[2] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act

[3] Method of determining whether a beneficiary acted in good faith in a lawsuit seeking revocation of a fraudulent act

1. Regarding ground of appeal No. 1

In the exercise of the right of revocation, the "date when the creditor becomes aware of the cause for revocation" means the date when the creditor becomes aware of the requirements for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware of the fact that the creditor would prejudice the creditor. Thus, it is insufficient simply by the fact that the debtor performed a disposal act of the property, and it is necessary to make it impossible to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security in the situation where the legal act was prejudicial to the creditor, and to inform the debtor of the fact that the debtor had an intention to harm the creditor. Further, it cannot be presumed that the creditor was aware of the objective fact of the fraudulent act, and the burden of proof as to the lapse of the limitation period is against the party to the lawsuit of revocation (see, e.g., Supreme Court Decisions 2004Da61280, Jul. 4, 2006; 2009Da47852, Oct. 29, 29, 2009).

In the same purport, the court below is just in holding that the lawsuit of this case was filed before the expiration of the exclusion period on the ground that it is difficult to view that the plaintiff could not fully satisfy the plaintiff's claim due to the pre-sale and provisional registration before July 30, 2009, which was one year prior to the time of filing the lawsuit of this case, and that the non-party 1 was aware of the fact that he had an intention to harm. In so doing, the court below did not err by misapprehending the legal principles as to the starting point of the exclusion period, as

2. Regarding ground of appeal No. 2

In principle, a claim that can be protected by the obligee’s right of revocation needs to be created prior to the commission of an act that can be viewed as 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 by the near future legal relationship. In the event a claim has been created due to the de facto realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2001Da81870, Mar. 29, 2002).

According to the reasoning of the judgment below, the court below determined that the claim for damages under the agreement of this case, which is a preserved claim, was not yet occurred on April 2, 2009, which was the date of entering into the contract of this case, based on its adopted evidence, but the legal relationship, which was the basis of the establishment of the claim, has already occurred by entering into the agreement of this case with the plaintiff, and it was highly probable that the non-party 1 would incur damage claim against the non-party 1 by paying the above loan obligation from April 21, 2009 to the nearest future by the non-party 2's failure to repay the loan obligation after March 2, 2009. In fact, it was highly probable, and therefore, the plaintiff's claim for damages under the agreement of this case against the non-party 1 can be the preserved claim of the creditor's right of revocation.

In light of the aforementioned relevant legal principles and records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to preserved claims by obligee as alleged in the grounds of appeal.

3. As to grounds of appeal Nos. 3 and 4

Examining the reasoning of the judgment below in light of the records, the court below is just in finding facts as stated in its judgment and finding that the non-party 1, who was in excess of the debt, concluded a promise to sell and purchase this case with the defendant and completed the transfer of ownership registration, constitutes a fraudulent act against the plaintiff, who is the creditor, unless there are special circumstances. There is no error in the misapprehension of legal principles as to the non-party 1's insolvency and intention to understand facts, as otherwise alleged in the grounds of appeal.

4. As to the fifth ground for appeal

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is responsible for proving his/her good faith in order to be exempted from his/her responsibility. In this case, whether the beneficiary is bona fide or not shall be determined reasonably in light of the logical and empirical rules, comprehensively taking into account various circumstances, such as the relationship with the debtor and the beneficiary, the details and the background or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to suspect that the terms and conditions of the act of disposal have been normal and there are no objective data supporting the act of disposal, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decisions 2007Da74621, Jul. 10, 2008; 2008Da3845

According to the reasoning of the lower judgment, the lower court rejected the Defendant’s bona fide defense, which is the beneficiary, on the ground that there is insufficient evidence. Examining the relevant evidence in light of the record, such determination by the lower court is justifiable in accordance with the aforementioned legal doctrine, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on

5. Conclusion

The appeal is dismissed, 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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)