2018Da271909 Revocation of Fraudulent Act

Plaintiff

Defendant 1 and one other

Law Firm Doz., Counsel for defendant-appellant

[Defendant-Appellant] Plaintiff 1 and 2 others

Daegu District Court Decision 2018Na300126 Decided September 5, 2018

February 4, 2021

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. The Plaintiff is a creditor of a loan to the joint defendant company of the first instance trial for the development of the two family industry (hereinafter referred to as the “development of the two family industry”).

B. On June 2, 2014, Nonparty 1 filed a provisional registration of the right to claim the transfer of ownership on the ground of a pre-sale agreement with respect to the land of this case, which was owned by Nonparty 2 (hereinafter “instant land”). The two industry development made a supplementary registration prior to the provisional registration on June 12, 2014 with respect to the instant land, but made the principal registration on the ground of sale on July 9, 2014. On July 3, 2015, the two industry development revoked the registration of transfer of ownership on the ground of the sales contract (hereinafter “the instant sales contract”). On October 20, 2015, the Plaintiff acquired the registration of transfer of ownership on the ground of Defendant 1’s right to claim the transfer of ownership on July 2, 2015 (hereinafter “Defendant 1”) on the ground that Defendant 3 was revoked on October 16, 2015 on the ground that he was subject to the registration of transfer of ownership on the instant land.

2. Progress of lawsuit and the judgment of the court below

A. The Plaintiff filed the instant lawsuit against Nonparty 3 and the Defendants on July 20, 2016. Nonparty 3 and the Defendants filed the instant lawsuit. The instant sales contract concluded between Nonparty 3 and the Defendants, and the instant sales contract concluded between Nonparty 3 and Defendant 1, and the sales contract concluded on October 16, 2015, and the trust contract concluded on November 30, 2015 between the Defendants and Nonparty 3 and the Defendants, respectively, shall be revoked, and Nonparty 3 and the Defendants shall comply with the procedure for the registration of cancellation of ownership transfer registration.

The cause of the claim is both fraudulent act by the instant sales contract and the remaining contracts entered into between the Plaintiff and Nonparty 3, the debtor of the Plaintiff, and Nonparty 3, the beneficiary. Since the instant sales contract and the sales contract entered into between Nonparty 3 and Defendant 1 are null and void by a conspiracy, false representation, or anti-social legal act, the registration of ownership transfer of 1, 2, and 3 should be cancelled.

B. The presiding judge of the first instance court ordered the Plaintiff to correct the address against Nonparty 3, but ordered the Plaintiff to dismiss the Plaintiff’s complaint against Nonparty 3 on November 9, 2016, which did not correct, and around that time, the rejection order became final and conclusive as it is.

C. The first instance court dismissed the part of the Plaintiff’s claim for revocation of each fraudulent act against the Defendants among the instant lawsuit, accepted the claim for development of the two defense industry, and dismissed all the remainder of the claim against the Defendants.

D. The Plaintiff appealed against the judgment of the first instance court, and submitted an application for modification to the purport of the appeal to the lower court on April 19, 2018. The modified purport of the appeal is to cancel the instant sales contract and to implement the registration procedure for cancellation of the transfer of the second and third transfer of the ownership, respectively.

The lower court deemed that the change in the purport of appeal was changed in exchange for the claim seeking the cancellation of the instant sales contract, which was concluded between Nonparty 3 and Defendant 1, and the claim seeking the cancellation of the trust contract between the Defendants.

E. The lower court dismissed the Plaintiff’s claim for cancellation of the instant sales contract among the Plaintiff’s lawsuits against the Defendants for the following reasons. At least, the Plaintiff knew the cause for cancellation of the instant sales contract on July 20, 2016, which filed the instant lawsuit, and filed a lawsuit seeking cancellation of the instant sales contract through the application for modification of the purport of the appeal on April 19, 2018, which was one year thereafter. As such, this part of the lawsuit is unlawful as its limitation period has expired.

In addition, the lower court did not accept the claim for cancellation of the ownership transfer registration on the following grounds. Since the lawsuit seeking cancellation of the instant sales contract is unlawful, the Plaintiff’s right to claim restitution against the Defendants is not recognized. The instant sales contract, etc. cannot be deemed null and void as a conspiracy, false representation,

3. Supreme Court Decision

(a) A lawsuit for revocation by a creditor shall be brought within one year from the date on which the creditor becomes aware of the cause of revocation;

(Article 406 (2) of the Civil Act)

Where the purport of a creditor’s claim for revocation of a fraudulent act between a debtor and a beneficiary is clearly indicated in the course of filing a lawsuit for revocation with a beneficiary and a subsequent purchaser as a co-defendant, the obligee’s right of revocation should be deemed to have been exercised by revoking the fraudulent act between the debtor and the beneficiary in relation to the subsequent purchaser. Even if the purport of seeking revocation of a fraudulent act is not separately stated in the purport of the claim against the beneficiary and the subsequent purchaser, it cannot be deemed that the purport of seeking revocation is limited to a claim against the beneficiary (see Supreme Court Decision 2011Da46647, Oct. 13, 201).

B. Examining the above facts in light of the aforementioned legal doctrine, the following conclusion is derived.

The Plaintiff filed the instant lawsuit with Nonparty 3, a beneficiary, and the Defendants, a subsequent purchaser, as co-defendant. The Plaintiff sought revocation of the instant sales contract concluded between the debtor and Nonparty 3, a beneficiary, in the claim stated in the written complaint. In light of the content of the instant lawsuit, the Plaintiff asserted that the instant sales contract should be revoked as it constitutes a fraudulent act against the Plaintiff. In light of such content of the written complaint, the claim in the written complaint should be deemed that the Plaintiff’s claim for revocation of the instant sales contract was included in relation to the Defendants, a subsequent purchaser, and that the written complaint against Nonparty 3 was dismissed.

The Plaintiff’s change in the purport of the appeal in the lower court can be deemed to have maintained the part seeking the cancellation of the instant sales contract within the scope of the previous purport of the claim and to have withdrawn the part seeking the cancellation of the remaining contracts. It is difficult to deem that the Plaintiff filed a lawsuit seeking the cancellation of the instant sales contract against the Defendants, the subsequent purchaser, only when the appellate court amends the purport of the claim as above. On May 20, 2016, the Plaintiff, on the instant land, received a decision on the provisional disposition for the prohibition of disposal on the ground that the right to claim the cancellation of ownership transfer registration based on the revocation of fraudulent act was a preserved right, or at the time of filing

Therefore, among the Plaintiff’s lawsuit against the Defendants, the part seeking the cancellation of the instant sales contract ought to be deemed lawful before the expiration of the exclusion period. Nevertheless, the lower court determined that the part seeking the cancellation of the instant sales contract among the Plaintiff’s lawsuit against the Defendants was unlawful as the exclusion period expired, and that the Plaintiff’s claim seeking the cancellation of the ownership transfer registration was not recognized on this premise. The lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the initial date of the exclusion period in a lawsuit seeking the cancellation of a fraudulent act

4. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, 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.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok