1. According to the reasoning of the judgment below, the court below held that the mortgage contract of this case between the defendant and the non-party should be revoked as a fraudulent act, and its restitution should be conducted by the defendant by transferring the dividend payment claim acquired in the auction procedure for real estate of this case to the non-party and notifying the debtor of the transfer of the claim. Under the premise that the scope of revocation of fraudulent act and restitution cannot, in principle, exceed the amount of the creditor's claim by exercising the creditor's right of revocation, the scope of revocation and restitution should not exceed 36,238,746 won, which is the sum of the claim for reimbursement against the non-party who is the preserved claim and the interest or delay damages claim against the non-party, and received only within the scope of the plaintiff's claim on the ground that the dividend payment claim acquired by the defendant is

2. However, we cannot accept the above measures of the court below for the following reasons.

The scope of revocation of a fraudulent act may seek revocation even beyond the claim amount of the revocation creditor where it is apparent that another creditor will demand a distribution or where special circumstances exist, such as where the subject matter is indivisible (see, e.g., Supreme Court Decisions 97Da10864, Sept. 9, 1997; 2007Da61618, Jan. 15, 2009).

However, according to the records and the facts established by the court below, with respect to the non-party, it can be known that the Gyeongbuk Credit Guarantee Foundation's 15,00,000 won and the new card company's 5,615,602 won with the claim of 5,615,602 won and the provisional attachment registration was completed with respect to the part of the real estate of this case, and other creditors' claims were also asserted. Unless there are special circumstances, such creditors' demand for distribution in the auction procedure of this case is obvious or actually demanded for distribution. Thus, the plaintiff can seek revocation of the mortgage contract of this case, which is a fraudulent act, even beyond his claim amount.

Nevertheless, without examining the aforementioned circumstances, the court below erred by misapprehending the legal principles on the scope of revocation of fraudulent act and restitution, and by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)