1. As to the second ground for appeal

The lower court determined that, in full view of the circumstances as indicated in its reasoning, it could be confirmed that OO consumeds most of KRW 700 million in total the down payment and intermediate payment of the instant sales contract until the time of the instant property division agreement, and determined that, if OOO divided the Defendant into the remainder claim of the instant real estate and the OO apartment rental deposit claim of KRW 1,430,000,000, in accordance with the instant property division agreement, OO entered into a state of excess of its obligation with the instant property division agreement.

Examining the record in accordance with the relevant legal doctrine, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on the burden of proof of excess of the obligation in

2. Regarding ground of appeal No. 1

(1) Division of property following divorce is a system that has the economic difficulty to support the other party, which is the liquidation of the joint property achieved through mutual cooperation between the other party during marriage. Although the debtor who has already been in excess of his/her debt, while divorced and transferred a certain property to his/her spouse, thereby reducing joint security against the general creditor, barring any special circumstance, such division of property is not subject to revocation by a creditor as a fraudulent act, unless it is deemed that such division of property is excessive beyond a considerable degree under the purport of Article 839-2(2) of the Civil Act, but it cannot be deemed as a legitimate division of property beyond a considerable degree. However, the creditor bears the burden of proving that there are special circumstances that it is excessive division of property beyond a considerable degree (see Supreme Court Decision 2006Da3258, Sept. 14, 2006).

On the other hand, property subject to division in the division of property following the divorce shall be determined on the basis of the date on which the divorce comes into existence (see, e.g., Supreme Court Decision 2002Meu2230, Mar. 14, 2003). Moreover, even in cases where an agreement is planned to divorce and a prior agreement on division of property has been reached, such agreement does not change on the relevant base date (see, e.g., Supreme Court Decision 2005Da74900, Sept. 14, 2006).

(2) The lower court determined that: (a) it is reasonable to view that the positive property of MaOO, which is the object of division of property at the time of the instant agreement on division of property, is KRW 1,521,891,853; and (b) the positive property of MaO is KRW 401,00,033; (c) the net property subject to division of property is KRW 1,120,891,820 ( KRW 1,521,891,853 - 401,000,033); and (d) the reasonable division ratio is 50%, Defendant 50%, and 50%, since it is reasonable to view that the Defendant’s property subject to division from MaO, as the property subject to division of property at the time of the instant agreement on division of property was KRW 560,445,910 ( KRW 1,120,891,820) and KRW 508,0405,50100.

(3) However, the above determination by the court below cannot be accepted for the following reasons.

According to the records, MaOO and the defendant made the instant agreement on the division of property on August 20, 207 and completed the report of divorce on September 16, 2008. In such a case, according to the legal principles as seen earlier, the court below should have determined the amount of the property of both MaOO and the defendant, which is subject to the division of property on September 16, 2008, the date of the report of divorce, and should have determined the appropriate amount of the division of property in full view of all the circumstances up to the divorce after the two parties’ marriage, and ordered revocation of the division of property only if there are parts exceeding this. Nevertheless, the court below determined the amount of the property of MaO and the defendant, which is subject to the division of property on August 20, 207, on which the date of the instant agreement on the division of property was affixed, and determined the amount of the property that the defendant would receive based on this determination.

In addition, according to the records, the defendant argued in the court below that "the defendant agreed to receive 1,430,000,000 won as the division of property through the division of property, but actually received only 837,98,566 won, and this cannot be deemed as excessive division of property."

In such a case, the lower court recognized that the division of property pursuant to the instant division of property exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act and ordered revocation as a fraudulent act with respect to the part of the agreement to be paid in excess of a reasonable amount pursuant to the division of property, and determined the scope of restitution following revocation, the lower court should have ordered compensation for the amount equivalent to that of the portion actually paid by the Defendant, which exceeds a reasonable amount of division of property pursuant to the instant division of property. Nevertheless, the lower court did not completely examine and determine whether the amount actually paid was actually paid by the Defendant under the instant division of property. Nevertheless, the lower court ordered compensation for damages for the difference between the legitimate amount of division of property and the amount of property by fraudulent act revocation. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the object of revocation of fraudulent act and the scope of restitution following revocation or fraudulent act, etc.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench