[2] In a case where a creditor with respect to the same fraudulent act has been rendered a favorable judgment and the judgment has become final and conclusive, and the implementation has been completed accordingly, whether the benefit in the protection of rights is lost to the extent that the creditor’s revocation and the claim for restitution overlap (affirmative)

[3] The standard for determining whether a joint and several guarantor had an intention to harm the property at the time of the disposal of the real estate

1. Regarding ground of appeal No. 1

A lawsuit for revocation by a creditor shall be brought within one year from the date when the creditor becomes aware of the cause for revocation and five years from the date when the juristic act occurred. Since the period for exercising the above right of revocation is the period for filing a lawsuit, the court shall ex officio investigate whether the said period is observed and dismiss the lawsuit for revocation by a creditor which has been brought after the expiration of such period as illegal. Thus, where there is doubt as to whether such period has been observed, the court may ex officio conduct an examination of evidence to the extent necessary, but where there is no reason to suspect that the period has lapsed when examining all the litigation materials presented at the court, the court does not have an obligation to examine additional evidence to confirm compliance with the period (see Supreme Court Decision 2004Da71201, Apr. 28, 2005, etc.).

In the records of this case, there is no evidence to suspect that the plaintiff had been aware of each fraudulent act of this case for more than one year prior to the date of the filing of the lawsuit of this case. Thus, the court below did not ex officio investigate the evidence to determine whether the period of one year under Article 406(2) of the Civil Act has lapsed, and the judgment below did not err in the misapprehension of legal principles as to the ex officio investigation as otherwise alleged in the grounds of appeal.

In addition, according to the reasoning of the judgment below, the court below acknowledged the fact that the deceased non-party entered into each of the instant gift contracts with Defendant 1 on March 7, 2005 and June 8, 2005, and each of the instant contract with Defendant 2 on March 4, 2005, and on the premise that the date of entering into the instant donation contract between Defendant 1 and the deceased non-party was February 12, 2004, the Plaintiff filed the instant lawsuit on February 26, 2010, which was filed on which the five-year period of filing the lawsuit had lapsed, and thus illegal. In so doing, the court below did not clearly determine the Defendants’ objection to the instant safety defense that was filed on February 26, 2010. In so determining, the court below did not err in the misapprehension of judgment as to the period of filing the lawsuit, contrary to what is alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

In a case where a creditor claims the cancellation and restitution of the same fraudulent act and the judgment becomes final and conclusive by winning a favorable judgment with respect to the same fraudulent act, and where the restoration of property or value is completed accordingly, the creditor’s claim for cancellation and restitution of the original status will no longer benefit in the protection of rights to the extent that it overlaps (see Supreme Court Decision 2003Da19558, Jul. 11, 2003).

According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, Seoul Guarantee Insurance Co., Ltd., which filed a lawsuit for revocation of the creditor's right of indemnity against the deceased non-party as the preserved claim, and obtained judgment in favor of the deceased non-party and the defendant 1 on Nov. 4, 2004. The above donation contract is obvious that it is not a fraudulent act identical to the above contract between the deceased non-party and the defendant 1 seeking revocation in this case. Thus, the court below did not urge the defendants to assert and prove the contents of the above favorable judgment and whether the defendant 1's duty of restoration should be fulfilled, as alleged in the grounds of appeal. Thus, the court below did not err in the misapprehension of the duty of explanation, etc. as otherwise alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

3. As to the third ground for appeal

Whether a joint and several sureties had an intent to know at the time of the disposal of real estate shall be determined by the fact that the joint and several sureties knew that the joint and several sureties would incur a shortage in securing the obligation for joint and several sureties to the creditor. Although the joint and several sureties should have been aware that the property status of the principal debtor would cause a shortage in securing the obligation, it shall not be recognized (see Supreme Court Decision 97Da54420, Apr. 14, 1998). In addition, the phrase “when a judgment on important matters that may have an effect on the judgment is omitted” refers to an attack and defense method submitted by the parties which have an effect on the judgment, and as long as the judgment exists, it shall not be deemed omission of the judgment unless the grounds for the judgment are stated in the judgment or the grounds for rejecting the allegations by the parties are individually explained (see Supreme Court Decision 9Da62838, Jan. 25, 2002).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the Plaintiff’s joint and several liability claims against the deceased Nonparty was already established prior to the conclusion of each gift contract of this case and each promise of this case between the deceased Nonparty and Defendant 1 and Defendant 2, and thus, the Plaintiff’s act of disposal of each of the instant real estate of this case constitutes a fraudulent act detrimental to the general creditors including the Plaintiff.

The judgment of the court below is just in accordance with the above legal principles. Contrary to the allegations in the grounds of appeal, there were no errors in the conclusion date of each gift contract between the deceased non-party and Defendant 1, the overdue loan debt of the deceased non-party, the establishment of the plaintiff's joint and several liability claim against the deceased non-party, the active property of the deceased non-party, and the intention of the deceased non-party to injure himself, and there were no errors

4. Conclusion

Therefore, all appeals are 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 Park Poe-young (Presiding Justice)