[배당이의등][미간행]
[1] Whether a fraudulent act constitutes a case where an obligor formed a loan agreement for consumption with an obligee to repay an existing obligation and prepared a notarial deed stating the purport of accepting compulsory execution (negative in principle)
[2] In a case where Gap entered into a loan for consumption with Eul and received a distribution in the auction procedure for the real estate owned by Eul after preparing a notarial deed stating the purport of Gap's acceptance of compulsory execution, the case holding that the judgment below which concluded that the loan for consumption constituted a fraudulent act without examining whether Eul has an actual claim against Eul
[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code
Korea Credit Guarantee Fund (Law Firm Self-Training, Attorneys Jeong Byung-chul et al., Counsel for the defendant-appellant)
Defendant (Attorney Kim Jin-soo, Counsel for defendant-appellant)
Seoul High Court Decision 2010Na45359 decided November 10, 2010
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. The obligee’s right to seek repayment of an obligation is a natural exercise of his/her right, and it does not interfere with another obligee’s existence, and the obligor also cannot refuse to perform his/her obligation on the ground that there are other obligees. Thus, in an auction procedure for the obligor’s property, if the obligor concludes a loan agreement for consumption and prepares and prepares a notarial deed stating the purport of accepting compulsory execution for repayment of the obligee’s existing obligation at the obligee’s request, barring special circumstances where such an act does not differ from the actual transfer of the obligee’s responsible property to the specific obligee, it cannot be deemed as a fraudulent act detrimental to other obligees.
2. The court below, citing the reasoning of the judgment of the court of first instance, acknowledged the fact that the defendant entered into the loan agreement of this case with the non-party on February 18, 2009 and completed the notarial deed related thereto. The court below determined that the contract of this case constitutes a fraudulent act with the defendant again after the expiration of 13 days from the date on which the non-party entered into the loan contract of this case with the non-party and completed the notarial deed of this case, and that the distribution schedule was made in accordance with the order of priority and the amount of claims distributed to the plaintiff and the non-party, who is the creditor of first and second priority among the amount to be actually distributed on September 4, 2009 in the auction procedure for the real estate of this case. The court below held that the contract of this case constitutes a creditor's interest, including the plaintiff's monetary claim, even if the defendant actually damaged the non-party's monetary claim.
However, it is difficult to accept the judgment of the court below for the following reasons.
From October 23, 2004 to March 31, 2008, the defendant asserted that the non-party actually has a claim against the non-party as a result of lending money to the non-party company under the non-party's guarantee. If the defendant is the actual creditor, he can exercise his right as a natural matter and demand dividends in order to receive equal dividends in the auction procedure. In light of the above legal principles, the defendant prepared a notarial deed stating that the non-party entered into the loan agreement of this case with the non-party in order to receive his existing claim and agreed to enforce the compulsory execution, and thereby, the non-party's participation in the non-party's other creditors, including the plaintiff, received dividends in the auction procedure for the real estate of this case, so it cannot be said that the non-party actually has the right of preferential repayment to the defendant. If the defendant's claim is excluded from the distribution of dividends, it would result in allowing the plaintiff's right of preferential reimbursement
Therefore, the court below should decide whether the loan contract of this case constitutes a fraudulent act after examining whether the defendant has a real claim against the non-party. Nevertheless, without examining this point, the court below concluded that the loan contract of this case constitutes a fraudulent act even if the defendant has a real monetary claim against the non-party. The court below erred by misapprehending the legal principles as to the establishment of a fraudulent act, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.
3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench
Justices Ahn Dai-hee (Presiding Justice)