Seoul Central District Court 2011Ga12687 ( October 19, 2011)

It is reasonable to see that the obligor knew that the assignment of claims harms creditors, and that it is presumed that the beneficiary's bad faith is presumed.

It is reasonable to view that the act of transferring his claim for return of unjust enrichment to the defendant under excess of his obligation constitutes a fraudulent act, and that the debtor knew that the act of transferring the claim would prejudice the creditors, such as the plaintiff, etc. in light of the debtor's financial status at the time of transferring the claim

2011Na101089 Revocation, etc. of Fraudulent Act

Korea

The AA

Seoul Central District Court Decision 2011Gahap12687 Decided August 19, 2011

October 17, 2012

October 31, 2012

1. The judgment of the first instance shall be modified as follows:

A. On August 18, 2010, with respect to claims described in subparagraph 1(a) and (b) of the attached list between KimB and the Defendant

The assignment contract concluded shall be revoked.

B. The defendant gives notice to the bankruptcy trustee in the bankruptcy in the CC comprehensive market that the above assignment contract was revoked.

C. The plaintiff's remaining claims are dismissed.

2, upon the claims added in the trial, and

A. The assignment contract concluded on August 18, 2010 between KimB and the Defendant with respect to the claims listed in paragraph 2 of the attached Table shall be revoked.

B. The defendant notifies D, KimE, and KimF that the above assignment contract has been cancelled.

3. 20% of the total costs of litigation shall be borne by the Plaintiff, and 80% by the Defendant respectively.

1. Purport of claim

Each transfer contract concluded on August 18, 2010 between KimB and the defendant with respect to each claim listed in the separate sheet shall be revoked. The defendant shall notify the trustee in bankruptcy in the bankruptcy in the CC comprehensive market of notification to the effect that the transfer contract for the claim listed in paragraph (1) of the separate sheet is revoked, and that the transfer contract for the claim listed in paragraph (2) of the separate sheet was revoked to the corporation D, KimE, and KimF (the plaintiff sought only cancellation of the transfer contract for the claim listed in paragraph (1) of the separate sheet at the first instance trial, and added a claim for cancellation of the transfer contract for the claim listed in paragraph (2) of the separate sheet at the trial

2. Purport of appeal

The decision of the first instance is revoked and the plaintiff's claim is dismissed.

1. Whether a subsequent appeal is lawful;

In the absence of special circumstances, the original copy of the complaint and the judgment were served by service by public notice, and the defendant was unaware of the service of the judgment without negligence, and in this case, the defendant was unable to observe the peremptory period due to a cause not attributable to him, and thus, "after the cause has ceased" means not only the time when the party or legal representative was simply aware of the private theory, but also the time when the defendant knew of the private theory delivered by service by public notice. In ordinary cases, barring any other special circumstances, it should be deemed that the party or legal representative was aware of the fact that the judgment was served by public notice only when the party or legal representative was inspected the records of the case or when the original copy of the judgment was received by public notice (see, e.g., Supreme Court Decision 200Meu87, Sept. 5, 200), and the record of the first instance court was followed by the defendant's remaining delivery of the original copy by service by public notice and the defendant's remaining copy of the judgment within 10th of Aug. 19, 201201.

2. Basic facts

A. Plaintiff’s claim against KimB

At the time of the filing of the instant lawsuit against KimB, the Plaintiff had a total of KRW 000 as follows.

B. Claims against D, etc. by KimB Co., Ltd.

1) 우리금융QQQ유동화전문 유한회사는 김BB와 주식회사 DD， II견직 주식회사， 김EE， 김FF， 이LL， 한국JJ 주식회사， 김KK， 김MM， 김NN에 대하여 서울지방법원 97가단261400호 및 항소심인 서울고등법원 2002나51724호 사건에 따른 판결금 채권을 가지고 있었다.

2) On August 26, 2004, the above limited liability company transferred 00 won of principal and interest equivalent thereto (as stated in attached Table 2, and hereinafter referred to as 'the bonds of this case') to the PPP mutual savings company, among the above judgment bonds, and KimB transferred 'the bonds of this case' on August 31, 2004, the PP mutual savings acquired the above bonds from the operation.

(c) Claims against the IntegratedCC Co., Ltd. (CCB, etc.)

According to the Busan District Court Decision 2007Guhap18464, and with respect to the CC comprehensive market (hereinafter referred to as "CC comprehensive market 1"), from March 10, 2007 to March 7, 2007, the KimB, KimE, and Kim NN had a claim for unjust enrichment of KRW 000 won per month in total, including KRW 000 won per month, and KRW 000 per month, and KRW 00 per month in KimK, and KRW 000 per month in total, including KRW 000 per month, and KRW 00 per month in case of KimK, and KRW 1 in case of KimN.

(d) Order to draw up KimB and assignment of claims;

1) On June 2010, KimB issued a seizure and collection order with respect to each of the claims described in paragraphs 1-b (b) through (d) of this case against the Seoul Central Market (U.S. District Court 2010TT 11512, Seoul Western District Court 2010TW 2010TT 9807, Seoul Eastern District Court 2010TW 2010TT 9807, and Seoul East Eastern District Court 2010TW 9807) with respect to each of the claims described in paragraph 2 of this case.

2) The KimB transferred to the Defendant on August 18, 2010, and (i) the claims described in paragraphs (a) through (d) the assigned execution clause among the claims listed in each of the instant paragraph 1, and notified the transfer to theCC Comprehensive Market on September 7, 2010, and (ii) the transfer of the instant claim 2, and (iii) the transfer of the instant claim to D D and KimE, and KimF on September 7, 2010.

[Reasons for Recognition] The respective entrys in the non-speed facts, Gap evidence 1, 2, 3, 6, and 7, and evidence 3, 5, 21, and 22 (including natural disasters, and hereinafter the same shall apply), and the whole purport of the arguments.

