Seoul Northern District Court 2011 Gohap6018 ( November 03, 2011)

The starting point of the exclusion period of the fraudulent act claim should be known to the effect that the fraudulent act had the intention of deception.

In order for the creditor, who is the starting point of the exclusion period in the exercise of creditor's right of revocation, to be aware of the cause of revocation, it is not sufficient for the debtor to know that he/she conducted a disposal of property, but to know that he/she had an intention to know the existence of specific fraudulent act and to know that he/she had

2011Na101225 Revocation, etc. of Fraudulent Act

Korea

Park XX

Seoul Northern District Court Decision 2011Gahap6018 Decided November 3, 2011

June 14, 2012

June 28, 2012

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

[Claim]

A donation agreement entered into between the Defendant on March 26, 2008 and the Seoul XX-dong 618-16 large 107.8 square meters and its ground brick structure and brick 62.98 square meters underground room of 7.44 square meters on the land shall be revoked within the limit of KRW 00.0 won. The Defendant shall be revoked to the Plaintiff within the limit of KRW 00.5 percent per annum from the day following the day this judgment became final to the day of complete payment.

【Purpose of Appeal】

The judgment of the first instance is revoked. The judgment dismissing the plaintiff's claim is dismissed.

1. Case summary

In this case, in order to preserve the claim amount of KRW 000 against the defendant against KimA, the debtor, in order to preserve the claim amount of KRW 000 on March 26, 2008, by asserting that the donation contract on real estate stated in the purport that the right of collateral security was established with the defendant on March 26, 2008 constitutes fraudulent act, the plaintiff's right of revocation was partially revoked based on the right of revocation (the part which deducts the claim amount of the right of collateral security out of the real property value) and also sought compensation equivalent to the cancelled value in lieu of the return of the original property because it became impossible for the plaintiff

2. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: 6 pages 6 of the judgment of the court of first instance (see Supreme Court Decision 2004Da54978 delivered on December 7, 2006, 2006, see Supreme Court Decision 2004Da54978 delivered on December 7, 2006). The court added "additional decision of this court" as stated in the reasoning for the judgment of the court of first instance, and thus, cite it as it is in accordance with the main text of Article 420 of the Civil Procedure Act

3. Additional determination by this Court

【Defendant’s Claim】

On July 29, 2009, the defendant asserts that the exclusion period of the creditor's right of revocation should be calculated from that point because, based on the result of inquiry about the debtor KimA on July 29, 2009, KimA became aware not only of the donation of the real estate in this case to the defendant, but also of the general outline of KimA's property

[Judgment]

However, in order for the creditor, who is the starting point of the exclusion period, to be aware of the cause for revocation in the exercise of the creditor's right of revocation, it is not sufficient for the debtor to know the existence of a specific fraudulent act, and further, that the debtor was aware of the existence of a specific fraudulent act. However, if the creditor knew that there was a juristic act detrimental to the creditor from an objective point of view, it can be confirmed that the debtor was aware of the debtor's intention of deception.

In this case, on July 29, 2009, on the basis of the result of inquiry into the debtor KimA on the property, the defendant knew that the real estate in this case was only the real estate owned by KimA because there was no other real estate other than the real estate in this case other than the real estate in this case, but was at least the only real estate, and knew that it was donated to the defendant, and that there was no other stocks or golf membership rights except the financial property in this case. However, the plaintiff could not have known that the real estate in this case, which was donated to the defendant by KimA, constitutes the only property of KimA. Accordingly, it cannot be readily concluded that the plaintiff knew that the real estate in this case constitutes the real estate in this case, which was donated to the defendant by KimA, was legitimate and justifiable after the plaintiff investigated the real estate in this case's deposit or financial property in this case with the defendant in the judgment of KimA, and that the plaintiff's affirmative difference between the total value of the property in this case and the real estate in this case at the time of donation, or that the plaintiff was fully satisfied with the claims.

4. Conclusion

Therefore, the plaintiff's claim is reasonable. The judgment of the court of first instance, which accepted the plaintiff's claim, is just, and the defendant's appeal is dismissed as it is without merit.