채무자가 채권자와 통모하여 다른 채권자를 해할 의사를 가지고 변제를 하였는지 여부는 주장하는 사람이 입증하는 것임[국패]
Seoul High Court 2010Na112808 (Seoul High Court 2011.30)
Whether a debtor in collusion with a creditor and has an intent to harm other creditors or not has performed his/her obligations is proved by the claimant.
Inasmuch as there is no evidence to deem that at the time of performance, a mother and the defendant conspired to harm other creditors, or that there was an intent to harm other creditors, such performance cannot be deemed as constituting a fraudulent act.
2011Da61448 Revocation of Fraudulent Act
Korea
KimA
Seoul High Court Decision 2010Na112808 Decided June 30, 2011
February 9, 2012
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
We examine the grounds of appeal.
Since an obligee’s right to seek reimbursement of an obligation is natural, even if the obligor’s joint collateral of another obligee becomes a result of a decrease in the amount of obligation due to the obligor’s repayment according to the principal place of obligation to a specific obligee, such reimbursement does not, in principle, constitute a fraudulent act unless the obligor has given notice to some creditors, and in collusion with some creditors, and whether the obligor has made reimbursement with an intent to prejudice other creditors is obliged to prove that it constitutes a fraudulent act (see, e.g., Supreme Court Decision 2003Da60822, May 28, 2004). The lower court rejected the lower court’s determination to the effect that, in light of the aforementioned legal principles and records, there was no error of law by misapprehending the legal principles as to the obligor’s repayment of an obligation against the Plaintiff, or by misapprehending the legal principles as to KRW 208,015,500,000,000 and KRW 170,000,00,000,000.