Plaintiff 1 and one other (Attorney Kim Young-min et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Seosung, Attorneys Park Jong-young, Counsel for the defendant-appellant)

November 21, 2012

Seoul Northern District Court Decision 2011Gadan9546 Decided April 6, 2012

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The selective claim 1: The agreement between the defendant and the non-party not to divide the property of each real estate indicated in the separate sheet between the defendant and the non-party on January 10, 201 shall be revoked only for the share of 1/4 out of each of the above real estate, and the defendant shall implement the registration procedure for transfer of ownership based on the division of property of 1/4 out of each real estate listed in the separate sheet to the non-party on January 10, 201.

2 Selective Claim: The Defendant shall implement the registration procedure for ownership transfer on the ground of termination of title trust as of November 17, 201 with respect to the portion of 1/4 of each real estate listed in the separate sheet to the Nonparty.

2. Purport of appeal

The judgment of the first instance shall be revoked. The same shall apply to the entries in the purport of the claim.

1. Basic facts

The court's explanation on this part is the same as the statement in Paragraph 1 of the judgment of the court of first instance, and therefore, this part is cited by the main text of Article 420 of the Civil Procedure Act

2. Determination as to the first selective claim

A. The plaintiffs' assertion

The agreement between the Nonparty and the Defendant on January 10, 201, regarding the waiver of the claim for the division of property regarding each of the instant real estate upon divorce with the Defendant, is a fraudulent act detrimental to the Plaintiffs, who are creditors, and ought to be revoked within the scope of one-fourth share equivalent to the Nonparty’s claim for division of property.

The Defendant, as a creditor of the Nonparty, is obligated to complete the registration procedure for transfer of ownership of 1/4 shares out of each of the instant real estate to the Nonparty as a property division upon the Plaintiffs’ claim filed by subrogation against the Nonparty

(b)specific review;

(1) Whether the renunciation of the Nonparty’s right to claim division of property is subject to the right to revoke the fraudulent act

The purpose of the right to revoke fraudulent act is to preserve the debtor's responsible property by cancelling fraudulent act between the debtor and the beneficiary. Therefore, in order for the waiver of the right to claim division of property to be subject to the creditor's right to revoke as fraudulent act, the debtor's right to claim division of property must have independent property value, and it should be included in the debtor

The right to claim a division of property has a specific nature of a specific monetary claim or the right to claim a payment through an agreement between the parties or a division of property under the Family Litigation Act. On the other hand, the right to claim a division of property without consultation or a trial remains in the abstract state of “the right of one of the parties to the divorce to claim a division of property against the other party.” The right to claim a division of property, which is in the state of abstract rights, is one exclusive right, where the exercise of such right is left to the free will of the parties.

In order to enforce the right to claim a division of property, the abstract right to claim a division of property should be converted into a specific monetary claim or payment right through consultation or adjudication as seen above. If it is not so, it is possible for the creditor to exercise the right to claim a division of property on behalf of the debtor in order to convert the debtor's abstract right to claim a division of property into a specific right to claim a division of property (the right to claim a division of property under the Family Litigation Act). It is reasonable to view that the right to claim a division of property is a right to

In the instant case, the Nonparty waived the right to claim a division of property that has not been embodied, and thus, restitution in cases where the waiver agreement is revoked upon acceptance of the Plaintiff’s creditor’s revocation lawsuit is an abstract right to claim a division of property at the stage of trial or consultation. As seen above, the above right is not in itself impossible to enforce compulsory execution because its content and scope are not determined, and it cannot be deemed as falling under the Nonparty’s responsible property because the Plaintiff, a creditor,

Therefore, the plaintiffs' assertion that the non-party's right to claim division of property belongs to the non-party's responsible property is without merit.

3. Determination as to the second selective claim

The reason why the court's explanation on this part is the same as that of the judgment of the court of first instance in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

Therefore, all of the plaintiffs' claims of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be deemed to be partially unfair by dismissing the part of the claim for transfer registration of ownership based on division of property, but since it is recognized that the court of first instance has been tried to the extent that it can render a judgment on the merits, it shall not be remanded to the court of first instance. However, in the case of appeal filed only by the plaintiffs, the part of the claim for transfer registration of ownership based on division among the judgment of the court of first instance cannot be revoked and the judgment of dismissal of the plaintiffs cannot be rendered because only the plaintiffs' appeal is dismissed. It is so decided as per Disposition by the assent.

[Attachment]

Judges Lee Jong-ho (Presiding Judge)