[2] In a lawsuit seeking revocation of a fraudulent act, the person who bears the burden of proving that the beneficiary was unaware of harm to the creditor at the time of the pertinent legal act (=beneficiary) and the method of determining whether the beneficiary was aware of harm to the creditor in such case

[3] In a case where the mortgage contract was revoked by fraudulent act, but the auction procedure had already been conducted and the registration of creation of a neighboring mortgage was revoked, the specific method of restitution depending on whether the beneficiary's dividend was received, and in a case where the creditor appeared on the date of distribution and raised an objection against the beneficiary's dividend portion, whether the lawsuit of demurrer against distribution may be brought together with the lawsuit of revocation of fraudulent act to reinstate (affirmative

[2] Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act, the beneficiary must prove that he/she was unaware of the beneficiary's failure to harm the creditor at the time of the pertinent legal act. In such cases, whether the beneficiary was aware of harm to the creditor should be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances, such as the relationship between the debtor and the beneficiary, the details of the act of disposal between the debtor

[3] In the event that a mortgage contract is revoked by fraudulent act, if another person acquires ownership and the registration of creation of a neighboring mortgage was revoked, it is impossible to return the original property, and thus, it is ordered to restore the original property by means of equivalent compensation. In this case, where a beneficiary receives a dividend upon the termination of the distribution, the beneficiary shall order the return of the dividend. Where a beneficiary receives the dividend upon the expiration of the distribution schedule, the beneficiary shall order the transfer of the dividend payment claim and the notification of the transfer of the claim and the transfer of the claim in case where the beneficiary was not actually paid the dividend due to the provisional disposition prohibiting the creditor from paying the dividend even though the distribution schedule became final and conclusive, if the creditor was present on the date of distribution and raised an objection

1. As to the revocation of a fraudulent act among the judgment below

(1) In the exercise of the obligee’s right of revocation, “the date when the obligee becomes aware of the cause for revocation” refers to the date when the obligee becomes aware of the requirement for the obligee’s right of revocation, namely, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that it would prejudice the obligee. In this case, in order for the obligee to be aware of the cause for revocation, it is insufficient to say that the obligor merely knew of the fact that the obligor conducted a disposal of the property, and further, the obligor was aware of the existence of a specific fraudulent act, and it is difficult to presume that the obligor was aware of the objective fact of the fraudulent act, and the burden of proof over the limitation period is limited to the party to the lawsuit seeking revocation (see Supreme Court Decision 2013Da79320, Mar. 27, 2014). In addition, where the obligee knowingly exercises the obligee’s right of revocation in order to transfer the claim to preserve the obligee’s right of revocation, the determination should be made on the date when the obligor became aware of the cause for revocation.

The court below held that the lawsuit of revocation of the fraudulent act in this case brought by the Plaintiff to preserve the above claim after the fraudulent act had been committed should be determined on the basis of the Plaintiff, the assignee of the above claim, and that the lawsuit in this case was lawful, since the Plaintiff brought a lawsuit within one year from the date on which the Plaintiff became aware of the cause for revocation. Furthermore, the court below determined that the lawsuit in this case was legitimate, even if it was judged based on the transferor of the above claim, it is insufficient to prove that the transferor was aware of the cause for revocation before the transferor transferred the above claim in sequence, and therefore, determined that the lawsuit in this case was brought before the expiration of the limitation period.

In light of the aforementioned legal principles, the lower court should have determined whether the transferor of the above loan claim was aware of the cause for cancellation prior to the transfer of the claim and, if known, determined whether the period of exclusion expires on the basis of the transferor. Nevertheless, the lower court erred by misapprehending the legal doctrine on the starting point of the exclusion period at the time of the transfer of the preserved claim, as seen earlier, prior to determining whether the transferor was aware of the cause for cancellation prior to the transfer of the claim.

However, in light of the record, the part of the lower court’s preliminary determination that deemed insufficient to prove that the transferor was aware of the cause of revocation prior to the assignment of claims is justifiable, and there was no error 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. Although the lower court’s reasoning stated earlier, the lower court’s conclusion that the exclusion period was not excessive is reasonable, and thus, does not affect the judgment.

(2) Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act, the beneficiary must prove that he/she was unaware of the beneficiary at the time of the pertinent legal act. In such a case, whether the beneficiary was aware of harm to the creditor should be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances, such as the relationship between the debtor and the beneficiary, the details of the act of disposal between the debtor and the beneficiary, and the background or motive leading to such act (see Supreme Court Decision 2011Da37001, Apr. 26, 2013)

The lower court rejected the Defendant’s bona fide defense on the ground that it was insufficient to prove that the Defendant, a beneficiary, was unaware of the creditor at the time of the conclusion of the aforementioned contract, after determining that the mortgage agreement concluded with the Nonparty, a joint guarantor of the instant loan claim constituted a fraudulent act.

Examining the record in accordance with the aforementioned legal principles, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the good faith of the beneficiary in a lawsuit seeking revocation of fraudulent act

2. As to the part of the lower judgment regarding the restitution to original state

(1) In the event that a mortgage contract is revoked by fraudulent act, if another person acquires ownership and the registration of creation of a neighboring mortgage was revoked, it is impossible to return the original property, and thus, it is ordered to restore the dividend by means of equivalent compensation. In such cases, where a beneficiary receives a dividend upon the termination of the distribution, the beneficiary shall order the return of the dividend. Where the distribution schedule became final and conclusive but the beneficiary was not actually paid the dividend due to the creditor’s provisional disposition prohibiting the payment of dividend, the beneficiary shall be ordered to transfer the dividend payment claim and notify the transfer of the claim and the transfer of the claim. If the creditor was present on the date of distribution and raised an objection against the part of the beneficiary’s distribution, the creditor may file a lawsuit of revocation of fraudulent act and file a lawsuit of demurrer against distribution by means of restitution (see Supreme Court Decision 2010Da90708, Feb. 10

(2) The lower court determined that the Defendant was obligated to pay the said money to the Plaintiff by restitution following the cancellation of the instant mortgage contract, on the ground that the Defendant’s registration of creation of a mortgage was cancelled and the Defendant was paid KRW 130,00,000 as a mortgagee, in the Busan District Court’s 2015TTWD 9225 Real Estate Auction.

(3) However, it is difficult to accept the above determination by the lower court.

According to the records, although the distribution schedule of the said voluntary auction case, which was made up for distributing the above money to the Defendant, was submitted as evidence of this case, the said distribution schedule alone cannot be found as to whether the Defendant actually received the said money as dividends. Therefore, the lower court should have determined the method of restoring the said money after examining whether the Defendant actually received the dividends. Nevertheless, the lower court, without examining the aforementioned circumstances properly, determined that the Defendant was obligated to immediately pay the said money to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the method of restoring the said money to the original state following

3. Conclusion

Therefore, the part of the judgment of the court below regarding restitution is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)