Whether a creditor violates the compulsory execution and the good faith principle by making a third party’s real estate trusted to the debtor for the purpose of securing a claim (affirmative)

An obligee’s act of making a third party’s real estate title trust to a debtor in order to secure a claim, based on the compulsory execution on such real estate, cannot be permitted in light of the good faith principle.

Article 2 of the Civil Act, Article 509(1) of the Civil Procedure Act

[Judgment of the court below]

Defendant Kim-ho, Counsel for the defendant-appellant

Seoul High Court Decision 79Na3185 delivered on July 18, 1980

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal No. 1 by the defendant's attorney are examined.

According to the reasoning of the judgment below, the court below acknowledged the following facts: the plaintiff and the non-party 1 jointly purchased the real estate and trusted it to the non-party 2, and the non-party 2 did not bear a large amount of debt to the defendant's husband, but the defendant introduced the above non-party 2 to the non-party 1 for the purpose of securing the claim, actively recommended the above non-party 1 to title trust of the above real estate to the Dong and arranged the above procedure to the Dong. The plaintiff's claim against the non-party 2, who is one's own claim, won a lawsuit against the above non-party 2, and won a favorable judgment (the judgment in confession). In light of the records, the court below was legitimate in the process of raising evidence after the above fact-finding, and there is no violation of the rules of experience or rules of evidence. The arguments are without merit.

The second ground of appeal is examined.

The court below's decision that the compulsory execution of the defendant's real estate in this case is contrary to the good faith and cannot be allowed as it constitutes an abuse of rights or anti-social acts in light of the good faith principle is justified and there is no error of law of misunderstanding of legal principles in the theory of lawsuit. The argument is without merit.

The grounds of appeal No. 3 are examined.

According to the records, it is clear that the plaintiff's legal representative stated on April 23, 1980 in the preparatory documents of 1980 as stated on the fourth day for pleading of the court below alleged that the defendant's so-called is not permissible as an anti-social juristic act against the new side, and such assertion does not include the assertion of abuse of rights. Thus, there is no error of law that the court below did not assert the fact that the plaintiff's legal representative did not assert it.

Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ju (Presiding Justice)