In a case where a notarial deed is prepared and executed to the effect that an existing obligation for which the debtor in insolvent has already become due, whether an agreement between the creditor and the debtor, which caused the preparation of notarial deed, constitutes a fraudulent act (affirmative)

In cases where an insolvent debtor prepares a notarial deed stating the purport of accepting compulsory execution with respect to the existing debt for the purpose of having a specific creditor with respect to the existing debt repaid through compulsory execution by receiving a seizure and collection order for the claim held by the debtor, and the creditor obtains a seizure and collection order for the claim of the debtor, the agreement between the creditor and the debtor, which caused the preparation of notarial deed, constitutes a so-called repayment contract for the existing debt, which is a separate contract for the performance of the existing debt, and thus constitutes a fraudulent act by impairing the interests of other general creditors.

Article 406(1) of the Civil Act

Plaintiff

Defendant (Attorney Song Young-chul et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2008Na2866 Decided April 24, 2009

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The gist of this part of the grounds of appeal is that it was found that Nonparty 1 violated the rules of evidence to recognize the fact that Nonparty 1 bears the obligation against the defendant as stated in the judgment below.

However, the recognition of facts, and the selection and evaluation of evidence, which are conducted on the premise thereof, belong to the exclusive authority of the fact-finding court unless it goes beyond the bounds of the principle of free evaluation of evidence. In this case where the court below's fact-finding cannot be found to have come beyond the above limit, the above appeal is merely to criticize matters belonging to the exclusive authority of the court below.

2. Regarding ground of appeal No. 2

In cases where an insolvent debtor prepares a notarial deed stating the purport of accepting compulsory execution with respect to the existing debt for the purpose of having a specific creditor with respect to the existing debt repaid through compulsory execution by receiving a seizure and collection order for the claim held by the debtor, and the creditor obtains a seizure and collection order for the claim of the debtor, the agreement between the creditor and the debtor, which caused the preparation of notarial deed, constitutes a so-called repayment contract for the existing debt, which is a separate contract for the performance of the existing debt, and thus constitutes a fraudulent act by impairing the interests of other general creditors.

According to the records, in May 207, Nonparty 1, who was insolvent, notified that his deposit claim against the National Bank of Korea (hereinafter “National Bank”), which is its sole property, was provisionally seized by contact with the Defendant who is the lending creditor. Accordingly, the Defendant requested Nonparty 1 to prepare a notarial deed in order to obtain repayment of his deposit claim from the above deposit claim, and Nonparty 1 consented thereto. On May 14, 2007, it is evident that the above notarial deed was issued by the Defendant on the 6th day of the above 16th day of the notarial deed and the 6th day of the 3th day of the execution, and the 6th day of the 3th day of the notarial deed as to the above 10th day of the 1st day of the 16th day of the 207th day of the 1st day of the 206th day of the notarial deed, and the 1st day of the 6th day of the above 1st day of the 20th day of the 3th day of the above 1st day of the collection order.

If the facts are the same, Nonparty 1 prepared and executed each of the notarial deeds in this case for the purpose of having the Defendant repay the Defendant’s loan claims by taking the form of compulsory execution against the above deposit claim, and accordingly, the seizure and collection order in this case was executed. Accordingly, according to the legal principles as seen earlier, Nonparty 1 and the Defendant’s above debt repayment contract constitutes a fraudulent act subject to creditor revocation.

Nevertheless, the court below erred by misapprehending the legal principles as to fraudulent act subject to creditor revocation, which affected the conclusion of the judgment, on the grounds stated in its reasoning. The ground of appeal No. 2 that points out this error is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)