The case that reversed the judgment of the court below on the ground of incomplete hearing on whether it constitutes a fraudulent act

The case that reversed the judgment of the court below on the ground of incomplete hearing on whether it constitutes a fraudulent act.

Article 406 of the Civil Act, Articles 183 and 187 of the Civil Procedure Act

[Defendant-Appellee] Plaintiff 1

Defendant 1 and nine defendants, et al., Counsel for the defendant-appellee-appellant

Seoul High Court Decision 94Na9834 delivered on December 28, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records of this case, as to the plaintiff's assertion that the transfer agreement between the non-party M&D Co., Ltd. (hereinafter "non-party company") and the defendant 9 and the defendant 10 on December 2, 1991 was a false legal act by a conspiracy, the court below is justified in rejecting the above assertion on the ground that it is difficult for the court below to believe that there is no other evidence to acknowledge the above facts and there is no other evidence to prove the above facts, and there is no error of law such as the theory of lawsuit. The argument is without merit

On the second ground for appeal

1. According to the reasoning of the judgment below, the above company concluded a contract with the non-party 1 as stated in its holding, and the non-party 1 company loaned 10,00,000 won to the above co-owners for each of the above co-owners, and the non-party 2 subrogated for all of the secured claims secured by the mortgage established on the building before April 191. The non-party 9 company started the construction of this case and went into operation for the non-party 1, the representative director of the non-party 1, and the non-party 9 company transferred 7,00,000 won of the above bonds to the non-party 9 company for the above non-party 1 to the non-party 9 company's transfer of the above bonds to the non-party 1. The court below decided that the non-party 1 company will not be liable for damages from the above non-party 9 company's transfer of the above bonds to the non-party 2's non-party 9 company's transfer of the above bonds and the above bonds.

2. However, although the non-party company's transfer under the above transfer agreement is the status of the contract between the co-owners of the land in this case and if the non-party company fails to continue the construction by taking over the status of the contract to a third party due to the lack of funds, etc., the non-party company should lose its rights to the above 12 households, which the non-party company would be paid in payment from the co-owners of the land in this case, and as a result, the non-party company may be liable for damages to the co-owners of the land in this case due to the non-performance of the above contract, the objective appraised value of the position of the contract in this case exceeds the amount of the above defendants' obligations under the above transfer agreement as stated in the above transfer agreement, and if the non-party company was in excess of its obligations at the time of the above transfer agreement or the above transfer agreement led to the above excess of its obligations, it cannot be said that the above transfer act

Therefore, the court below should have deliberated on whether the objective assessed value of the right transferred by the non-party company to the above defendants under the above transfer agreement constitutes a fraudulent act (However, if the non-party company fails to perform the above contract, it should be considered that the right to the above 12 households can be lost and the liability for damages can be borne) and then should have determined whether the above transfer agreement constitutes a fraudulent act in comparison with the amount of the obligation taken over by the above defendants in the above transfer agreement.

Second, even if the objective assessed value of the right transferred to the above Defendants under the above transfer agreement was equivalent to the amount of the non-party company's debt which the above Defendants acquired under the above transfer agreement, it shall be deemed that the above agreement constitutes a fraudulent act for the purpose of undermining the plaintiff's damage, even if the non-party company was in excess of the debt at the time of the above transfer agreement, and the plaintiff's claim against the non-party company was related to the construction of this case as in the same manner as the plaintiff's claim against the non-party 2, and thus, although the nature of the plaintiff's claim or the above non-party 2's claim is identical, it shall be deemed that the non-party company and the above non-party

3. Therefore, the court below should have judged whether the above transfer agreement constitutes a fraudulent act after examining the following: (a) the amount of reasonable assessed value at the time of the above transfer agreement, (b) whether the non-party company was in excess of the obligation at the time of the above transfer agreement; (c) whether the Plaintiff’s claim against the non-party company was incurred in relation to the instant construction project as well as the Plaintiff’s claim against the non-party 2; and (d) whether the non-party company and the above Defendants took over only the obligation against the non-party 2 with the knowledge of the Plaintiff’s claim, and (e) whether the above transfer agreement constitutes a fraudulent act; and (e) the court below determined that the above transfer agreement does not constitute a fraudulent act on the grounds as stated in its reasoning. Accordingly, the court below erred by misapprehending the legal principles as to the violation of the rules of evidence and the right of revocation; and

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)