[2] Whether the scope of a third party, which does not affect the revocation of a fraudulent act, is limited to only the subsequent purchaser, etc. of the target real estate that newly performs a legal act on the basis of a fraudulent act (negative)

[3] The case holding that a judgment of revocation of a fraudulent act does not extend to a person who seized or provisionally seized real estate for the purpose of securing a claim already held as a beneficiary's creditor, not to establish a new legal relationship with a beneficiary

[2] Since the subsequent purchaser, etc. who acquired real estate, etc., which is the object of a fraudulent act through a new legal relationship is protected pursuant to the proviso of Article 406(1) of the Civil Act, recognizing only the relative effect of revocation of a fraudulent act is intended to coordinate the interests of the creditor and beneficiary, and third parties, which do not have the effect of revocation, should not be limited to only the subsequent purchaser, etc. of real estate, etc. that newly performed a legal act on the basis

[3] The case holding that even if the creditors of the beneficiary did not have a new legal relationship with the beneficiary, and even if the creditor of the beneficiary did not have a seizure or provisional seizure for securing the claim already owned by the beneficiary, the creditor of the beneficiary granted the right to be paid preferentially to the creditor of the beneficiary for the proceeds of the sale of the secured real estate, so it cannot be deemed that the creditor of the beneficiary has a validity of the judgment of revocation of the fraudulent act, since there is no ground for securing the effectiveness of the judgment of revocation of the fraudulent act, since the beneficiary did not have a right to be paid preferentially to the creditor of the beneficiary for the proceeds of the sale of the secured real estate in order to secure the claim of the beneficiary who purchased the secured real estate

A. Factual relations

According to the judgment of the court of first instance cited by the court below, the non-party 1 entered into a sales contract with the non-party 2 on the real estate of this case for which the right to collateral security is established against the non-party 2, and transferred the ownership of this case. As to the real estate of this case, the defendant Republic of Korea attached the claims against the non-party 2 as the preserved right, and the defendant Industrial Bank of Korea attached the claims against the non-party 2 as the preserved right. In the auction procedure under the right to collateral security as to the real estate of this case, the distribution schedule was prepared to distribute the proceeds of the real estate of this case to the non-party 3 and the defendant Industrial Bank of Korea in the third and fourth order, and thereafter the sale contract between the non-party 1 and the non-party 2 was revoked as a fraudulent act and the compensation for damages was finalized at that time.

B. The judgment of the court below

① The lower court determined that, in light of the following facts: (a) the Defendants are not the subsequent purchaser who acquired the instant real estate, but the provisional attachment obligee holding a claim against Nonparty 2 against the beneficiary; or (b) Nonparty 2, the beneficiary, is merely an interested party who acquired the ownership of the instant real estate, and thus, is merely an interested party who acquired the ownership of the instant real estate. As such, there is relatively little need to protect transaction safety or legal status compared to the subsequent purchaser; and (b) the judgment revoking the said fraudulent act does not have the effect on the creditor of the beneficiary, who is merely an interested party, who did not engage in a new legal act between the beneficiary and the subsequent purchaser; (c) the creditor’s claim, which is only an interested party, in the auction procedure against the pertinent real estate that was the object of the fraudulent act, would take precedence over the creditor’s right to claim the revocation creditor’s right; (d) the revocation creditor, even though having won in favor of the beneficiary by filing a fraudulent act lawsuit against the beneficiary, and thus, would be contrary to the purport of recognizing the fraudulent system.

2. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below on the validity of the fraudulent act revocation judgment in the following respects.

The revocation of a fraudulent act is a relatively effective revocation between the parties to a revocation lawsuit, and a third party, other than the parties, does not have any influence on the legal relationship due to the revocation, unless there are other special circumstances (see Supreme Court Decisions 89Meu35421, Oct. 30, 1990; 99Da9011, May 29, 2001).

Since the proviso of Article 406(1) of the Civil Act is protected for subsequent purchaser, etc. who acquired immovable property, etc., based on a new legal relationship, to recognize only the relative effect of revocation of fraudulent act is to coordinate the interests of creditors and beneficiaries of fraudulent act, and third parties whose effect is not effective, shall not be limited to only the subsequent purchaser, etc. of the real estate that newly performed a legal act on the basis of the fraudulent act with respect to the subject real estate, not to establish a new legal relationship with the beneficiary, but also to secure claims already held by the beneficiary as a creditor, even if the Defendants are not a person who seized or provisionally attached the subject real estate for the purpose of securing claims already held by the beneficiary, the subsequent purchaser, etc. who acquired the subject real estate shall be entitled to receive preferential reimbursement of the proceeds from the sale of the subject real estate from the fraudulent act to the creditor who is the beneficiary, and there is no ground to secure the effectiveness of the judgment of revocation of fraudulent act. Thus, the relative effect

Therefore, the court below erred by misapprehending the legal principles on the validity of revocation of fraudulent act, which affected the conclusion of the judgment, and the ground of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendants, the lower judgment is reversed, and 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.

Justices Shin Hyun-chul (Presiding Justice)