above, that the Defendant would prejudice other creditors due to the act of disposal of the instant real estate in Hanam ice. The above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no violation of the rules of evidence or incomplete hearing as to the Defendant’

4. As to the fourth ground for appeal

In the exercise of the right of revocation, the “date when the obligee becomes aware of the cause for revocation” means the date when the obligee becomes aware of the requirements for the right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that it would prejudice the obligee. In order to deem that the obligee was aware of the cause for revocation, the mere fact that the obligee was aware of the act of disposal of the property is insufficient, and it is necessary to find out the fact that the obligor was aware of the existence of the specific fraudulent act and that the obligor was aware of the intent of deception, and it cannot be presumed that the obligee was aware of the objective fact of the fraudulent act, on the ground that the obligee was aware of the objective fact of the fraudulent act (Supreme Court Decisions 8Da26475 delivered on September 12, 1989; 2004Da61280 delivered on July 4, 2006).

For reasons indicated in its reasoning, the court below rejected Defendant’s defense that the limitation period for exercising the right to revoke the fraudulent act of this case has expired is just in accordance with the legal principles as seen earlier. Furthermore, even if the records of this case are based on records, there is no evidence to find that the Plaintiff knew of the ground for revocation one year before the date of filing the lawsuit of this case, and there is no violation of the rules of evidence as to the starting point of the limitation period as

5. Ground of appeal No. 5

The lower court acknowledged that the Plaintiff’s claim for the settlement of accounts for the Heungnam Telecom was KRW 865,984,315, but ordered the Defendant to pay KRW 3,547,137,370 for the total value of each of the real estate listed in Table 3 List 1 of the lower judgment and KRW 57,972,960 for the value of each of the real estate listed in Table 701 listed in Table 4 of the List 3 List 7 of the same List.

However, the above judgment of the court below is hard to accept.

When a creditor exercises the right of revocation, he/she may not exercise the right to demand a distribution in excess of his/her own amount of claim, in principle, unless there are special circumstances, such as where it is apparent that another creditor will demand a distribution, or where the subject matter is indivisible (see Supreme Court Decisions 97Da10864, Sept. 9, 1997; 200Da66416, Sept. 4, 2001). In addition, in cases where a creditor orders a compensation for value not returned as a result of the revocation of a fraudulent act, which is not a return of original claim, the other party to the performance shall be the creditor (see Supreme Court Decision 2007Da84352, Apr. 24, 2008); in cases where another creditor orders a compensation for value not a return of original claim, the other creditor shall be the creditor (see Supreme Court Decision 2007Da84352, Apr. 24, 2008).

Therefore, in case where the order of compensation for the equivalent value as a restoration due to the revocation of a fraudulent act is ordered, the revocation creditor may directly claim for the payment of the equivalent value compensation to himself/herself, and under the current law where there is no provision on the method or procedure for distributing the above-mentioned equivalent value compensation, other creditors cannot demand the distribution of the above-mentioned equivalent value compensation. Thus, the creditor cannot ultimately seek the equivalent value compensation exceeding his/her claim amount.

On the other hand, even if a creditor has received a favorable judgment on the claim for the revocation of a fraudulent act and restitution against a certain beneficiary (including the person who acquired it), and the judgment became final and conclusive, as long as the creditor has not completed the recovery of the property or value based thereon, the creditor may separately file a claim for revocation of a fraudulent act and restitution against the other beneficiary based on his/her preserved claim, and in cases where a number of lawsuits are pending by filing a lawsuit against multiple beneficiaries for revocation of a fraudulent act and restitution of the value, the creditor shall render a judgment ordering revocation of a fraudulent act and restitution of the original state at the creditor's request, and even in cases where the beneficiary is obliged to compensate for the value, the beneficiary shall order the return of the total amount of the preserved claim

In addition, this legal doctrine also holds that, as in the instant case, as a result of the debtor’s disposal of several real estate at the same time to several beneficiaries, each such disposal act becomes a fraudulent act, and that the same applies to cases where the sum of the value of the property subject to the duty of restitution to be borne by each beneficiary exceeds the creditor’s secured claim amount by seeking revocation of fraudulent act and restitution by the beneficiary as a co-defendant.

According to the above legal principles, the court below ordered the defendant to compensate for the value of the property acquired by the defendant to the extent of the amount of the plaintiff's preserved claim (the creditor's property was the creditor's joint collateral) but the court below ordered compensation for the whole value of the property acquired by the defendant in excess of the amount of the plaintiff's preserved claim. The court below erred by misapprehending the legal principles on the scope of compensation for value, which affected the conclusion of the judgment.

6. Conclusion

Therefore, the part of the judgment of the court below on the claim for the value compensation against the defendant is reversed, and that part of the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Ji-hyung (Presiding Justice)