Seoul Central District Court 2012Na59496 (Law No. 21, 2013)

"The day on which he becomes aware of the cause of revocation" shall be the day on which he becomes aware of the debtor's intention of prejudice.

"The date when the creditor, who is the starting point of the exclusion period in the exercise of the creditor's right of revocation, becomes aware of the fact that the debtor performed the act of disposal of the property, is insufficient to say that such act is an act detrimental to the creditor, i.e., an act detrimental to the creditor," and i.e., the contents of the judgment]

Article 30 of the National Tax Collection Act

2013Da206542 Revocation of Fraudulent Act

Korea

KimA

Seoul Central District Court Decision 2012Na59496 Decided May 21, 2013

October 11, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Basic facts

According to the reasoning of the judgment below and the records, the plaintiff held 0OB's taxation claim (hereinafter "the taxation claim of this case"). KimB sold the real estate of this case No. 1, May 29, 2010, and the real estate of this case No. 2, June 30, 2010, and KimB owned 493/593 shares (hereinafter "the shares of this case") amongCC real estate of this case. The priority was established for the creditor Han Bank, OOBOOOOOOOOOOOO as the collateral, but the priority was established for the debt amount of this case No. 90, Sep. 8, 2010. The loan data of OB were submitted to the plaintiff as the collateral 10,000 won x 30,000,000 won 1,000 won / 30,000 won / 9,000 won / 9,000 won / 1,000

2. The judgment of the court below

The lower court determined that, in light of the fact that, around September 10, 2010, the Plaintiff was aware of the fact that KimB sold the instant real estate No. 1 and 2 around September 10, 2010, around the time of the establishment of the instant right to collateral security, the total debt of KimB exceeded the property value, and that, if the Plaintiff deducts the maximum debt amount of the instant right to collateral security from the OB won on March 8, 2010, the net asset value of the instant right to collateral security was below the OB won, and that at the time of the establishment of the instant right to collateral security, the Plaintiff appears to have been aware of the transfer of the real estate ownership No. 1 and 2 to a third party, which was around September 10, 2010 when the instant right to collateral security was created, the Plaintiff was deemed to have been aware of the fact that there was a shortage in the joint collateral security of the instant tax claim due to the act of KimB’s disposal. Accordingly, the lawsuit filed after the limitation period for revocation of the instant lawsuit was expired.

3. Judgment of the Supreme Court

“The date when the obligee becomes aware of the cause of revocation in the exercise of obligee’s right to revoke” means the date when the obligee became aware of the fact that the obligor committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, the mere fact that the obligor was aware of the act of disposal of the property is insufficient, that the legal act constitutes an act detrimental to obligee, i.e., a lack of joint security of claims or lack of joint security of claims, and that there was an intention to harm the obligor’s intent to harm the obligor’s obligations (see Supreme Court Decision 2001Da1239, Nov. 26, 2002). In light of the above legal principles, it is difficult to view that the Plaintiff was aware of the fact that the Plaintiff had already disposed of the real property at the time of establishment of the instant right to revoke, and that there was insufficient evidence to view that the Plaintiff was an act of disposal of the remaining property in excess of the value of the instant real property at the time of establishment of the instant right to revoke, and thus, it is difficult to view the Plaintiff’s remaining property value of the Plaintiff’s disposal of the instant real property.

Nevertheless, on the premise that the Plaintiff was aware of the fraudulent act by KimB at the time of the establishment of the instant mortgage, the lower court determined that the instant lawsuit was brought against the exclusion period. In so doing, the lower court erred by misapprehending the legal doctrine on the initial date of the exclusion period in a lawsuit seeking revocation of a fraudulent act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, 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.