[구상금및사해행위취소][공2017상,952]
[1] In a case where an insolvent debtor transfers his/her own responsible property to a beneficiary through a litigation procedure and then a judgment against him/her is finalized by means of confession, etc. in a lawsuit filed by the beneficiary, or a decision of recommending reconciliation, etc., and accordingly, the registration of ownership transfer, etc. is completed for the beneficiary’s future, whether the agreement between the debtor and the beneficiary becomes a fraudulent act (affirmative)
[2] In a case where the registration of transfer of ownership completed through a final and conclusive judgment, etc. in a litigation procedure between the debtor and the beneficiary is cancelled due to the cancellation of fraudulent act, whether it is against or contradictory to the validity of the final and conclusive judgment, etc
[1] If an insolvent debtor transfers his/her own responsible property to a beneficiary through legal proceedings and then becomes final and conclusive by a judgment against him/her by means of confession, etc. in a lawsuit filed by the beneficiary, or by a decision of recommending reconciliation, etc., and accordingly, the registration of transfer of ownership in the beneficiary’s future, a transfer agreement between the debtor and the beneficiary, which is the substantial cause of such series of acts, may constitute a fraudulent act detrimental to the interests of other general creditors.
[2] In a case where a creditor is subject to a judgment of revocation of a fraudulent act that orders the beneficiary or subsequent purchaser to recover the property held by the beneficiary or subsequent purchaser with the revocation of a fraudulent act, the beneficiary or subsequent purchaser is merely liable to reinstate the creditor due to the revocation of a fraudulent act, and the legal relationship between the creditor and the debtor is not formed due to the revocation of a fraudulent act. Therefore, even if the registration of transfer of ownership completed through a final and conclusive judgment, etc. in the litigation procedure between the debtor and the beneficiary is revoked by the revocation of a fraudulent act, it cannot be said
[1] Articles 406(1) and 407 of the Civil Act / [2] Articles 406(1) and 407 of the Civil Act
Korea Credit Guarantee Fund (Law Firm Sejong, Attorneys Ro-won et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm Geumyang, Attorneys Kim Jong-sung et al., Counsel for defendant-appellant)
Gwangju High Court ( Jeonju) Decision 2014Na3844 decided December 17, 2015
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. In the event that an insolvent debtor transfers his/her own responsible property to a beneficiary through a litigation procedure and the judgment against him/her is finalized by means of confession, etc. in a lawsuit instituted by the beneficiary, or by a decision of recommending reconciliation, etc., and accordingly, the registration of transfer of ownership, etc. on the beneficiary’s responsible property has been completed in the future, a transfer agreement between the debtor and the beneficiary, which is the substantial cause of such series of acts, may constitute a fraudulent act detrimental to
Meanwhile, in a case where a creditor is sentenced to the revocation of a fraudulent act that orders the beneficiary or subsequent purchaser to recover the property held by the beneficiary or subsequent purchaser with the revocation of a fraudulent act, the beneficiary or subsequent purchaser is obligated to reinstate the property due to the revocation of the fraudulent act, and the legal relationship between the creditor and the debtor is not formed due to the revocation of the fraudulent act. Therefore, even if the registration of transfer of ownership completed through a final and conclusive judgment, etc. in the litigation procedure between the debtor and the beneficiary is revoked by the revocation of the fraudulent act, it cannot be deemed that it goes
2. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s father’s purchase of each of the instant real estate or possession of each of the instant real estate was not recognized as “the completion of the prescription period for acquisition by possession on March 31, 2012” with respect to each of the instant real estate by the Defendant. Furthermore, the lower court determined that, on February 7, 2014, the Nonparty filed a lawsuit against the Nonparty, who is in excess of the Defendant, seeking the implementation of the procedure for the registration of ownership transfer on the ground of “the completion of the prescription period for acquisition by possession on March 31, 2012,” and the Nonparty submitted a written reply to the purport that all of the Defendant’s assertion is recognized, and the said written reply was served on the Defendant on February 7, 2014, and that if the ownership transfer registration of the instant real estate was completed in the Defendant’s future, it constitutes a fraudulent act agreement between the Nonparty and the Defendant on February 27, 2014.
In light of the above legal principles and records, the above determination by the court below is just, and it did not err by misapprehending the legal principles as alleged in the grounds of appeal.
3. Conclusion
Therefore, the appeal is 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 Kim Jae-hyung (Presiding Justice)