[1] The meaning of "the date when the creditor, which is the starting point of the exclusion period, becomes aware of the cause of revocation" in the exercise of creditor's right of revocation, and whether it can be presumed that the creditor was aware of the objective fact of the loss (negative)

[2] The standard for determining whether a debtor's act of disposal of several properties constitutes a tort

[3] The case holding that even though the debtor continued to dispose of several properties, it cannot be judged whether the debtor's several acts of disposal of properties constitute a single act in light of overall circumstances

[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 became aware of the fact that the obligor committed a fraudulent act while knowing that the obligee would prejudice the obligee. If the obligee knew of the ground for revocation, it is insufficient to say that the obligee merely knew of the fact that the obligor conducted a disposal act of the property, and it is necessary to find out the fact that the obligor was aware of the existence of a specific fraudulent act, and further, that the obligor was aware of the objective fact of the fraudulent act, and it cannot be presumed that the obligee was aware

[2] In order to become a fraudulent act, the debtor's act of disposing of property shall cause a decrease in the debtor's whole property and in short of the joint security of claims due to such act. In other words, the debtor's passive property shall be more than the active property. In case where the debtor continuously disposes of several properties, barring any special circumstance that the act should be considered as one act, it shall not be determined in a series of acts collectively, but shall be determined in accordance with whether each act causes insolvency.

[3] The case holding that the obligor's multiple acts of disposal of property cannot be deemed as one act in light of the following: (a) even though the obligor has committed several acts of disposal of property in succession, the other party is different and at a reasonable interval of time; (b) there are no data that the other party does not have any special relationship with the obligor and the opportunity to dispose of property is identical or related; and (c) the obligee asserts that only the act of disposal to a specific

[1] Article 406 (2) of the Civil Code / [2] Article 406 of the Civil Code / [3] Article 406 of the Civil Code

[1] Supreme Court Decision 200Da15265 decided Jun. 13, 2000 (Gong2000Ha, 1652), Supreme Court Decision 2000Da3262 decided Sep. 29, 200 (Gong2000Ha, 2199), Supreme Court Decision 62Da634 decided Nov. 15, 196 (Gong10-4, 229) (Gong10-4, 2007) decided Apr. 26, 201 (Gong200Ha, 219) / [2] Supreme Court Decision 2000Da3262 decided Sept. 29, 200 (Gong200Ha, 219)

Korea

Defendant (Law Firm Hun, Attorneys Gyeong-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na44859 delivered on April 9, 2002

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

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Nonparty 1 received legacy from Nonparty 2, who omitted, the real estate listed in the [Attachment 1] List of the lower judgment (hereinafter “the instant real estate”) and the real estate listed in the [Attachment 2] List of the lower judgment (hereinafter “second real estate”) and completed the registration of ownership transfer as to the instant real estate No. 1 and 2 between September 197 and October 197.

B. On February 1, 1998, Nonparty 1 entered into a sales contract with the Defendant to sell the instant real estate KRW 210 million to the Defendant (hereinafter “instant sales contract”) and agreed on February 1, 1998, for the payment of the price, KRW 84 million and KRW 76 million as to the secured debt of the right to collateral security as to the instant real estate 1, as to the payment of the price, to the Defendant accept in lieu of the payment of the purchase price and pay in cash the remainder of KRW 50 million. On February 23, 1998, Nonparty 1 completed the registration of ownership transfer on the instant real estate 1 in the future of the Defendant.

C. In addition, on February 1, 1998, Nonparty 1 sold to Nonparty 3 the real estate No. 1 among the instant second real estate to Nonparty 4 on February 26, 1998, to Nonparty 5 on August 13, 1998, to Nonparty 5 on August 13, 1998, to Nonparty 6 on March 7, 198, the real estate No. 2 through 7, 9, 10, and 11 among the instant second real estate to Nonparty 7 on March 11, 1998, and sold all the remaining real estate except for the real estate No. 12 and 13 among the instant second real estate to Nonparty 7 on March 11, 1998.

