Whether the alteration of a preserved claim constitutes a change in a lawsuit seeking revocation of a fraudulent act (negative)

The addition or exchange of a claim that a creditor intends to preserve while claiming the revocation of a fraudulent act is merely a change in the argument about the method of attack that makes it reasonable to revoke the fraudulent act, and it does not change the subject matter of the lawsuit or the claim itself. Therefore, it cannot be said that the lawsuit is changed.

Article 262 of the Civil Procedure Act, Article 406 of the Civil Act

Supreme Court Decision 64Da564 Delivered on November 24, 1964

Seoul Guarantee Insurance Co., Ltd. (Law Firm Han & Han, Attorneys Lee Man-soo)

Defendant

Seoul District Court Decision 2000Na23791 Delivered on January 31, 2001

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

The addition or exchange of a claim that a creditor intends to preserve while claiming the revocation of a fraudulent act is merely a change in the argument about the method of attack that makes the revocation of the fraudulent act reasonable, and it does not change the subject matter of the lawsuit or the claim itself (see Supreme Court Decision 64Da564 delivered on November 24, 1964).

In this case, on August 9, 1999, the plaintiff filed a lawsuit seeking the cancellation of the gift contract and the cancellation of the ownership transfer registration in the decision that was concluded between the non-party 2 and the defendant who is its wife by taking out KRW 5,089,753 as the joint guarantor of the small loan guarantee insurance contract concluded by the plaintiff with the non-party 1 as of September 6, 1995 as the right to be preserved for revocation of the fraudulent act, but the court below decided that the plaintiff's legal brief as of September 5, 200 against the non-party 2 pursuant to the indemnity insurance contract for the small loan concluded with the non-party 2 and the non-party 2 as the right to be preserved for revocation of the fraudulent act. The court below held that the plaintiff's claim for reimbursement 18,013,680, which the plaintiff had against the non-party 2 under the indemnity insurance contract for the small loan which was concluded on August 26, 1994, was unlawful since the lawsuit for revocation of the fraudulent act was filed within one year.

Such determination by the court below is contrary to the legal principles as seen earlier, and constitutes an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles on the alteration of litigation.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)