[1] Whether division of property following the divorce may be divided into the nature of payment for compensation for mental damage (defensive material) (affirmative), and the requirements for the division of property to be subject to the obligee’s right of revocation as a fraudulent act and the scope of revocation

[2] The nature of the division of property agreement premised on the divorce between husband and wife during the marriage

[3] The case holding that where the sole property is donated as the materials for divorce, such donation may be deemed as a divorce payment including the nature of division of property following divorce

[1] The division of property in a divorce shall contribute to the maintenance of the other party's livelihood at the same time after the division is liquidated and distributing the common property of the married couple, but the division may be divided into benefits to compensate for mental damage (deficiencies) caused by the divorce by the act of the split-off. In determining the amount and method of division of property, considering the amount of the property achieved through mutual cooperation between the parties and other circumstances is obvious under Article 839-2 (2) of the Civil Act. Thus, even if the split-off becomes insolvent, the amount and method of division may be determined including the amount of the debt already borne by the split-off and the amount of the joint property, even if the split-off becomes insolvent, and even if the division-off becomes insolvent and reduces the joint security of the general creditor by the split-off, such division-off may not be deemed to go against the purport of Article 839-2 (2) of the Civil Act, and there are no special circumstances to recognize the amount and method of the creditor's right of revocation as a fraudulent act.

[2] The agreement on division of property refers to a consultation between the parties who already completed a divorce as to the division of property, which has been achieved through cooperation between both parties during the marriage, or between the parties who have not yet been divorced. In a case where the parties who have not yet been divorced agree to divorce by agreement on the division of property on the premise of such agreement, the agreement takes effect in a case where a divorce is made by agreement as agreed upon by the parties after the agreement.

[3] The case holding that where the sole property is donated as the materials for divorce, such donation may be deemed as a divorce benefit including the nature of division of property following divorce

[1] Articles 406 and 839-2 of the Civil Act / [2] Articles 105, 147, and 839-2 of the Civil Act / [3] Article 839-2 of the Civil Act

[1] Supreme Court Decision 9Da6180 delivered on July 28, 2000 (Gong2000Ha, 1940 delivered on July 28, 200) Supreme Court Decision 200Da25569 Delivered on September 29, 200 (Gong2000Ha, 2207), Supreme Court Decision 200Da63516 delivered on February 9, 200 (Gong2001Sang, 6355) / [2] Supreme Court Decision 95Da23156 delivered on October 12, 195 (Gong195Ha, 3735), Supreme Court Decision 200Da3839 delivered on October 24, 200 (Gong195Ha, 3735)

Industrial Bank of Korea (Attorney Kim Jong-il, Counsel for defendant-appellee)

Defendant

Seoul High Court Decision 2000Na 10279 delivered on September 26, 2000

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

We examine the grounds of appeal.

1. The court below held on September 2, 1997 that the plaintiff and the joint defendant 1 corporation of the first instance court (hereinafter the joint defendant 1 of the first instance court) concluded a loan limit transaction agreement with US$ 300,000,000 for the loan extended to September 22, 1998, and that the joint defendant 2 of the first instance court jointly and severally guaranteed 360,000 US dollars for all the obligations owed by the plaintiff 1 of the above agreement, and thus, the plaintiff was unable to repay the imported goods price liability guaranteed by the plaintiff under the above agreement, and thus, the plaintiff was not entitled to consolation money for the first instance court's total 160,409,815 won from May 13, 198 to July 7, 1998, which was the only legal relation between the plaintiff 2 of the first instance court and the joint defendant 1 of this case's 19th court's 19th 2nd 1981.

2. However, we cannot accept the judgment of the court below for the following reasons.

In divorce, division of property shall contribute to the maintenance of the other party’s livelihood at the time of the liquidation and distribution of the actual common property that the couple had in the marriage. However, division of property may be divided to the extent of the nature as payment to compensate for mental damage (deficiencies) caused by divorce by the act of division. In determining the amount and method of division of property, it is obvious that division of property should take into account the amount of property achieved through cooperation between the parties concerned and other circumstances under Article 839-2(2) of the Civil Act. Thus, even if the division of property is insolvent, the amount and method of division, including the amount of debt to be borne by the divided party and the degree of contribution to the formation of common property, may be determined, and even if the division of property becomes insolvent and reduces joint security against the general creditor, such division of property may not be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and the amount and method of division of property shall be limited to 200,000 old property subject to revocation 70.

In addition, the agreement on division of property refers to a consultation between the parties who already completed a divorce as to the division of property, which has been achieved through cooperation between both parties during marriage, or between the parties who have not yet been divorced. In a case where the parties who have not yet divorced on the premise of the agreement on divorce by agreement on the division of property under the premise of such agreement, the agreement takes effect in a case where a divorce is made by agreement as agreed upon by the parties after the consultation (see Supreme Court Decision 9Da33458, Oct. 24, 200).

According to the records, the co-defendant 2 of the first instance court completed a marriage report with the defendant on February 4, 1983, and was married as a husband and wife, and among them, they were the non-party (the non-party on December 8, 1989). However, the co-defendant 2 of the first instance court left the real estate of this case out of the real estate of this case and the real estate of this case, which was his residence under the name of consolation money, etc. on December 16, 1998, became bankrupt due to family disagument such as neglect of the family and assaulting the defendant, etc., and made the registration of transfer of ownership on the ground of the above donation on December 17, 1998, and completed the registration of transfer of ownership on January 6, 199; thereafter, the co-defendant 2 of the first instance court and the defendant on January 2, 199, and the co-defendant 2 of the first instance court shall leave the real estate of this case and have a resident registration on 57-284.

In light of the above circumstances, the Defendant’s donation of the instant real estate by Co-Defendant 2 of the first instance trial to the extent that it is not a simple property juristic act, but a divorce benefit containing the nature of division of property following divorce. Therefore, the lower court should consider whether there are special circumstances to recognize the division of property as the disposal of property made by the actual property, and the scope of revocation as fraudulent act should be limited to the extent that it exceeds the reasonable extent, even in cases where special circumstances are recognized.

Nevertheless, the court below erred by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles as to the division of property and the nature and scope of the creditor's right of revocation due to divorce, which affected the conclusion of the judgment, where the court below did not examine the above circumstances and concluded that the act of Defendant 2 of the first instance court's co-defendant 2 donated the real estate in this case to the defendant constitutes a fraudulent act. The grounds for appeal assigning

3. 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.

Justices Seo-sung (Presiding Justice)