1. The judgment of the court below on the legality of the lawsuit of this case

A. In a case where a beneficiary disposes of the property again to a third party because of the cancellation of the registration of collateral security in the future of a subsequent purchaser pursuant to the final judgment ordering the revocation of a fraudulent act after the lapse of the exclusion period for revocation of a fraudulent act, the creditor cannot seek the revocation of a fraudulent act within the exclusion period stipulated in Article 406(2) of the Civil Act. In addition, in light of the notion of justice that the creditor can seek restitution by exercising the right of revocation against the third party even after the expiration of the exclusion period for a fraudulent act, the creditor can seek restitution by exercising the right of revocation even after the expiration of the exclusion period for a fraudulent act.

B. ① When the registration of transfer of the right to revoke a fraudulent act was cancelled in accordance with the final judgment of a lawsuit seeking revocation, Nonparty 2 transferred part of the right to revoke a fraudulent act to the Defendant on September 29, 2010, and completed the registration of transfer of the right to revoke a fraudulent act. However, it is physically impossible for the Plaintiff to file a lawsuit for revocation of a fraudulent act prior to the conclusion of the contract with respect to a partial transfer of the right to revoke a mortgage that took place after the expiration of the limitation period for exercising the right to revoke a fraudulent act. ② It is based on the fraudulent act between Nonparty 2 and Nonparty 2 (hereinafter “the third party”) after the cancellation of the registration of transfer of the right to revoke a fraudulent act under the name of Nonparty 1 by the final judgment of a lawsuit seeking revocation of a fraudulent act. ③ Even if Nonparty 2 had already become final and conclusive, it seems that the period for revocation of a fraudulent act would correspond to the concept of justice after the judgment of revocation was rendered in order to circumvent the judgment of revocation of a fraudulent act. ④ Even in view of the circumstances that the Plaintiff’s exercise of the right to revoke.

Therefore, the instant lawsuit is lawful.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

A. In order for a creditor to exercise the right to revoke a fraudulent act against a subsequent purchaser pursuant to Article 406(1) of the Civil Act, the creditor shall file a claim with the court for the revocation of a fraudulent act between the debtor and the beneficiary within the period prescribed by Article 406(2) of the Civil Act. Even in cases where the creditor files a lawsuit against the beneficiary seeking the revocation of a fraudulent act and a judgment rendered by the court on the revocation of a legal act between the debtor and the beneficiary, the judgment becomes final and conclusive, the judgment is no longer effective against the subsequent purchaser, who is not the defendant in the lawsuit. Thus, in order for the creditor to seek restitution to the subsequent purchaser by exercising the right to revoke a fraudulent act against the subsequent purchaser, the creditor shall separately file a claim for the revocation of the fraudulent act between the debtor and the beneficiary within the period prescribed by Article 406(2) of the Civil Act (see, e.g., Supreme Court Decision 2004Da17535, Jun. 9, 2005). The same applies to cases where the subsequent purchaser

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

① On August 10, 2009, the judgment of Gwangju District Court 2009Gahap8781 against Nonparty 1 was rendered on August 10, 2009 to the effect that “The transfer and acquisition of the right to collateral security between Nonparty 2 and Nonparty 1 constitutes a fraudulent act” and that on October 8, 2009, the contract transfer agreement entered into between Nonparty 1 and Nonparty 2 with the Gwangju District Court on May 23, 2009 with respect to the instant real estate, etc. was revoked. Nonparty 1 performed the procedure for registration of cancellation of the right to collateral security transfer which was completed with respect to the instant real estate, and became final and conclusive on June 28, 2010.

② On September 14, 2010, the execution of the judgment above, the registration of transfer of the above right to collateral security was cancelled.

③ On September 29, 2010, upon the cancellation of the registration of the right to collateral security, Nonparty 2 entered into a contract to transfer to the Defendant the part of the right to collateral security (3,350,000,000 won) and completed the registration of the partial transfer of the right to collateral security (25649) on September 29, 2010.

④ On the other hand, on January 28, 2010, before the judgment became final and conclusive, the Plaintiff filed a lawsuit seeking revocation of fraudulent act by asserting that the instant mortgage agreement between Nonparty 1 and Nonparty 2 constituted a fraudulent act. On November 18, 2010, the instant mortgage agreement concluded between Nonparty 1 and Nonparty 2 was revoked. Nonparty 1 was sentenced to the judgment that “A procedure for cancellation of registration of cancellation of the instant mortgage registration of the instant real estate, which completed with respect to the instant real estate, is to be implemented on January 6, 201,” and became final and conclusive on January 6, 2011.

C. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff asserted that the Defendant was a debtor against Nonparty 1 on January 28, 2010 and that the mortgage contract between the beneficiary and Nonparty 2 constituted a fraudulent act, and filed a lawsuit to revoke the fraudulent act. Thus, the Plaintiff was aware of the establishment of the right to collateral security to Nonparty 2 with the beneficiary, knowing at the latest that the debtor would have harmed the Plaintiff. Accordingly, the exclusion period of the instant lawsuit is run from January 28, 2010 at the latest. Accordingly, the instant lawsuit filed against the Defendant, who is a new subsequent purchaser on September 20, 201 after the lapse of one year, was filed after the lapse of the period for filing the lawsuit stipulated in Article 406(2) of the Civil Act, and is unlawful.

Nevertheless, the lower court determined that the instant lawsuit was lawful on the grounds stated in its reasoning, which erred by misapprehending the legal doctrine on the limitation period for revocation of a fraudulent act.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning the defendant among the judgment below is reversed, and this part of 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 Park Poe-young (Presiding Justice)