[1] Where a bankrupt who is a creditor was appointed by a trustee in bankruptcy without knowledge of the cause for revocation of a fraudulent act, a person who becomes the basis for determining whether the creditor was aware of the fraudulent act (=the trustee in bankruptcy)

[2] The case holding that where the Korea Deposit Insurance Corporation was appointed as the bankruptcy trustee of the bankrupt Party A after it received the provisional disposition prohibiting the disposal of the debtor Eul as the preserved right and was also appointed as the bankruptcy trustee of the bankrupt Party B who is another creditor, the Korea Deposit Insurance Corporation cannot be viewed as having known that the act of Eul's donation was a fraudulent act even to Byung by receiving the provisional disposition ordering the above provisional disposition

[1] Whether a debtor was aware of a fraudulent act in a lawsuit for revocation of a fraudulent act based on the bankrupt's claim shall be determined on the basis of the bankrupt. However, if the bankrupt was appointed by a trustee in bankruptcy without knowledge of the cause of revocation of the fraudulent act, then whether the creditor under Article 406 (2) of the Civil Code was aware of the debtor's fraudulent act should be determined on the basis of the bankruptcy trustee.

[2] The case holding that in case where the Korea Deposit Insurance Corporation was appointed as the bankruptcy trustee of the bankrupt Party A after it received the provisional disposition prohibiting the disposal of the debtor Eul as the preserved right and was also appointed as the bankruptcy trustee of the bankrupt Party B who is another creditor, the Korea Deposit Insurance Corporation cannot be viewed as having known that the act of Eul's donation was a fraudulent act even to Byung by receiving the provisional disposition ordering the above provisional disposition

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

Korea Deposit Insurance Corporation (Attorney Cho Dong-dong, Counsel for the plaintiff-appellant)

Defendant (Attorney Han-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2005Na109037 decided July 19, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the judgment on the defense prior to the merits

A. In light of the records, the court below is just in holding that the testimony of Non-Party 1 (the 18th 18th 18th 1 of the judgment of the court below is obvious to be the misunderstandings of Non-Party 1) by the witness of Non-Party 9 and Non-Party 1 (the 19th 18th 18th 19 of the judgment of the court below) is insufficient to recognize that a new comprehensive financial company for the bankrupt (hereinafter "new money") was aware of the existence of the gift contract of this case around August 198, and there is no other evidence to acknowledge

B. Whether a debtor's fraudulent act was known in a lawsuit for revocation of a fraudulent act based on the bankrupt's claim should be determined on the basis of the bankrupt. However, if the bankrupt was appointed by a trustee in bankruptcy without knowledge of the cause of revocation of the fraudulent act, then whether the creditor under Article 406 (2) of the Civil Code was aware of the debtor's fraudulent act should be determined on the basis of the bankruptcy trustee.

The judgment of the court below is erroneous to determine whether the debtor's fraudulent act should be known on the basis of the bankrupt regardless of whether it was before or after the declaration of bankruptcy.

Meanwhile, Article 406(2) of the Civil Act provides that a lawsuit for revocation by a creditor shall be brought within one year from the date when the creditor becomes aware of the cause for revocation and within five years from the date when the legal act was committed. The above period falls under the period for filing a lawsuit and thus, the court shall ex officio investigate ex officio and dismiss the lawsuit for revocation by a creditor which was brought after the lapse of the period as illegal. Therefore, further, it is examined as to whether the plaintiff had already been aware of the fraudulent act of Nonparty

According to the records, on November 12, 2001, the plaintiff was appointed as the trustee in bankruptcy on the right to revoke the fraudulent act against the non-party 2 as the right to the revocation of the fraudulent act. The plaintiff was appointed as the trustee in bankruptcy on December 18, 2001. However, the above provisional disposition which the plaintiff received as the trustee in bankruptcy from the dong Bank was merely a measure taken on behalf of the dong Bank for the dong Bank, and it differs from the content and factual relations of the preserved right against the non-party 2. Thus, even though the plaintiff's Korea Deposit Insurance Corporation, as the trustee in bankruptcy of the dong Bank, was aware that the non-party 2 donated the real estate of this case to the defendant as the non-party 2, as the trustee in bankruptcy, was not aware that the non-party 2 was a fraudulent act against the dong Bank, barring any special circumstance, it cannot be viewed that the plaintiff was not aware that the non-party 2 was a new one-year creditor 2, and that the non-party 2 was a new bankrupt.

Therefore, the court below is justified in its conclusion that it rejected the defendant's argument that the lawsuit of this case was unlawful as the limitation period expired, and thus, the ground of appeal on this part cannot be accepted.

2. As to the judgment on the merits

According to the records, it is reasonable that the court below determined that the establishment registration of a collateral security on May 25, 1998, which was made by the mortgagee of the right to collateral security on the real estate of this case by Nonparty 3, was null and void by a false competitive agreement, and that the amount of the collateral security is not deducted from the value of the real estate of this case. Thus, the ground of appeal on this part is without merit

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)