[2] The case where the compensation for the equivalent value can be ordered due to the restitution of the original state following the revocation of the fraudulent act

[3] In the event that the registration of establishment of a mortgage was cancelled due to repayment, etc. of a fraudulent act and the return of the value is ordered with the revocation of a fraudulent act, the scope of the return of the value thereof, and in the event that a lease contract was concluded before a fraudulent act and a lessee has preferential right to reimbursement of the lease deposit, whether the amount of the lease deposit with preferential right to reimbursement should be deducted from the value of the real estate to be refunded by the beneficiary (affirmative)

In this context, it is not sufficient to know the fact that there was a legal act of the debtor simply, and that the legal act is an act unfavorable to the creditor. In other words, it should be known that the act is not sufficient to secure the joint security of the claim or that the joint security already in short condition is insufficient to fully satisfy the claim.

[2] In a case where a legal act on real estate constitutes a fraudulent act, a fraudulent act shall be revoked and ordered to reinstate the property of the debtor. A beneficiary shall, in principle, return the property received from the debtor. However, when it is impossible or difficult to return the property due to revocation of a fraudulent act, the value thereof must be returned. In a case where an order to recover the property itself is issued due to revocation of a fraudulent act, even the portion which was not initially owned by the general creditors as joint collateral, and it would result in a violation of fairness, the value may be ordered to be returned to the extent of the remaining amount obtained by deducting the value of the portion which was not jointly secured from the value of the

[3] In a case where the registration of establishment of a mortgage was cancelled due to repayment, etc. of a fraudulent act with respect to a real estate on which a mortgage is established, and orders the return of the value thereof along with the revocation of a fraudulent act, the amount of the lease deposit shall be returned to the extent that the amount of the secured claim of the mortgage is deducted from the value of the real estate. However, in a case where a lessee has preferential right to payment other than the mortgage as mentioned above, the time when a lease agreement was concluded may vary. If a lease agreement was concluded prior to a fraudulent act and a lessee has preferential right to reimbursement of the lease deposit, the amount of the lease deposit shall be deducted from the value of the real estate that the beneficiary is entitled to preferential right to reimbursement from the value of the real estate returned to the general creditor. However, if the debtor leases the real estate after a fraudulent act, there is no reason to deduct the amount of the lease deposit from the value of the real estate. In this case

1. misunderstanding of legal principles as to exclusion period in a lawsuit seeking revocation of fraudulent act

A. A creditor’s revocation lawsuit shall be brought within one year from the date on which the creditor becomes aware of the cause for revocation (Article 406(2) of the Civil Act). This also applies where a taxpayer makes a fraudulent act to avoid the collection of national taxes (Article 30 of the National Tax Collection Act).

In this context, the fact that there was a juristic act of an obligor is insufficient to know the fact that there was a juristic act of an obligor, and that the juristic act is an act unfavorable to the obligee, that is, it should be known that the act does not make it impossible to fully satisfy the claim as a result of a lack of joint security of the claim or a lack of joint security already in the state of shortage (see Supreme Court Decision 9Da53704 delivered on February 25, 200, etc.).

B. The lower court did not accept the Defendant’s assertion that the period for filing a lawsuit as set forth in the creditor revocation suit has expired for the following reasons.

(1) On June 30, 2014, the Plaintiff concluded a sales contract on March 8, 2013 (hereinafter “instant sales contract”) with respect to the real estate listed in the separate sheet of the lower court (hereinafter “instant real estate”) at the time when the disposition of withholding the disposition of withholding the liquidation pursuant to Article 126 of the Regulations on the Management of National Taxes was rendered on June 30, 2014, and there is insufficient evidence to acknowledge otherwise.

(2) According to the Plaintiff’s provision on the collection of national taxes, it is necessary to examine the property status of the delinquent taxpayer and whether the delinquent taxpayer’s act of disposing of property was fraudulent while deliberating on the postponement of reorganization. However, according to the result of the order to submit taxation information, it is difficult to conduct any investigation as to whether the instant sales contract constitutes a fraudulent act at the time

(3) The instant lawsuit was filed on September 16, 2015 before the lapse of one year from September 23, 2014, when the disposition for withholding reorganization was revoked, and the period for filing a lawsuit under Article 406(2) of the Civil Act has not elapsed.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the period of filing a lawsuit

2. misunderstanding of legal principles as to the scope of return of value

A. In a case where a juristic act on real estate constitutes a fraudulent act, a fraudulent act shall be revoked to preserve the debtor’s responsible property, and the beneficiary shall be ordered to reinstate the property. In principle, the beneficiary shall return the property received from the debtor. However, if it is impossible or difficult to return the property due to revocation of a fraudulent act, the value of the property must be returned. In a case where the order to recover even the portion which was not initially owned by the general creditors as joint collateral is issued if the order to reinstate the real estate itself is issued due to revocation of a fraudulent act, and it would result in a violation of fairness, the order to return the value may be ordered to the extent of the remaining amount obtained by deducting the value of the portion which was not jointly secured from the value of the property (see Supreme Court Decisions 97Da6711, Feb. 13, 1998; 2007Da2819, Feb. 25, 2010, etc.).

In the event that the registration of creation of a mortgage is cancelled due to repayment, etc. of a fraudulent act, etc. of a real estate on which a mortgage is established and orders the return of the value thereof along with the revocation of a fraudulent act, the amount of the lease deposit shall be returned to the extent that the amount of the secured claim of the mortgage is deducted from the value of the real estate. However, in cases where a lessee has preferential right to payment other than the mortgage mentioned above, the time when the lease contract was concluded may vary. If a lease contract was concluded prior to a fraudulent act and a lessee has preferential right to payment of the lease deposit, the amount of the lease deposit shall be deducted from the value of the real estate to be returned by the beneficiary, on the ground that the portion equivalent to the lease deposit cannot be deemed to have been provided by the common obligee’s joint security. However, if the debtor leases the real estate after a fraudulent act on the real estate, there is no reason to deduct the amount of

B. For the following reasons, the lower court determined that the instant sales contract, which is a fraudulent act, should be revoked within the scope of KRW 92 million, and that the Defendant is obligated to pay the Plaintiff damages for delay from the date following the final judgment on the said contract and the subsequent restitution to its original state.

(1) On February 7, 2013, regarding the instant real estate, the right to collateral security was established in the name of the Gwangjin-dong Saemaul Savings Depository, the maximum debt amount of KRW 159,99 million, but on April 30, 2013, Nonparty 1 repaid the secured debt amount of KRW 123,000,000,000 after the instant sales contract, which was subsequent to the instant sales contract, and cancelled the registration of the establishment of the neighboring mortgage. The amount of the joint collateral security is KRW 215,00,000,000,000,000,000,000 won, which is the amount calculated by subtracting the secured debt amount of KRW 12,3,000 from the market value of the instant real estate.

(2) On March 9, 2013, Nonparty 1 leased the lease period of the instant real estate to Nonparty 2 at KRW 2,000,000,000 for the lease deposit and KRW 16,000 for the lease deposit, but the said lease contract was concluded on the day following the instant sales contract constituting a fraudulent act, and thus, the said lease contract cannot be deducted from the value of the joint security.

C. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the method of restitution following the revocation of fraudulent act and the scope of return of value, contrary to what is alleged in the grounds

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)