D. On September 25, 1995, Nonparty 2 died. The head of the Dong-gu District Tax Office, the Plaintiff’s head of the Dong-gu District Tax Office, around June 20, 1999, issued a disposition imposing inheritance tax of KRW 529,226,142, which added KRW 176,408,713 to KRW 352,817,429 to Nonparty 1.

2. We examine the first ground for appeal.

In the exercise of the right of revocation, the "date when the creditor becomes aware of the cause for the revocation" means the date when the creditor becomes aware of the requirement for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware of the fact that the creditor would prejudice the creditor. In order to say that the creditor was aware of the cause for revocation, the mere fact that the creditor was aware of the act of disposal of the property is insufficient, and it is necessary to know the existence of a specific fraudulent act and that the debtor was aware of the intention of deception, and it cannot be presumed that the creditor was aware of the objective fact of the occurrence of the fraudulent act and that he was aware of the intention of deception (see Supreme Court Decisions 88Meu26475 delivered on September 12, 1989, 200Da3262 delivered on September 29, 200).

The plaintiff sought revocation on the ground that the sales contract of this case was a fraudulent act, and sought the implementation of the procedure for the registration of ownership transfer with respect to the real estate No. 1 in this case to restore the original state to its original state. The defendant rejected the defendant's defense on the ground that, even though the plaintiff knew on June 20, 199 that the sales contract of this case was concluded through the perusal of the registry, etc. while investigating the tax investigation for the imposition of inheritance tax, the plaintiff knew that he had the intention to deception to the non-party No. 1 on December 8, 200, which is the exclusion period, the lawsuit of this case was filed on December 200.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the fact-finding and judgment of the court below is just, and there is no error of law such as violation of the empirical rule and misapprehension of legal principles as to the limitation period of revocation of fraudulent act as alleged in the ground of appeal. The defendant'

3. We examine the second ground for appeal.

A. According to the reasoning of the judgment below, the court below found that the non-party 1 was liable for the debt amounting to KRW 832,226,140,00,00,000,000,000 as active property except for the portion of the non-party 1, at the time of the sales contract of this case. However, the non-party 1 was liable for the debt amounting to KRW 529,226,140,00,00,000,000,000,000 for the secured debt amounting to the non-party 2 as to the non-party 1, and determined that the non-party 1’s disposal of the non-party 2,00,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

B. However, the lower court’s determination that deemed the instant sales contract as a fraudulent act is difficult to accept for the following reasons.

In order to become a fraudulent act, the debtor's act of disposing of property shall cause a decrease in the debtor's whole property and in short of the joint security of claims, namely, the debtor's passive property shall be more than active property. In case where the debtor has conducted several continuous disposal of property, unless there are special circumstances to regard such act as one act as one act, it shall not be judged as a series of acts collectively, but shall be determined as to whether each act causes insolvency (see Supreme Court Decision 2000Da69026, Apr. 27, 2001).

However, according to the facts and records acknowledged by the court below, the disposal of the above real estate by Nonparty 1, including the sales contract of this case, is different from all other parties to the contract of this case, there is a considerable interval of time, and the other party except the defendant, did not appear to have a special relationship with Nonparty 1, and there is no evidence that the other party to the contract of this case was identical or related to the contract of this case, and the plaintiff himself claims that only the sales contract of this case was a fraudulent act among the above disposal acts by Nonparty 1, it is difficult to view the above disposal act of Nonparty 1, including the sales contract of this case, as one act. Meanwhile, according to the facts acknowledged by the court below, even if the real estate of this case was excluded from the real estate of this case at the time of the sales contract of this case, it cannot be deemed that Nonparty 1's active property exceeded the small property and thus, it cannot be deemed that the sales contract of this case was a fraudulent act.

Nevertheless, the judgment of the court below that held the sales contract of this case as a fraudulent act by deeming the disposition of Nonparty 1 including the sales contract of this case as a single act is erroneous in the misapprehension of legal principles as to fraudulent act. The defendant's ground of appeal No. 2 pointing this out is justified.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, 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.

Justices Park Jae- Jae (Presiding Justice)