[1] The standard for determining whether a joint and several surety had intent to harm the debtor's fraudulent act

[2] In a case where the debtor's sole asset is converted into money that can be sold and consumed, the nature of the fraudulent act (affirmative) and the presumption of intention to commit suicide (affirmative), and the burden of proof as to the beneficiary's bad faith

[1] Whether a joint and several sureties had the intent to harm at the time of selling real estate shall be determined by the fact that the joint and several sureties knew that his/her own property status would cause a shortage in securing the obligation to guarantee the creditor's joint and several sureties's obligation. Although the joint and several sureties knew that his/her property status of the principal debtor would cause a shortage in securing his/her obligation, he/she shall not be able to recognize his/her intent to harm.

[2] The debtor's act of selling real estate, which is the only property of the debtor, and changing it into money which is easily consumed, always becomes a fraudulent act against the creditor, barring special circumstances. Therefore, the debtor's intent of prejudice is presumed, and the burden of proof that the purchaser did not have bad faith is the beneficiary

[1] Articles 406(1) and 437 of the Civil Act / [2] Article 406(1) of the Civil Act, Article 261 of the Civil Procedure Act

[1] Supreme Court Decision 80Da1403 decided May 25, 1982 (Gong1982, 1594) / [2] Supreme Court Decision 66Da1535 decided Oct. 4, 196 (No. 14-3, 138), Supreme Court Decision 90Da16276 decided Feb. 12, 1991 (Gong1991, 981, 981), Supreme Court Decision 96Da2606, 2613 decided May 9, 197 (Gong197, 172), Supreme Court Decision 95Da51908 decided May 23, 197 (Gong197, 1958), Supreme Court Decision 197Da17879 decided Feb. 197, 198 (Gong197, 198)

Industrial Bank of Korea (Law Firm Shin & Yang, Attorney Kang Jae-hoon, Counsel for defendant-appellant)

Defendant (Attorney Dohn Law, Counsel for defendant-appellant)

Seoul High Court Decision 97Na8504 delivered on October 29, 1997

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

The grounds of appeal are examined.

The court below rejected the non-party 1's assertion that the non-party 1's loan balance of the plaintiff as of September 25 of the same year was 1,139,200,000 won after the non-party 1 agreed three times from March 20, 1996 to August 1 of the same year with the credit limit of 1,167,00,000 won from the plaintiff, and had been extended from time to time on September 25 of the same year, the non-party 1 knew that the non-party 1 did not have any other real estate as joint and several surety, or that the non-party 1 did not have any other real estate property as of September 12, 1996. The non-party 1 knew that the non-party 1's loan balance of the non-party 1 was 360,000,0000 won, or that the non-party 1 did not have any other real estate property as joint and several surety at the time of sale.

However, in a fraudulent act which is the object of a creditor's right of revocation, it refers to recognizing that there is a lack of joint collateral for the claim. However, in this case, the plaintiff's assertion that the plaintiff's claim against the non-party 1 is infringed upon by a joint and several guarantee contract acknowledged by the court below by the act of selling the real estate of this case, which is the joint and several surety. Thus, it should be determined by the fact that the non-party 1 knew that the non-party 1, the joint and several surety debtor, was aware that the above act of selling the real estate of this case would be insufficient to secure the above joint and several surety obligation against the plaintiff. As decided by the court below, the decision of the court below should have known that the non-party 1, the principal obligor, was insufficient to secure the obligation of the non-party company as the principal obligor, but it should not be recognized.

However, unless there are special circumstances, the debtor's act of selling real estate, which is one of his own exclusive property, and changing it into money which is easy for the debtor to consume, is presumed to be a fraudulent act against the creditor, so the debtor's intention is presumed to be fraudulent, and the burden of proof that the purchaser has not been malicious (see, e.g., Supreme Court Decisions 66Da1535, Oct. 4, 1966; 95Da51908, May 23, 197; 95Da51908, Oct. 4, 1997; etc.). As acknowledged by the court below in this case, if the non-party 1 sells the real estate of this case, which is the only property of this case where the debtor's joint and several liability for the plaintiff is established, such sale becomes a fraudulent act against the plaintiff, and in this case, the non-party 1's intention is presumed to be a fraudulent act. Thus, the court below should have determined that the non-party 1 and the defendant did not have such intent.

Nevertheless, the court below's rejection of the plaintiff's fraudulent act's assertion on the ground that there is no evidence to prove that the court below knew that the non-party 1 knew of the plaintiff's actual amount of loans to the non-party company or the assets status of the non-party company, etc., and there is no evidence to prove that the non-party 1 knew of the situation of the non-party company, such as the non-party 1 was working for the non-party company, etc.

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 Final Young-young (Presiding Justice)