[1] Where a division of property following a divorce becomes subject to revocation of a creditor, and where the burden of proof is borne (=creditor)

[2] In a case where there are other purposes in the agreement divorce, whether the agreement divorce is null and void (negative)

[1] Articles 406 and 839-2 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Articles 834 and 836 of the Civil Act

[1] Supreme Court Decision 200Da14101 Decided July 28, 200 (Gong2000Ha, 1940) Supreme Court Decision 2006Da33258 Decided September 14, 2006 / [2] Supreme Court Decision 93Meu171 Decided June 11, 1993 (Gong193Ha, 2021)

Plaintiff (Law Firm Woo, Attorneys Lee Chang-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Pyeongtaek, Attorneys Ahn Dai-hee et al., Counsel for the defendant-appellant)

Busan District Court Decision 2015Na48808 Decided August 12, 2016

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Division of property following divorce is a system that has the economic difficulty of supporting the other party, which is the liquidation of the joint property achieved through mutual cooperation between the other party during the marriage. Although the debtor who has already been in excess of his/her debt, while divorced and transfers a certain property to his/her spouse to the division of property, the division of property is not subject to revocation by a creditor as a fraudulent act, unless there are special circumstances to deem that such division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, and it is not subject to revocation by a creditor, but it is subject to revocation by a creditor as it cannot be deemed a legitimate division of property beyond a considerable degree. However, the creditor has the burden of proving that there are special circumstances to deem it as excessive division of property beyond a considerable degree (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 203Da32586, Sept. 14, 2006).

Meanwhile, in light of the legal importance of the divorce declaration under the formal principle as to whether divorce takes effect, the intention of divorce in divorce is the intention to resolve the legal marital relationship. Thus, insofar as a divorce declaration is filed under the agreement between the parties who intend to temporarily resolve the marital relationship under the law, the agreement cannot be deemed to have no intention of divorce between the parties even if there exists any other purpose in divorce, and therefore the agreement shall not be null and void (see Supreme Court Decision 93Meu171 delivered on June 11, 1993, etc.).

2. According to the reasoning of the lower judgment and the record, ① the Nonparty and the Defendant were legally married couple who completed the marriage report in 1977, but the agreement was married on November 8, 2013, ② the instant real estate was owned by the Nonparty, and ② the ownership transfer registration was completed in the Defendant’s future on the grounds of donation on January 11, 2010; and thereafter, the said ownership transfer registration was revoked on June 27, 2014 according to the final and conclusive judgment of the instant lawsuit instituted by the Plaintiff; ③ the Defendant again completed the ownership transfer registration on the instant real estate on the grounds of “property division on June 27, 2014” on July 2, 2014.

As to the Defendant’s assertion that the transfer of ownership on July 2, 2014 regarding the instant real estate does not constitute a fraudulent act as it is within the scope of legitimate division of property, the lower court determined to the effect that the said transfer of ownership constitutes a fraudulent act without need to consider whether it is within the scope of legitimate division of property, inasmuch as the Nonparty and the Defendant conspired with intent to evade or evade compulsory execution based on the final and conclusive judgment of the instant lawsuit, rather than a real division of property.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

First of all, in light of the legal principles as seen earlier, even if there were other purposes, such circumstance alone is difficult to readily conclude that there was no intention of divorce between the Nonparty and the Plaintiff. If it is difficult to deem the divorce between the Nonparty and the Plaintiff as null and void, it is reasonable to deem the above transfer of ownership as the genuine division of property following the divorce, as stated in the grounds for registration. However, if such act exceeds a considerable degree as a division of property, it can only be the subject of revocation of fraudulent act, as far as it exceeds its considerable degree.

Therefore, the lower court should have determined the adequate amount of property division to be received by the Defendant in full view of all the circumstances following the marriage between the Nonparty and the Defendant, including the property holding by both the Nonparty and the Defendant, if the Plaintiff did not prove that the above agreement between the Nonparty and the Defendant is null and void, and should have ordered revocation as a fraudulent act only in the case of exceeding the aforementioned part.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court concluded that the transfer of ownership constitutes a fraudulent act. In so doing, the lower court erred by misapprehending the legal doctrine on the object of revocation of a fraudulent act and division of property, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Therefore, 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 on the bench.

Justices Park Sang-ok (Presiding Justice)