[1] Whether a debtor's act of issuing promissory notes for the repayment of debts to a specific creditor constitutes a fraudulent act (negative)

[2] The case holding that in case where the debtor prepared a notarial deed to the effect that he accepts compulsory execution with respect to a claim for the amount of a bill more than five months after the debtor issued a bill for the repayment of the existing obligation and the creditor is given an order of seizure and assignment of the claim against the third debtor by using it, it cannot be deemed that the debtor's transfer of the claim to the creditor cannot be deemed as

[1] The act of damaging a creditor who is the object of a creditor's right of revocation refers to a juristic act which is for property right, and thus means that the debtor's passive property exceeds active property or exceeds his/her debts, and therefore, the debtor's issuance of a promissory note for the repayment of debts prior to this point does not increase the negative property, and it is difficult to view it as an act detrimental to other creditors.

[2] The case holding that in case where the debtor prepared a notarial deed to the effect that he accepts a compulsory execution with respect to a claim for the amount of a bill more than five months after the debtor issued a bill for the repayment of the existing obligation and the creditor is given an order of seizure and the whole order with respect to the claim against the third debtor by using it, it cannot be deemed that the debtor's transfer of the claim to the creditor

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code

(Attorney Cho Young-il, Counsel for the defendant-appellant)

Defendant

Seoul District Court Decision 2001Na62472 delivered on April 10, 2002

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

1. The lower court acknowledged the following facts.

A. On February 2, 1993, the Plaintiff filed a claim for reimbursement against the Nonparty, the Nonparty rendered a final and conclusive judgment ordering the Plaintiff to pay damages for delay at the rate of 21% per annum from March 25, 1992 to the date of full payment. The Plaintiff received KRW 1,719,329 out of the above claims.

B. On October 25, 1999, the Nonparty issued and delivered the Promissory Notes with a face value of KRW 50 million on October 25, 199, when he/she was liable for the Defendant, his/her mother’s debt of KRW 50 million. However, on March 29, 200, the Nonparty demanded the Nonparty to pay the said Promissory Notes, and the Nonparty demanded on April 11, 2000, the Nonparty issued a notarial deed to the effect that he/she consented to compulsory execution with respect to the instant Promissory Notes claim. The Defendant was issued a seizure and assignment order with respect to the instant Promissory Notes claim of KRW 45 million against the Korea National Housing Corporation, the only active property of the Nonparty, as of April 21, 200, and this order became final and conclusive on May 31, 200.

2. The lower court determined that the Nonparty’s revocation of the issuance of the Promissory Notes and the Nonparty’s claim for restitution of its original status may be claimed on the grounds that the Nonparty’s series of acts, as seen above, issued the Promissory Notes to the Defendant, who was his mother, and completed a notarial deed able to enforce compulsory execution, and caused the Defendant to receive the entire claim for reimbursement of the deposit money, do not correspond to the transfer of his sole property to the Defendant instead of paying the debt owed to the Defendant. The Nonparty, who was aware that it would prejudice the Plaintiff

3. However, an act detrimental to a creditor who is the object of a creditor's right of revocation refers to a juristic act aimed at a property right, which makes the debtor's passive assets exceed active property or the debtor's excessive debts go further. Therefore, since the debtor's issuance of a promissory note for the repayment of debts prior to this point does not increase the negative property, it is difficult to view it as an act detrimental to other creditors.

On the other hand, in this case, the Nonparty issued the Promissory Notes to the Defendant for the repayment of the amount borrowed from the Defendant, and later than five months thereafter, prepared and issued a notarial deed to the effect that he consented to compulsory execution regarding the claim for the amount of the Promissory Notes. The Defendant received an order of seizure and assignment of the Nonparty’s claim for the refund of the deposit money by using the Promissory Notes and the notarial Deed, and thus, cannot be deemed as having immediately transferred the Nonparty’s claim for the return of the deposit money to the Defendant. Moreover, there is no evidence to deem that the Nonparty issued the Promissory Notes to the effect that it would prejudice the Plaintiff.

Therefore, although the facts acknowledged by the court below alone do not constitute a fraudulent act against the plaintiff, the court below erred by misapprehending the legal principles as to the obligee's right of revocation or by violating the rules of evidence, thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)