[2] The meaning of "the date when the creditor becomes aware of the cause of revocation" as the starting point of the exclusion period under Article 406 (2) of the Civil Code

[3] In order to recognize that an obligee was aware of the cause for revocation in the exercise of obligee's right of revocation, whether the obligor should also be aware of the existence of the intent of deception (affirmative), and whether the beneficiary or subsequent purchaser's bad faith should be known (negative)

[2] The "date when the creditor, which is the starting point of the exclusion period under Article 406 (2) of the Civil Code, becomes aware of the cause of revocation" means the date when the creditor becomes aware of the requirement of the creditor's right of revocation, i.e., the date when the creditor becomes aware of the fact that the debtor

[3] In order for the obligee to be aware of the cause for revocation in the exercise of the obligee's right of revocation, it is insufficient to say that the obligor merely knows the fact that the obligee conducted an act of disposal of the property, and it is also necessary to know the existence of a specific fraudulent act, and further, that the obligee had an intent to know about the existence of a specific fraudulent act, but it is not necessary that the obligee has to know

In full view of the selected evidence, the court below determined that on January 4, 1995, the Plaintiff’s claim for transfer registration of 150 million won against Nonparty 1 was cancelled on the ground that the Plaintiff’s fraudulent act was cancelled under the name of Nonparty 1 and Nonparty 2’s provisional registration under the name of Nonparty 1 and Nonparty 2’s claim for cancellation of ownership transfer registration under the name of Nonparty 1 and Nonparty 2’s claim for cancellation of the above provisional registration under the name of Nonparty 1 and Nonparty 2’s claim for cancellation of ownership transfer registration under the name of Nonparty 1 and Nonparty 2’s claim for cancellation of the above provisional registration under the name of Nonparty 1 and Nonparty 2, which became final and conclusive on June 1998. The court below rejected the Plaintiff’s claim for cancellation of ownership transfer registration under the name of Nonparty 1 and Nonparty 2’s provisional registration under the name of Nonparty 1 and Nonparty 2, which became final and conclusive on the ground that the above provisional registration was cancelled on the ground that the Plaintiff’s claim for cancellation of ownership transfer registration was unlawful.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

In order for a creditor to exercise the right to revoke a fraudulent act against a subsequent purchaser pursuant to Article 406(1) of the Civil Act, the creditor shall file a claim with a court, not an assertion of the method of attack, for the revocation of the fraudulent act between the debtor and the beneficiary, within the period prescribed in Article 406(2) of the Civil Act. Although the creditor has already filed a lawsuit against the beneficiary seeking the revocation of the fraudulent act and has been declared a judgment to revoke the legal act between the debtor and the beneficiary, the judgment cannot be effective against the subsequent purchaser, who is not the defendant of the lawsuit. Thus, in order for the creditor to seek restitution from the subsequent purchaser by exercising the right to revoke against the subsequent purchaser separately from the lawsuit, the creditor shall not file a claim for the revocation of the fraudulent act between the debtor and the beneficiary (see, e.g., Supreme Court Decisions 84Ma610, Nov. 24, 1984; 87Da1989, Feb. 23, 1988; 203Da19639, Oct. 19, 198, 190.

In addition, the "date when the creditor, which is the starting point of the exclusion period under Article 406 (2) of the Civil Code, becomes aware of the cause of revocation" means the date when the creditor becomes aware of the requirement of the creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware of the cause of revocation. In order to say that the creditor was aware of the fact that the debtor performed a disposal act of the property, it is insufficient to simply say that the debtor was aware of the fact that the debtor performed a disposal act of the property, and that the debtor was aware of the existence of a specific fraudulent act, and further, that the creditor was aware of the intent of deception against the debtor. However, the creditor is not required to know about the bad faith of the beneficiary or subsequent purchaser (see Supreme Court Decision

However, as seen earlier, the Plaintiff filed a lawsuit to revoke the fraudulent act against Nonparty 2 on or around June 1998, and the Plaintiff was aware that Nonparty 1 sold the instant building to Nonparty 2 with the knowledge that it would harm the Plaintiff at the latest. The instant lawsuit filed on March 25, 2002, which was one year after the lapse of the lawsuit, was filed after the lapse of the period for filing the lawsuit under Article 406(2) of the Civil Act, and thus, is unlawful.

Nevertheless, the court below rejected the defendant's defense against the exclusion period of a lawsuit seeking revocation of a fraudulent act by deeming that Article 406 (2) of the Civil Code does not apply in cases where the subsequent purchaser claims restitution to the original state after filing a lawsuit against the beneficiary for revocation of the fraudulent act, and such illegality has affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)