[1] In a case where a debtor’s act of reducing liability property causes or deepens the shortage of common security for general creditors, the standard for determining whether a fraudulent act constitutes a fraudulent act, and the standard for determining a fraudulent act in a case where a debtor, who is in a state of excess of liability, transfers other claims that are not the original purpose of the obligation only to some of the creditors

[2] The scope of revocation of a fraudulent act where it is obvious for another creditor to demand a distribution or where the subject matter is indivisible

[1] Article 406 (1) of the Civil Act / [2] Articles 406 (1) and 407 of the Civil Act

[1] Supreme Court Decision 2007Da2718 Decided September 30, 201 (Gong2010Ha, 1967) Supreme Court Decision 201Da28045 Decided October 13, 201 (Gong2011Ha, 2342) Supreme Court Decision 2011Da107818 Decided March 27, 2014 (Gong2014Sang, 925) / [2] Supreme Court Decision 97Da10864 Decided September 9, 197 (Gong197Ha, 3051)

Plaintiff 1 and one other (Law Firm Lee & Lee, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (LLC, Kim & Lee LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 201Na52323 decided May 30, 2013

The part of the lower judgment against the Plaintiff (Appointed Party) regarding the revocation of fraudulent act and restitution claim is reversed, and that part of the case is remanded to the Seoul High Court. The Defendants’ appeal is dismissed in its entirety.

The grounds of appeal are examined.

1. As to the defendants' appeal

The issue of whether an act constitutes a fraudulent act subject to revocation of creditor by causing or deepening the shortage of common security for general creditors by means of an act reducing the debtor's liability property, shall be determined based on whether the act ultimately constitutes an act detrimental to the general creditor, taking into account the following: (a) the proportion of the debtor's entire responsible property among the debtor's entire responsible property; (b) the degree of insolvency; (c) the legitimacy of the economic purpose of the juristic act and its realization means; (d) the reasonableness of the act in question; (e) the degree of perception of the parties to the shortage of common security; and (e) the degree of existence of a collusion between the debtor and the beneficiary; and (e) other circumstances revealed in the act. Unlike the cases where a debtor in excess of his liability transfers claims and other active property to some of the creditors, other than the original purpose of the obligation with respect to the performance of the obligation, may, in principle, constitute a fraudulent act in relation to other creditors; (e) in such a case, if the act cannot be viewed as an act ultimately detrimental to the general creditor in light of the general criteria for judgment as seen above, the establishment of a fraudulent act may be denied (see, etc.

원심은 그 판시와 같은 이유를 들어 이미 채무초과상태에 있던 피고 1이 다단계사업 관련 사기사건 피해자들의 일부로 구성된 피고 주식회사 리브·주식회사 리드앤·주식회사 씨엔·주식회사 리젠·주식회사 챌린·주식회사 리버스의 전국피해자채권단(이하 ‘피고 전국피해자채권단’이라 한다)에게 이 사건 제1차 투자계약의 계약상 지위 및 제2차 투자계약의 해제에 따른 투자금반환채권을 대물변제조로 양도한 것은 일반 채권자들의 공동담보를 부족하게 하는 행위로서 채권자인 원고(선정당사자, 이하 ‘원고’라 한다)들과 선정자들을 해하는 사해행위에 해당하고, 피고 1의 사해의사 또한 인정된다고 판단하였다. 나아가 원심은 그 판시와 같은 사정을 종합하여 이 사건 양도계약이 사해행위가 아니라고 볼만한 특별한 사정이 있다거나, 피고 전국피해자채권단이 이 사건 양도계약으로 인하여 원고들과 선정자들을 해하게 됨을 알지 못하였다고 보기도 어렵다고 판단하였다.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal by the Defendant National Victims' Credit Union, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the scope of fraudulent act

Meanwhile, Defendant 1 filed an appeal on the part against which he lost among the judgment below, but there is no indication in the petition of appeal or the appellate brief on this matter.

2. Regarding the plaintiffs' grounds of appeal

A. On the grounds indicated in its reasoning, the lower court: (a) deemed that the scope of revocation of the instant transfer contract constituting a fraudulent act and restitution thereof does not exceed the amount of claims of the Plaintiffs and designated parties who exercise the right of revocation; (b) concluded that the amount calculated by the ratio of 5% per annum from June 9, 2010 to April 18, 2013, with respect to KRW 11,802,90,314, and KRW 8,225,151,70, which is the sum of damages claims against Defendant 1 of the Plaintiffs and designated parties, the preserved bonds, the lower court revoked the Plaintiff’s obligation to complete restitution of the entire amount of claims for restitution of the instant amount of claims for restitution from June 9, 2010 to April 18, 2013, the date following the delivery of a copy of the instant complaint, which is the date of the closing of argument in the lower judgment; and (c) concluded that the Plaintiff’s obligation to complete restitution of the entire amount of claims to be recovered.

B. However, it is difficult to accept the above measures by the court below for the following reasons.

The scope of revocation of a fraudulent act may seek revocation even beyond the claim amount of the revocation creditor where it is apparent that another creditor will demand a distribution or where special circumstances exist, such as where the subject matter is indivisible (see Supreme Court Decision 97Da10864 delivered on September 9, 197, etc.).

However, according to the facts and records established by the court below, it is confirmed that the amount acquired by Defendant 1 in collusion with the Nonparty, etc. in a criminal case against Defendant 1 was about KRW 2,50 billion, and until January 201, the damage amount of the victims who entrusted Defendant 1’s tort damage recovery to Defendant 1’s National Victims’ Credit Group is about KRW 60,000,000,000,000,000,000 for the total amount of damage of the victims who entrusted Defendant 1’s tort damage recovery. Many creditors received an order of seizure, collection, collection, or seizure as to the claim for profit payment based on the first investment contract of this case and the claim for return of investment money due to the cancellation of the second investment contract of this case. In addition to this case, barring any special circumstance, it is evident that these creditors will demand the revocation of the transfer contract of this case, which goes beyond their claim amount.

Nevertheless, the court below revoked only the transfer contract of this case as to the claim for the refund of investment deposit following the cancellation of the second investment contract of this case within the limit of the amount of claim against Defendant 1, and ordered the restoration to its original state only. In so doing, it erred by misapprehending the legal principles as to the scope of revocation of fraudulent act, thereby affecting the conclusion of the judgment. The plaintiffs' ground of appeal pointing this out has merit

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiffs, the part against the Plaintiffs regarding revocation of fraudulent act and claim for restitution among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Defendants’ appeals are all dismissed. It is so decided as per Disposition by the assent of

[Attachment] List of Appointeds: Omitted

Justices Yang Chang-soo (Presiding Justice)