3. Summary of the plaintiff's assertion

A. KimB, on August 18, 2010, transferred each of the instant Claim No. 1 to the Defendant in a debt excess situation, which should be revoked as a fraudulent act, and the Defendant is obliged to notify the Defendant that the said credit assignment contract has been revoked in the CCTV comprehensive market.

B. In addition, in the trial on August 18, 2010, KimB has a duty to notify the Defendant that the instant claim was transferred to the Defendant in excess of the debt, and that this should be revoked as a fraudulent act, and that the Defendant has a duty to notify DD and KimE, and KimF that the said assignment contract was revoked.

4. Determination

A. As to the main defense

First, the defendant asserts that the claim added in the trial of the court is unlawful because it is not recognized as identical to the existing claim. The purport of the lawsuit is to achieve the rational resolution of the dispute between the parties who are requested as a lawsuit and to ensure the economy of the lawsuit at the same time. Thus, the modification of the purport of the claim merely differs in the same living facts or in the dispute over the economic interests of the unification, and there is no change in the basis of the claim (see, e.g., Supreme Court Decision 87Meu25, Jul. 7, 1987). According to the above facts, the plaintiff sought revocation that the transfer of the claim of the first in the trial of the court of the first instance constitutes a fraudulent act, and the transfer of the claim of the second in the court of the first instance, which has become the title of the above claim, constitutes a fraudulent act. Even though the subject of revocation is different, the claim of the second in the second in the judgment of the court of the first instance is not accepted, and the claim of the defendant in the judgment of the first instance is not consistent with the original claim.

B. As to the merits

1) Whether KimB’s insolvency is insolvent

가) 앞서 채용한 증거와 갑 제5호증의 기재에 변론 전체의 취지를 종합하면， 김QQ는 위 각 채권양도행위 당시， 적극재산으로 이 사건 제1의 가 항 및 제2항 기재 각 채권 외에는 별다른 재산이 없었던 반면에， 소극재산으로는 000원이 넘는 이 사건 조세채무 외에도 파산자 나라QQQQ 주식회사의 파산관재인인 예금보험공사에 대한 000원 및 이에 대한 지연손해금 채무를 부담하고 있었으므로 무자력 상태에 있었다고 할 것이다.

B) As to this, the Defendant, and GB, at the time of the above assignment, claimed that the seller's claim for ownership transfer registration of real estate equivalent to KRW 000,00,000, and that the deceased KimR's claim for the heir, the amount of claim for ownership payment of KRW 000,000 against the SSS Korea, and the amount of claim for ownership payment of KRW 000,000 against the JJ corporation, and the amount of claim equivalent to KRW 00,000 against DD of the J corporation, are not in excess of the obligation. Considering the above facts, KimB had been holding several parcels of land, including KRW 68 and 14, and the entire arguments were not in excess of the obligation, and it is difficult to view that the defendant's claim for ownership transfer registration of KRW 100,000,000,000,000,000,000,000,000,000,000,00.

2) Whether the act of transferring each of the instant claims No. 1 constitutes a fraudulent act

It is reasonable to view that KimB was aware that the act of transferring the claim for return of unjust enrichment by the self-help in excess of the debt constitutes a fraudulent act, and that KimB was aware that the assignment of the claim would prejudice the creditors such as the plaintiff, etc. in light of the status of KimB at the time of the assignment of the claim, and the relationship between KimBB and the defendant.

B) Transfer of claims described in paragraphs (b) through (d) of this case

As seen earlier, this part of the claim is not the original KimB's claim, and KimB received a seizure and collection order against it, and even if it was subject to a seizure and collection order against the monetary claim, it is nothing more than the realization of the realization disposition in the compulsory execution procedure by granting to the execution creditor the right to collect the debtor's claim against the third debtor in the compulsory execution procedure, and the claim against the third debtor is not transferred or reverted to the execution creditor, and such collection right does not directly dispose of it and realize it (see Supreme Court Decision 96Da54300 delivered on March 14, 1997). Accordingly, KimB acquires only the collection right on this part, and it does not belong to the responsibility property of KimB by entering into a contract by KimB to dispose of it to the defendant.

3) Whether the act of transferring claim No. 2 of this case constitutes a fraudulent act

A) It is reasonable to view that KimB transferred his claim for return of unjust enrichment in excess of his obligation constitutes a fraudulent act, and that KimB knew that the assignment of claim would prejudice the creditors such as the plaintiff, etc. in light of the status of KimB at the time of the assignment of claim, the relationship between KimB and the defendant, and that the defendant's bad faith is presumed to be the beneficiary.

B) On August 31, 204, the Defendant agreed not to exercise the above claims against the 20BK, and against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims, and against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims, and against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims, and against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims, and against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims against the 20-year transfer of the claims, including Kim J and 8.

4) Sub-committee

Thus, with respect to the claims listed in the attached list 1(a) and (2) between KimB and the defendant, each assignment contract concluded on August 18, 2010 between the defendant must be cancelled as a fraudulent act, and 3) and the defendant has a duty to notify the trustee in bankruptcy in the bankruptcy in the CC comprehensive market as to the claims listed in paragraph 1(a) and the claims described in paragraph 2 to the effect that each of the claims assignment contract has been cancelled as to the claims described in paragraph 1(a).

5. Conclusion

If so, the plaintiff's claim concerning the first claim of this case is reasonable within the above recognition scope, and the other claim shall be dismissed as without merit, and the second claim for the second claim added in the trial shall be accepted as reasonable. However, since the judgment of the court of first instance which accepted all the claims concerning the first claim of this case is unfair, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the first instance court as above, and accepting the plaintiff's additional claim in the trial.