[배당이의][미간행]
Requirements for recognizing that a beneficiary was bona fide at the time of a fraudulent act
Article 406(1) of the Civil Act
Supreme Court Decision 2006Da5710 Decided April 14, 2006 (Gong2006Sang, 807) Supreme Court Decision 2004Da61280 Decided July 4, 2006 (Gong2006Ha, 1494)
(Attorney Hwang-soo, Counsel for the plaintiff-appellant)
Promotional Mutual Savings Banks (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2008Na59683 decided January 9, 2009
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
In recognizing that a beneficiary was bona fide at the time of a fraudulent act, objective and acceptable evidence, etc. should be supported, and it should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act solely based on the debtor’s unilateral statement or a statement that is merely a third party’s abstract statement (see, e.g., Supreme Court Decisions 2006Da5710, Apr. 14, 2006; 2004Da61280, Jul. 4, 2006).
The lower court rejected the Plaintiff’s claim on November 1, 2006, based on the following: (a) as to the Plaintiff’s ground of claim that the mortgage contract concluded between the Nonparty and the Defendant regarding the instant real estate constitutes a fraudulent act in relation to the Plaintiff, who is another creditor of the Nonparty; (b) the Defendant was not in a personal-friendly relationship with the Nonparty as a financial institution; (c) there were objective circumstances that the Defendant would have to take measures to preserve his claim; and (d) upon the Defendant’s request, the Nonparty provided the instant real estate as security; and (c) there was no provisional seizure by the Nonparty’s general creditors at the time of the establishment of the mortgage; and (d) the
However, the circumstances of the court below are not directly related to the defendant's good faith or are insufficient to recognize the defendant's good faith, and there is no objective and objective evidence that can be recognized as the defendant's good faith at the time of establishing the right to collateral security.
Nevertheless, the court below accepted the defendant's argument that it was bona fide at the time of establishing the right to collateral security and rejected the plaintiff's claim. In so doing, the court below erred by misapprehending the legal principles on the requirements to recognize the beneficiary's good faith or exceeding the bounds of the principle
Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Dai-hee (Presiding Justice)