Requirements for a claim not yet established at the time of a fraudulent act to become a preserved claim of the obligee's right of revocation, and standards for determining whether high probability exists for a claim protected by the obligee's right of revocation.

Article 406(1) of the Civil Act

Supreme Court Decision 2011Da76426 Decided February 23, 2012 (Gong2012Sang, 507) Supreme Court Decision 2010Da43870 Decided January 16, 2013

Korea Credit Guarantee Fund (Law Firm Sejong, Attorneys Ro-won et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others

Jeonju District Court Decision 2017Na2789 Decided November 17, 2017

The part of the judgment of the court below against the defendants is reversed, and that part of the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. The lower court rejected the Plaintiff’s assertion that: (a) on March 14, 2014, the Plaintiff entered into the instant credit guarantee agreement with Gangnam General Construction Co., Ltd. (hereinafter “Gangnam General Construction”); (b) on May 15, 2014, the Plaintiff acquired the right to advance reimbursement for Gangnam General Construction in accordance with the instant credit guarantee agreement; (c) on June 25, 2014, the Plaintiff paid the principal and interest of Gangnam General Construction to the said bank; (d) on the ground that the Gangnam General Construction entered into a sales contract on April 22, 2013 with Defendant 1 and the lower judgment on the real estate, the sales contract on May 30, 2014; (b) concluded on March 7, 2014 with the National Bank; and (c) concluded on March 2014 with the Plaintiff’s respective claims for reimbursement of KRW 30 billion on each of the instant real estate as to each of the instant claims for reimbursement of KRW 500 million on each of the instant real estate.

2. However, the lower court’s determination is difficult to accept for the following reasons.

(1) In principle, a claim protected by the obligee’s right of revocation ought to be created before a fraudulent act is performed. However, there is a high probability that the claim has already been established at the time of the fraudulent act, and that the claim would be established in the near future based on such legal relationship. In fact, where a claim has been created in the near future due to its realization, such claim may also become a preserved claim. In this context, a high probability as to the establishment of a claim may be objectively determined by comprehensively taking into account various circumstances, such as the content of the basic legal relationship between the obligee and the obligor, the obligor’s property condition and change thereof, the frequency of claims arising under such circumstance, the degree of public awareness, and time and interval between the obligor’s property disposal and the occurrence of the claim (see Supreme Court Decisions 2011Da76426, Feb. 23, 2012; 2010Da43870, Jan. 16, 2013).

(2) According to the reasoning of the lower judgment and the record, through a preparatory document dated February 2, 2016, the Plaintiff concluded the instant credit guarantee agreement with Gangnam General Construction on March 16, 2009 for the purpose of extending the term of guarantee of the existing credit guarantee agreement. As such, the instant credit guarantee agreement was concluded for the purpose of extending the term of guarantee of the existing credit guarantee agreement, and accordingly, submitted relevant evidence by asserting that there had already been the legal relationship which serves as the basis for establishing a claim for indemnity at the time of each purchase and sale reservation and each sales contract, and made the same assertion through a preparatory document dated March 31, 2017. Thus, the lower court should have deliberated on whether the instant credit guarantee agreement and each of the existing credit guarantee agreements are identical, and whether there was a legal relationship that serves as the basis for establishing a claim for indemnity at the time of each purchase and sale reservation or each of the above existing credit guarantee agreements, and should have determined whether a claim for indemnity in the future can be subject to creditor's right of revocation.

Nevertheless, without examining the aforementioned circumstances, the lower court rejected the Plaintiff’s claim on the grounds stated in its reasoning, thereby misapprehending the legal doctrine on the preserved claim by obligee, thereby failing to exhaust all necessary deliberations.

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)