[1] The meaning of "the date when the creditor becomes aware of the cause of revocation" in the exercise of the right of revocation

[2] The scope of compensation for value in a case where a bona fide third party orders compensation for the acquisition of mortgage after a fraudulent act, and in a case where the revocation of a fraudulent act made in the form of gift orders compensation for value in a case where compensation for value is ordered

[1] In the exercise of the obligee's right of revocation, "date when the obligee becomes aware of the ground for revocation" means the date when the obligee became aware of the requirements for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that he/she conducted a disposal act of the property, and that the juristic act is an act detrimental to the obligee, i.e., a lack of joint security of the claim or a lack of common security of the claim, thereby making it impossible for the obligee to fully satisfy the claim, and further, that the obligor had the intent of harming the obligee.

[2] In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as the cancellation of the registration of transfer of ownership. However, in a case where it is impossible or considerably difficult to return originals, compensation shall be ordered equivalent to the value of the object of the fraudulent act as a performance of the duty to restore the originals, and such compensation shall be ordered to compensate for the value within the scope of establishment of the fraudulent act because it becomes common creditors' joint collateral. As such, in a case where compensation is ordered for the value of the object of the fraudulent act on the ground that a third party in good faith acquired a mortgage after the fraudulent act, it shall be ordered to compensate for the entire value of the real estate which was common creditors' joint collateral at the time of the fraudulent act, and the amount of the secured claim of the mortgage acquired by the third party shall not be deducted from that value, but in order to cancel the fraudulent act and to specify

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code

[1] Supreme Court Decision 2001Da11239 decided Nov. 26, 2002 (Gong2003Sang, 182) Supreme Court Decision 2003Da19435 decided Jul. 11, 2003 (Gong2003Ha, 1715)

Korea Deposit Insurance Corporation (Attorney Lee Jae-dong, Counsel for the plaintiff-appellant)

Kim Nam-nam et al. (Attorney Cho Jong-hee et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2002Na6839 delivered on July 4, 2003

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. On the first ground for appeal

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and that such a juristic act constitutes an act detrimental to the creditor. In other words, it is required to know that the juristic act was thereby insufficient to satisfy the claims completely due to the lack of joint security of the claim or the lack of joint security already in the deficient condition, and that the debtor had an intent to harm (see Supreme Court Decisions 2001Da11239, Nov. 26, 2002; 2003Da19435, Jul. 11, 2003, etc.).

Examining the relevant evidence in light of the records in light of the above legal principles, the court below was just in rejecting the defendants' defense of this safety defense, namely, the non-party 1 credit union prior to the bankruptcy, at least on June 30, 1998, that the donation contract was concluded between the non-party 2 and the defendants, and that the donation contract constituted a fraudulent act detrimental to general creditors, such as the above credit union, by reducing the property of the non-party 2's liability. The lawsuit of this case was filed on December 31, 1999 after one year from the time when the lawsuit of this case was filed on December 31, 199, and it did not contain any errors of law such as misconception of facts against the rules of evidence, incomplete deliberation, or misunderstanding of legal principles

2. On the second ground for appeal

Based on its adopted evidence, the court below acknowledged facts as stated in its reasoning, such as the reasons why the non-party 3, who was appointed to the president of the above credit union as his successor, was exempted from the loan obligation of this case. The exemption constitutes an act of breach of trust since the non-party 3 obtained property benefits from the non-party 2 in violation of his duties and suffered losses from the above credit union, and the non-party 2 also actively participated in the non-party 3's act of breach of trust by the agreement that he strongly demanded the non-party 3 to be exempted from the loan obligation of this case while taking over the president's position, and thus, the non-party 3's act of debt exemption is null and void as it goes against good morals and other social order. In light of the relevant evidence in light of the records, the court below's fact-finding and decision is just, and there is no error

3. On the third ground for appeal

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as the cancellation of the registration of transfer of ownership: Provided, That in a case where it is impossible or considerably difficult to return the original object, compensation shall be ordered equivalent to the value of the object of the fraudulent act as a performance of the duty to restore if it is impossible or considerably difficult, and such compensation shall be ordered to compensate for the value within the limit of the establishment of the fraudulent act because it becomes common creditors' joint collateral. As such, in a case where compensation is ordered to compensate for value on the ground that a third party in good faith acquired a mortgage after a fraudulent act, it shall be ordered to compensate for the entire value of the real estate which became a joint collateral of the general creditors at the time of the fraudulent act, and the amount of the secured claim acquired by the third party shall not be deducted from that value. In a case where a fraudulent act was revoked in the form

The judgment of the court below to the same purport is just, and there is an error in the misapprehension of legal principles as to compensation for value, etc. cannot be accepted.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendants who have lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)