Requirements for exceptionally determining whether a claim not yet established at the time of a fraudulent act is highly probable as a claim to be preserved by the obligee's right of revocation and its requirements.

Article 406(1) of the Civil Act

Supreme Court Decision 95Da27905 Decided November 28, 1995 (Gong1996Sang, 173), Supreme Court Decision 2001Da70788 Decided December 6, 2002, Supreme Court Decision 2011Da76426 Decided February 23, 2012 (Gong2012Sang, 507)

Korea Credit Guarantee Fund (Law Firm Seowon, Attorneys Shin Shin-man, Counsel for the plaintiff-appellant)

Defendant (Law Firm Cheongju, Attorney Cho Jae-hun, Counsel for defendant-appellant)

Cheongju District Court Decision 2011Na4309 decided August 21, 2012

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

The grounds of appeal are examined.

1. Although it is necessary to deem a claim that can be protected by the obligee’s right of revocation as a matter of principle had arisen prior to the act of fraudulent act. However, there is high probability that at the time of the fraudulent act, there has already been legal relations forming the basis of the establishment of a claim, and that the claim should be established in the near future, and where a claim has been established in the near future due to its reality, the claim may be exceptionally subject to the obligee’s right of revocation. This is because even in such a case, there is a need to preserve the obligor’s property for the obligee and there is awareness that the obligor would prejudice the obligee (see Supreme Court Decision 95Da27905, Nov. 28, 1995). In this context, the probability as a requirement for recognizing the obligee’s right of revocation should not be determined to the extent that there is a possibility of occurring a claim in the near future, and at least, it should be determined whether the obligor’s property and the obligor’s property and the obligor’s property and the obligor’s property and the obligor’s property status should be objectively 201.

2. On October 27, 2005, the lower court: (a) determined that the Plaintiff’s credit guarantee contract was 0.0 billion won for a total of KRW 170 million and KRW 20,000 for a credit guarantee of KRW 40,000,000,000,000,000 for KRW 106,00,000,000,000,000,000,000,000,000,000,000 KRW 40,00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,00,00.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

The reasoning of the lower judgment and the evidence duly admitted by the lower court revealed as follows: (a) four loans, Cheongju-do, were paid normally until October 28, 2009 through January 13, 2010; and (b) there was a guarantee accident under the instant 4 credit guarantee contract only after ten months have elapsed since the conclusion of the instant credit transfer contract; and (c) on April 28, 2010, when three months have passed thereafter, the Plaintiff made a subrogation to a national bank under each of the instant credit guarantee contract and acquired a claim for indemnity; (d) on the other hand, the Plaintiff also acquired a claim for reimbursement on October 23, 2009, which is the date of the conclusion of the instant credit transfer contract; and (e) in light of the legal principles as seen earlier, it is difficult to conclude that the instant credit transfer contract was established in the future, even if it was based solely on the circumstance that the instant claim was established at the time of the conclusion of the said contract.

Nevertheless, the court below held that the plaintiff's claim for reimbursement against the non-party 1 can be a preserved claim against the obligee's right of revocation for reasons stated in its holding. In this case, the court below erred by misapprehending the legal principles as to the preserved claim against the obligee's right of revocation, which affected the conclusion of its judgment. The ground of appeal on this point has merit.

4. 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 Kim Shin (Presiding Justice)