[1] Whether an appeal may be filed against a judgment that won the entire award (negative)

[2] In a case where the existing right to collateral security was cancelled by repayment after the fraudulent act, whether the creditor may order the return of the original property beyond the scope of compensation for value sought by the creditor (negative)

[3] In a case where a creditor claimed partial revocation of a fraudulent act and return of the value thereof on the ground that the establishment registration of a mortgage was cancelled by repayment after a fraudulent act with regard to real estate on which the right to collateral security was established, but the court below ordered the return of the real estate itself due to its restitution, the case holding that the court below's judgment is unlawful to file an appeal seeking alteration

[1] Article 422 of the Civil Procedure Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act, Article 422 of the Civil Procedure Act

[1] Supreme Court Decision 86Meu1340 delivered on May 12, 1987 (Gong1987, 960) Supreme Court Decision 2001Da76298 delivered on July 22, 2003 (Gong2003Ha, 1757)

Korea Credit Guarantee Fund (Law Firm Pule, Attorneys Yellow-ho et al., Counsel for the defendant-appellant)

Defendant

Busan High Court Decision 2008Na11795 Decided December 3, 2008

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff.

Ex officio, the appeal is lawful.

The final appeal is a claim for revocation and alteration of a judgment disadvantageous to himself/herself in favor of himself/herself, and even if the court below ordered the payment of the portion which the parties did not request, it cannot be claimed as a party who is a benefit. The final appeal against the judgment below in favor of the entire winning the final appeal is not allowed as there is no benefit in filing the final appeal (see, e.g., Supreme Court Decisions 86Meu1340, May 12, 1987; 2001Da76298, Jul. 22, 2003).

According to the records, the plaintiff filed a claim for partial revocation of the fraudulent act and the return of value on the real estate of this case for which the right to collateral security was established, on the ground that the registration of creation of a collateral security was revoked by repayment after the fraudulent act. The court below, as the plaintiff sought, ordered the revocation of the fraudulent act, and ordered the return of the real estate itself, not by the return of value, but by the restoration of the original state, and filed an appeal by asserting that the plaintiff ordered the return

In the instant case where the existing right to collateral security after the fraudulent act was cancelled by repayment, barring any special circumstance, ordering the return of the original property beyond the scope of the equivalent compensation sought by the obligee is not permissible, barring any special circumstance. However, the Plaintiff, who is a benefit to himself/herself, cannot seek a change in light of the legal principles as seen earlier, and thus, the Plaintiff’s appeal is unlawful as it is without benefit of the appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)