Busan District Court-2015-Na48181 (Law No. 16.30)

After the ruling of recommending the cancellation of registration of ownership transfer, it is not possible to claim compensation for value by fraudulent act cancellation.

It is inappropriate to claim compensation for value due to the cancellation of fraudulent act on the ground that the defendant cannot cancel the registration of ownership transfer according to the decision of recommendation for compromise.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

Supreme Court Decision 2016Da237646 Decided Fraudulent Act

Korea

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Busan District Court Decision 2015Na48181 Decided June 30, 2016

May 10, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

(a) Where a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary shall reinstate;

A debtor shall be liable to return the subject matter of a fraudulent act. If it is impossible to return the subject matter of a fraudulent act,

If it is substantially difficult to restore, it shall be such obligation as to pay for the value of the object of fraudulent act.

(2) If it is impossible or substantially difficult to return the original property, the original property shall be returned.

It is not simply absolute, physically impossible, but also a social experience rule or transaction.

In light of the concept, the creditor cannot expect the realization of performance from the beneficiary or subsequent purchaser.

As such, the third party regarding the real estate after the transfer of ownership of the real estate by fraudulent act

Where a beneficiary has acquired a mortgage or superficies, the limitation on the mortgage, etc. on real estate.

In the absence of special circumstances, such as the restoration to such state and transfer to the debtor

The creditor may seek against the beneficiary compensation equivalent to the value of the original claim in lieu of the return of the original claim, but

By doing so, the creditor seeks the return of the original property by taking the risk or disadvantage on his own.

creditor is not allowed to recover the value as a means of restitution. The creditor is not a beneficiary in lieu of compensation for value.

In order to seek cancellation of registration of name or for the beneficiary, a direct transfer registration of ownership is made in the debtor.

may seek performance of the difference. In such cases, the right to claim restitution shall be at the time of the closing of the trial court proceedings.

Upon the choice of the creditor, either the original return and the equivalent compensation shall become final and conclusive. A group of creditors shall be

The judgment in favor of the court is final and conclusive by claiming the cancellation of registration in the name of the beneficiary as the revocation and reinstatement.

In other words, the right to claim restitution against the beneficiary again, and the right to claim restitution is re-determined.

(2) If the debtor is entitled to file a claim for ownership transfer registration

Therefore, such a claim is not allowed because there is no benefit in the protection of rights (see Supreme Court Decision 201Do129, Dec. 12,

28. See, e.g., Supreme Court Decision 2017Da265815.

B. (1) The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

(A) On June 10, 2013, the Defendant: (a) from BB and CC, the Plaintiff’s debtor, and its wife

A sales contract for shares of 1/2 of real estate shall be concluded, and on June 11, 2013, the ownership of the above real estate shall be effected.

The registration of ownership transfer is completed.

(B) The Defendant’s receipt of the instant real estate on August 11, 2014 by Busan District Court Branch of Dong Branch of the District Court.

under § 78216.16.120,000,000. The debtor shall be

The registration of the establishment of the right to collateral security in this case was completed with Ee.

(C) On August 18, 2014, the Plaintiff filed against the Defendant with the Dong Branch of the Busan District Court on the part of the Defendant.

The sales contract dated June 10, 2013 with respect to 1/2 shares among the instant real property is revoked.

J. The defendant shall give BB with respect to the share of 1/2 of the above real estate to BB in Busan District Court 2013.

6. 11. The procedure for the cancellation of the ownership transfer registration of this case, which was completed by the receipt No. 56240, is followed

In the purport of this case, the previous suit was filed.

(D) On November 13, 2014, the court below held that "the defendant is entitled to share 1/2 of the real estate in this case to BB."

to the effect that the registration procedure for cancellation of ownership transfer registration of this case completed shall be complied with.

On December 2, 2014, the decision to recommend the settlement was confirmed as is.

(2) Next, the lower court: (a) established the instant mortgage prior to the filing of the prior suit;

The plaintiff is entitled to seek compensation equivalent to the value of restitution from the revocation of fraudulent act.

In spite of its choice, it has the same effect as a final and conclusive judgment by claiming the return of the original at its own option.

of this case, as long as the ruling of recommending the settlement of this case has become final and conclusive, e-e, a collateral security

This is the reason why the registration of ownership transfer of this case cannot be cancelled in accordance with the above decision of reconciliation recommendation.

In this case, the plaintiff may again revoke the fraudulent act as the lawsuit in this case and recover the subsequent claim.

The claim is illegal because there is no benefit of protection of rights.

C. The above determination by the court below is just in accordance with the legal principles as seen earlier, and the appeal is dismissed.

Unlike the assertion, there was no error by misapprehending the legal doctrine regarding the benefit of protection of rights.

2. Regarding ground of appeal No. 2

The lower court, citing the reasoning of the first instance judgment, dismissed the registration of transfer of ownership of this case to the Defendant.

not be deemed to have a duty to obtain the consent of the above mortgagee, a third party with interest.

The Court determined that it was.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no award.

As alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the effect of the ruling of recommending reconciliation.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below erred by misapprehending the legal principles as to the plaintiff's assertion.

The amount of KRW 16,3750,000 to the plaintiff by means of not raising any objection to the above Reconciliation Recommendation Decision

It was determined that it was difficult to see that the party suffered damages.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no award.

As alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on deception.

4. As to the fourth ground for appeal

According to the reasoning of the judgment below, the court below held that a third party's mortgage on the object after fraudulent act.

(b) If a creditor acquires a right such as superficies, etc., a statement of value against the beneficiary in lieu of return of the original

(1) The return of the original property by a creditor who is at the risk or disadvantage of his/her own;

the effect of the ruling of recommending the settlement of this case on the ground that the seeking is not allowed.

We rejected the Plaintiff’s assertion that there was no objection.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no award.

In so doing, contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding invalid ruling of recommending reconciliation.

5. Ground of appeal No. 5

Even in cases corresponding to original impossibility, compensation for value may be claimed in accordance with the legal principles of the subject claim.

The argument to the effect that it was first raised in the final appeal, and thus becomes a legitimate ground for appeal.

subsection (b) of this section.

6. Conclusion

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

It is decided as per Disposition by the assent of all participating Justices.