(영문) 대법원 2019.4.11.선고 2018다283261 판결

Of the judgment of the court below, the part concerning the portion concerning the portion regarding the real estate 1/4 of the attached Table 7 shall be reversed, and the judgment of the court of first instance concerning that portion shall be revoked,

The remaining appeals are dismissed.

All costs of the lawsuit shall be borne by the defendant.

Reasons

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In a case where a creditor filed a lawsuit against a beneficiary seeking revocation or restitution of a fraudulent act on the ground of a debtor’s fraudulent act, and the said fraudulent act is rescinded or terminated during the course of the lawsuit, and the creditor’s return to the debtor by means of punishing the property for which the revocation of the fraudulent act is sought, barring any special circumstances, the creditor’s revocation lawsuit is already implemented and the benefit of the protection of rights is no longer effective by the lawsuit (see Supreme Court en banc Decision 2012Da952, May 21, 2015). Furthermore, even if the parties did not assert the legal requirements, such as the benefit of protection of rights, etc., as the matter of ex officio investigation, the court shall investigate and determine it ex officio, and if the legal requirements are not satisfied or any defect is cured after the closing of arguments at the fact-finding court (see Supreme Court Decision 2016Da23198, Sept. 28, 2018).

B. The record reveals the following facts: (a) the Plaintiff filed the instant lawsuit against B, the beneficiary, seeking revocation of and restitution to the original state regarding the 1/4 share of each of the real estate listed in the separate sheet; and (b) the registration of ownership transfer was completed on August 22, 2018, which is the debtor, the debtor, on August 22, 2018, after the closing of argument in the lower court.

Examining these facts in light of the legal principles as seen earlier, there is no legal interest in seeking restitution of the above 1/4 shares, which have already been returned to C against B, and thus, the part corresponding to the above shares in the lawsuit in this case is unlawful and cannot be maintained as it is. The ground of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

According to the records, the Supreme Court rendered the decision to commence individual rehabilitation procedure as of January 10, 2019, Daegu District Court 2018 210265, which was pending in the final appeal of this case against C.

Therefore, we cannot accept the allegation in the grounds of appeal purporting that the judgment of the court below did not suspend litigation procedures and erred in rendering the judgment, as at the time of the closing of argument in the court below.

3. As to the remaining grounds of appeal

The lower court deemed that the agreement on the division of inherited property for each real estate listed in the separate sheet between C and the Defendant constituted a fraudulent act, and thus revoked the agreement on the division of inherited property and ordered the reinstatement thereof.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on, or omitting judgment on, responsible property in a creditor revocation lawsuit, or by misapprehending the legal principles on whether agreement on the division of inherited property becomes subject to revocation of fraudulent act, by misapprehending the limitation period, by misapprehending the legal principles

4. Therefore, the part of the judgment of the court below regarding the real estate 1/4 shares in the annexed list No. 7 is reversed, and this part is sufficient for the Supreme Court to directly render a judgment, and the judgment of the court of first instance as to that part is revoked pursuant to Article 437 of the Civil Procedure Act. The remaining appeals are dismissed, and the total costs of the lawsuit are borne by the defendant. It is so decided as per Disposition by the assent of all participating Justices