[1] The standard for determining whether an act constitutes a fraudulent act in a case where a debtor’s act of reducing liability property causes or deepens the shortage of common security for general creditors

[2] The method of determining whether a beneficiary is bona fide in a lawsuit seeking revocation of a fraudulent act

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

[1] Supreme Court Decision 2007Da2718 Decided September 30, 2010 (Gong2010Ha, 1967) / [2] Supreme Court Decision 2007Da74621 Decided July 10, 2008

Plaintiff (Law Firm Jin, Attorneys Lee Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Thai, Attorneys Yellow-han et al., Counsel for defendant-appellant)

Seoul Northern District Court Decision 2014Na6983 decided July 7, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the establishment of fraudulent act

A. In a case where a debtor’s act of reducing liability property causes or deepens the shortage of common security for general creditors, whether the act constitutes a fraudulent act subject to revocation shall be determined by comprehensively taking into account the following circumstances: (a) the subject matter of the act constitutes a fraudulent act subject to revocation; (b) the weight of the debtor’s entire responsible property in the whole responsible property; (c) the degree of insolvency; (d) the justification of the economic purpose of the juristic act; and the reasonableness of the pertinent act, which is the means of its realization; and (e) the degree of perception of the parties as to the risks of lack of common security, such as the existence of a collusion between the debtor and the beneficiary; and (b) whether the act may ultimately be deemed an act detrimental to the general creditor (see Supreme Court Decision 2007Da27

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On November 13, 2008, Nonparty 1 filed a lawsuit against Nonparty 2 and 8, the Seoul Northern District Court 2007Gahap11228, and received KRW 265,110,000 from Nonparty 1, and at the same time, Nonparty 1 received payment from Nonparty 1 for each of the 1/9 shares of the instant apartment, the instant apartment and the instant apartment and the instant apartment and the instant apartment and the instant 701 (hereinafter collectively referred to as “the instant apartment, etc.”) with respect to each of the instant apartment and the instant apartment and the instant 701 shares, respectively, (hereinafter collectively referred to as “the instant apartment and the instant apartment”), and the judgment became final and conclusive.

(2) On January 1, 2014, Nonparty 1 and the Defendant were unable to complete the registration of ownership transfer on the instant apartment, etc., and on January 1, 2014, Nonparty 1 concluded a sales contract with the effect that the instant apartment is sold at KRW 180 million, but the down payment of KRW 162 million on the date of the contract, the remainder of KRW 162 million on the date of the contract, and the payment of KRW 162 million on January 6, 2014, respectively. Nonparty 1, even with Nonparty 3 on the same day, sold Nonparty 3 the apartment house of this case at KRW 180 million on the date of the contract, but the down payment of KRW 18 million on the remainder of KRW 162 million on the date of the contract, and concluded a sales contract again with Nonparty 1 to the Defendant on January 24, 2014 on the date of the contract, and KRW 18 million on the remainder of KRW 100 million on the date of the contract.

(3) Until April 11, 2014, the Defendant and Nonparty 3 paid to Nonparty 1 a total of KRW 360 million for the purchase price of the instant apartment and the instant apartment and the instant apartment and KRW 300 million. Nonparty 1 deposited KRW 265,110,000 out of the purchase price paid as the Seoul Northern District Court No. 20129 on March 31, 2014, with the deposited deposited KRW 265,110,000 as the deposited money as the foregoing as the Seoul Northern District Court No. 2014 on April 11, 201, and completed the registration of ownership transfer under the name of Nonparty 2 and Nonparty 3 on April 11, 2014.

C. According to these facts, it is difficult to deny that Nonparty 1’s act of selling the apartment of this case to the Defendant is an act of changing the property to money easily concealed or consumed in excess of the debt, and thus, it is difficult to view that there is no difference between the act of property reduction and the act of property reduction. However, Nonparty 1’s inevitable sale of the apartment of this case and the apartment of this case No. 301 to prepare funds for completing the registration of ownership transfer with respect to the apartment of this case, etc., but it is difficult to deny that there is a possibility that Nonparty 1 sold the apartment of this case and the apartment of this case No. 301 to the Defendant and Nonparty 3. Therefore, in light of the above legal principles, it is difficult to conclude that Nonparty 1’s act of selling the apartment of this case against the Defendant constitutes a fraudulent act detrimental to the general creditor,

Nevertheless, the court below held that the act of selling the apartment of this case against the defendant by the non-party 1, who is in excess of debt, was a fraudulent act solely on the ground that the non-party 1 sold the apartment of this case with an easy money to consume property by selling it to the defendant. The court below erred in the misapprehension of legal principles as to the establishment of a fraudulent act, which affected the conclusion of the judgment. The ground of appeal pointing this out

2. As to the ground of appeal on the good faith of the beneficiary

A. Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is responsible for proving his/her good faith in order for the beneficiary to be exempted from his/her liability. In such cases, the issue of good faith shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account various circumstances, such as the relationship between the debtor and the beneficiary, the details of and the background and motive for the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to suspect that the terms and conditions of the act of disposal, and whether there are objective materials to support the act of disposal as normal transaction, and circumstances after the act of disposal, etc. (see, e.g

B. According to the reasoning of the lower judgment and the record, the Defendant concluded the instant sales contract with the introduction of Nonparty 3 as to purchase KRW 180 million in close relation to the market price. At that time, there is no evidence to prove that the Defendant was aware of Nonparty 1’s financial situation or transactional situation, such as the relationship of relative with Nonparty 1, etc., and ② up to April 11, 2014, the Defendant paid KRW 180 million to Nonparty 1 the purchase price of the instant apartment by delivery of the instant apartment from May 2014, and appears to have been residing therein.

Examining the above circumstances in light of the legal principles as seen earlier, since the Defendant, the beneficiary, purchased the instant apartment at a close price with the market price, paid the purchase price, and received the instant apartment, and resided in it. Therefore, it is sufficient to deem the Defendant to be a bona fide beneficiary who purchased the instant apartment without knowing that the instant sales contract constitutes a fraudulent act, even if the period from the conclusion of the instant sales contract to the completion of the contract is 9 days, it can be deemed that Nonparty 1 attempted to sell the instant apartment and the instant apartment and the instant apartment and the instant 301 apartment to the Defendant and Nonparty 3 for the purpose of preparing funds for completing the registration of ownership transfer for the completion of the instant apartment and the instant apartment and the instant 301 apartment, so long as the Defendant could not be deemed to have known of Nonparty 1’s financial status, etc., such circumstances do not interfere with the presumption of bad faith as to the Defendant’s fraudulent act.

Nevertheless, the lower court rejected the Defendant’s assertion that the instant sales contract constitutes a bona fide beneficiary who was unaware of the fact that the instant sales contract was a fraudulent act. In so doing, the lower court erred by misapprehending the legal doctrine on the good faith of a beneficiary in revocation of a fraudulent act and the burden of proof thereof, which led to the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)