[사해행위취소][공1997.12.1.(47),3642]
[1] The case where a claim which was not yet established at the time of the fraudulent act may exceptionally become a preserved claim
[2] Where a joint and several surety who jointly and severally guaranteed a debtor's liability for indemnity against the guarantor donates the real estate owned by him to a third party, the case holding that in light of the financial status of the principal debtor at the time of donation, it is highly probable that the claim for indemnity, which is the preserved claim
[1] A claim protected by the obligee’s right of revocation needs to be, in principle, arising prior to the commission of an act that can be deemed a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future. In the near future, where the probability is realized and a claim has been established, the claim may also become a preserved claim.
[2] In a case where a joint and several surety provided a loan from a bank under the guarantee of a guarantor, and a joint and several surety provided a third party with an immovable property owned by the obligor after the joint and several surety, the case holding that in light of the financial condition of the obligor at the time of the donation contract, in light of the financial condition of the obligor at the time of the donation contract, such as the fact that, at the time of the donation contract, the obligor was unable to pay the relevant loan by the initial due date and extended the due date, and there was a lot of loans that the principal was not repaid, and that there was considerable damage due to the
[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code
[1] [2] Supreme Court Decision 97Da8687 delivered on October 10, 1997 (Gong1997Ha, 3420) / [1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong196Sang, 173) Supreme Court Decision 95Da14503 delivered on February 9, 1996 (Gong196Sang, 902 delivered on May 23, 1997)
Korea Technology Finance Corporation
Defendant (Law Firm Written, Attorney Cho Jae-in, Counsel for the defendant-appellant)
Busan District Court Decision 97Na1423 delivered on July 11, 1997
The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.
We examine the grounds of appeal.
Although it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the act that can be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations forming the basis of the establishment of the claim in the near future, and that the claim should be established in the near future because the possibility is realized in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 95Da27905, Nov. 28, 1995; 95Da14503, Feb. 9, 1996; 96Da38612, May 23, 1997). The court below held that the court below held that there is no evidence to acknowledge that there was a high probability of the occurrence of the obligee's right of revocation in the near future at the time of the donation contract by the non-party, the debtor, or that there was a high probability of the occurrence of the obligee's right of revocation.
However, in full view of the relevant evidence, the plaintiff entered into a credit guarantee contract with the non-party corporation Busan Bank on February 22, 1994 (hereinafter only the non-party company) on the non-party company's obligations for loans. The non-party, on the same day, donated the real estate to the defendant who is his father on April 4, 1995. The non-party company was ordered to suspend transactions on May 9, 1995. At the time of the above donation contract, the non-party company did not pay the principal by February 22, 1995, and did not pay the agreed amount to the non-party company for one year, and the non-party company violated the above legal principles as to the non-party company's obligations for reimbursement with the non-party corporation's total amount of loans of KRW 100,000,000 and KRW 278,6309,000, and there was no possibility that the non-party company did not pay damages to the non-party company's total amount of loans of KRW 98198.
Therefore, without determining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Seo Sung-sung (Presiding Justice)