1. The judgment of the court below

The Plaintiff asserted that the instant mortgage contract constitutes a fraudulent act between Nitman Co., Ltd. (hereinafter “Nitman”) and the Defendant constitutes a malicious beneficiary, and the Defendant, by exercising the right of revocation against the Defendant, sought revision of the distribution schedule prepared on November 30, 2016 (hereinafter “instant distribution schedule”) by the said court with respect to the instant case of auction of real estate rent as Busan District Court’s Dong Branch Branch Branch, Busan District Court’s 2016ta795, 1019 (Dual).

In regard to this, the lower court cited the judgment of the first instance court, thereby citing the first instance court, filed a lawsuit seeking revocation of a fraudulent act within one year from the date when the creditor becomes aware of the grounds for revocation, and the “date when the creditor becomes aware of the grounds for revocation” refers to the date when the creditor becomes aware of the requirements for revocation right, that is, the date when the creditor becomes aware of the fraudulent act while being aware of the fact that the debtor would prejudice the creditor. On December 6, 2016, the Plaintiff filed a lawsuit against the Defendant in the first instance court against the Defendant for revocation of the mortgage contract of this case and sought restitution without filing a claim for revocation by asserting that the mortgage contract of this case constitutes a fraudulent act, but at the first instance court on May 14, 2018, filed a lawsuit seeking revocation of the mortgage contract of this case by exercising the right of revocation and for filing a claim for correction of the distribution schedule of this case based thereon. Accordingly, the instant lawsuit was unlawful since the period of exclusion from December 16, 2016 to the date when the Plaintiff became aware of the grounds for revocation.

2. Judgment of the Supreme Court

We cannot accept the judgment of the court below for the following reasons.

A. According to the records, while filing the instant lawsuit on December 6, 2016, the Plaintiff stated only the claim for correction of the instant distribution schedule as the purport of the complaint. However, in the grounds for the instant claim, the Plaintiff and the Defendant stated that the distribution schedule should be revised because the instant mortgage contract that the Defendant concluded with the UNNNNN constitutes a fraudulent act. Thereafter, the Plaintiff and the Defendant asserted that the instant mortgage contract constitutes a fraudulent act in the course of pleading as its main issue is whether it constitutes a fraudulent act. On December 20, 2017, the first instance court, among them, concluded the pleadings on December 20, 2017, and submitted the documents to the Plaintiff on January 29, 2018, stating that “The revocation of a fraudulent act is the exercise of the judicial power, and if revoked, it would be desired to submit the documents to the Plaintiff on the purport of the claim for revocation of the fraudulent act.” After submitting the application for modification of the purport of the claim on May 14, 2018.

B. In full view of the above facts, it is reasonable to deem that the Plaintiff stated only the claim for correction of the distribution schedule in the purport of the instant complaint does not intend to limit the subject matter of lawsuit to the claim for restitution in a fraudulent act revocation lawsuit, but omitted the part of the claim for revocation of the fraudulent act by mistake. The Plaintiff’s above alteration can be deemed as a supplement or correction of the purport of the claim, and it cannot be deemed as a new lawsuit.

C. Nevertheless, the lower court upheld the first instance judgment that determined that the instant lawsuit was unlawful and dismissed by deeming that the Plaintiff filed a lawsuit seeking revocation of a fraudulent act by submitting an application for amendment of the purport of the claim on May 14, 2018. In so determining, the lower court erred by misapprehending the legal doctrine on the amendment of the purport or purport of the complaint, the filing of a new lawsuit, and the right to revoke a fraudulent act, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and since this case is sufficient for the Supreme Court to directly judge, the judgment of the court of first instance shall be revoked, and the case shall be remanded to the first instance court for a new trial and determination pursuant to the main sentence of Article 418 of the Civil Procedure Act. It is so decided as per Disposition by the assent

Justices Lee Ki-taik (Presiding Justice)