Whether a debtor is eligible for defendant in a lawsuit seeking revocation of a fraudulent act and recovery of responsible property together with the revocation of a fraudulent act (negative)

In a lawsuit for the revocation of a fraudulent act by which the creditor seeks the revocation of a fraudulent act and the recovery of the responsible property, only the beneficiary or subsequent purchaser may be prosecuted, and there is no standing for the debtor.

Article 406 of the Civil Act

Korea Technology Credit Guarantee Fund (Attorney Hwang-soo, Counsel for the defendant-appellant)

Defendant 1 and one other

Seoul Central District Court Decision 2008Na1636 Decided August 22, 2008

The part of the lower judgment against Defendant 1 is reversed, and Defendant 1’s appeal is dismissed. Defendant 2’s appeal is dismissed. The litigation cost after the appeal between the Plaintiff and Defendant 1 is assessed against Defendant 1, and the costs of appeal between the Plaintiff and Defendant 2 are assessed against Defendant 2.

1. As to Defendant 1’s appeal

Before determining the grounds of appeal, we examine it ex officio.

According to the judgment of the court of first instance and the records, Defendant 1 did not object to the part ordering the payment of indemnity against Defendant 1 among the judgment of the court of first instance. Defendant 1 appealed against the part ordering the cancellation of the sales contract and the cancellation of the registration of transfer of ownership between Defendant 2, which was concluded between the Defendants as to each of the real estate of this case, by means of fraudulent act, only the part ordering the cancellation of the sales contract and the cancellation of the registration of transfer of ownership between Defendant 2. Thus, in a lawsuit seeking the cancellation of fraudulent act by the creditor to recover the responsible property together with the cancellation of fraudulent act, only the beneficiary or subsequent purchaser is the defendant, and there is no defendant qualification. In this case, Defendant 1 as to the part demanding the cancellation of the above sales contract and the cancellation of transfer of ownership registration is only Defendant 2, and Defendant 1 is not the defendant, and thus, Defendant 1 is not the party qualification to file an appeal against the judgment of first instance that

If so, the court below should have dismissed Defendant 1’s appeal, but the court below should have judged the appeal on the merits and sentenced the dismissal of appeal. Therefore, this part of the court below’s appeal cannot be reversed without the need to further decide on the grounds of appeal.

2. As to the appeal by Defendant 2

Defendant 2 did not file an appellate brief within the statutory period (the appellate brief of the above Defendant was filed on November 14, 2008), and the petition of appeal did not contain any indication in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed. Since this part is sufficient for this court to directly render a judgment, the appeal by Defendant 1 is dismissed, and Defendant 2’s appeal is dismissed. Defendant 2’s appeal is dismissed. The costs of the lawsuit after the appeal between the Plaintiff and Defendant 1 and Defendant 2 are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)