In a case where, without clearly knowing that a creditor’s monetary donation to a third party constitutes a fraudulent act without knowing that the act of the debtor’s monetary donation to the third party constitutes a fraudulent act, the creditor claims that the title trust agreement was a fraudulent act and the registration of provisional disposition was completed by filing an application for prohibition of disposal of the real estate, with the knowledge that the real estate acquired in money was under title trust, whether the creditor may be deemed to have known of the cause of revocation (negative)

The “date when the creditor becomes aware of the cause for revocation” as the starting point of the exclusion period under Article 406(2) of the Civil Act refers to the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while knowing that he would prejudice the creditor, and the fraudulent act at this time refers to the act of disposal that is the object of revocation. Therefore, it cannot be deemed that the creditor becomes aware of the fact that the debtor committed a fraudulent act, even though the creditor was unaware of the debtor’s act of donation of money to a third party, the real estate in the name of a third party acquired in money was owned by the debtor without clear knowledge that the act of donation of money to the third party constitutes a fraudulent act, and that the provisional disposition of prohibition of disposal has been made by filing an application for prohibition of disposal of the real estate against the third party, knowing that the creditor

Article 406(2) of the Civil Act

Supreme Court Decision 2000Da3262 Decided September 29, 2000 (Gong2000Ha, 2199) Supreme Court Decision 2004Da17535 Decided June 9, 2005 (Gong2005Ha, 1115)

Plaintiff 1 and 6 others (Law Firm L&A, Attorneys Kang Chang-hum et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Busan High Court Decision 2008Na3770 decided October 9, 2008

The conjunctive claim portion of the judgment below is reversed, and this part of the case is remanded to Busan High Court. The remaining appeals are dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged the facts as to the plaintiffs' primary claim based on the employment evidence, and affirmed the judgment of the court of first instance which held that there is no evidence to acknowledge that there was a title trust agreement between the non-party 2 and the defendants with respect to each share of the defendants among the land and new buildings of this case. In light of the records, the judgment of the court of first instance is just and acceptable, and there is no violation of the rules of evidence as argued in the

2. Regarding ground of appeal No. 2

The "date when the creditor becomes aware of the cause for revocation", which is the starting point of the exclusion period under Article 406 (2) of the Civil Act, means the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while knowing that he harmed the creditor. In this case, the fraudulent act refers to the act of disposal that becomes subject to revocation, at the time of the creditor (see, e.g., Supreme Court Decisions 2000Da3262, Sept. 29, 2000; 2004Da17535, Jun. 9, 2005). Therefore, the creditor cannot be deemed to have become aware of the fact that the creditor knowingly knew that the debtor committed a fraudulent act with the knowledge that the debtor committed a fraudulent act with the knowledge that the debtor committed a monetary donation to a third party constitutes a fraudulent act, without knowing that the creditor was actually the debtor's ownership of the real estate in the name of the third party, and that the provisional disposition against disposal was made in the name of the third party.

The court below, based on its adopted evidence, asserted that the shares of the Defendants were fraudulent act in relation to the newly constructed new shares of the Plaintiff 1 and the deceased non-party 1 (hereinafter “Plaintiff, etc.”) on March 9, 2005. The court below held that, upon the application for provisional disposition of this case, Non-party 2 purchased the new shares of this case in 1,80,000 won and newly constructed the new building and completed the transfer of ownership and the preservation registration under the joint name of himself and the Defendants, it constitutes a fraudulent act in relation to the creditors. Since the court below's order of correction to specify the legal act of Non-party 2, which is subject to cancellation as fraudulent act after the expiration of the provisional disposition of this case, the plaintiff 1 and the deceased non-party 1 (hereinafter "the plaintiff, etc.") purchased the new shares of this case in order to avoid payment demand and compulsory execution of the obligees's new shares, they were not entitled to the above new shares sale contract of this case, and thus, it could be viewed that the Defendants' new shares were unlawful.

However, such judgment of the court below is hard to accept.

In light of the above legal principles and the records, even if the plaintiff et al.’s assertion that the order of correction of the court in charge of provisional disposition of this case, based on the premise that the title trust agreement is a fraudulent act, could be seen as a monetary donation contract, the plaintiff et al.’s assertion that the above monetary donation act against the defendants by the non-party 2 was doubtful, it is insufficient to conclude that the above monetary donation act constitutes a fraudulent act, and there is no other material to conclude that the plaintiff et al. knew that the above monetary donation act constituted a fraudulent act. Further, if the plaintiff et al. had known that the above monetary donation act against the defendants was a fraudulent act, the above title trust agreement was deemed as a fraudulent act under the premise that the land was owned by the non-party 2 and the right to claim its revocation was preserved, rather than applying for provisional disposition as above with respect to the land of this case, it is difficult to recognize that the above monetary donation act constituted a fraudulent act, considering that the plaintiff et al. took other measures such as provisional seizure for the purpose of preserving the right to claim for revocation of the above monetary donation.

Therefore, the court below should have deliberated more in detail whether the plaintiff et al. was aware of the fact that the joint security of the claim was insufficient or that the joint security had already been insufficient due to the act of monetary donation of the non-party 2, and that the plaintiff et al. had known that the non-party 2 had the intention to harm the claim. However, the court below determined that the exclusion period of the preliminary claim of this case was excessive on the ground of the above reasons, but it did not fully examine whether the plaintiff et al. knew that the above monetary donation of the non-party 2 was a fraudulent act, and did not err in the misapprehension of legal principles as to the starting point of the exclusion period, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the lower judgment’s conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)