[1] The burden of proving the good faith of the beneficiary in a lawsuit seeking revocation of fraudulent act (=beneficiary) and the standard of determining whether the beneficiary is eligible

[2] When determining whether a legal act by an agent is a fraudulent act, a person who becomes the basis for determining whether a beneficiary or subsequent purchaser is maliciously a beneficiary (=agent)

[1] Article 406 (1) of the Civil Code, Article 288 of the Civil Procedure Act / [2] Articles 116 and 406 (1) of the Civil Code

[1] Supreme Court Decision 2007Da74621 Decided July 10, 2008 (Gong2006Da5710 Decided April 14, 2006) Supreme Court Decision 2006Da60466 Decided July 22, 2010 / [2] Supreme Court Decision 2006Da22661 Decided September 8, 2006

(Attorney Lee Han-soo, Counsel for defendant-appellant)

Defendant (Attorney Go Young-chul, Counsel for defendant-appellant)

Daegu District Court Decision 2012Na62125 Decided June 5, 2013

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

We examine the grounds of appeal.

1. Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is liable to prove his/her good faith in order to be exempted from his/her liability. In this case, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account various circumstances such as the relationship between the debtor and the beneficiary, the circumstances leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, the existence of objective materials supporting the act of disposal, and the circumstances after the act of disposal, etc. (see Supreme Court Decision 2007Da74621, Jul. 10, 2008). Furthermore, in order to recognize that the beneficiary was bona fide at the time of the fraudulent act, objective and acceptable evidence should be supported, and it shall not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act based on only a statement made by the debtor or a statement made only by a third party (see Supreme Court Decision 2006Da562670, Apr. 14, 2006).

2. According to the reasoning of the lower judgment, the lower court presumed that Nonparty 1’s intent was recognized in light of the following: (a) the Plaintiff entered into the instant transfer contract with Nonparty 1 on June 2, 201, when Nonparty 1 had a claim for reimbursement for the total amount of the subrogated amount, etc. under the credit guarantee agreement, and for the delayed payment thereof; (b) the Defendant, the beneficiary, as long as Nonparty 1, who was in excess of his/her obligation, has a preferential payment right, was transferred to the Defendant, constitutes a fraudulent act, barring special circumstances; and (c) Nonparty 1 entered into the instant transfer contract on June 2, 2011, which was six days after the date of the occurrence of the credit guarantee accident under the status of excess of his/her obligation, and completed the additional registration for the transfer of the entire amount of the collateral security interest due to the transfer of the credit under the name of the Defendant.

However, with respect to the defendant's good faith, the court below held that the defendant and the non-party 1 did not know at all prior to the conclusion of the transfer contract of this case, and that the fact that the defendant and the non-party 1 are generally liable for debt is undermining the social credibility of the person, and thus, they make a detailed statement of such fact to other persons who do not have any special relationship, such as the nearest relative. Thus, the defendant did not know in advance of the financial status of the non-party 1 who did not have any special transactional relationship, barring any special circumstance. In light of the fact that there is no objective evidence suggesting that the defendant was aware of the financial status of the non-party 1 in this case, the defendant did not know that the act constitutes a fraudulent act that reduces the joint security of the non-party 1's other creditors at the time of entering into the transfer contract of this case. Thus, the court rejected

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

(1) The court below did not directly deal with the non-party 2 and the non-party 1, and there was no transaction relationship between the defendant and the non-party 1, and thus, it could not be seen that the non-party 2 and the defendant had known the financial status of the non-party 1 in advance. This is merely a drilling, and it is insufficient to recognize the defendant's good faith. In light of the record, there is no objective and objective evidence, etc. that can be acknowledged that the defendant acted in good faith at the time of the transfer contract of this case.

Rather, the following facts revealed by the lower court. ① Nonparty 2, who was aware of the fact that Nonparty 1’s claim for construction of collateral security (hereinafter “government-owned construction”) was transferred to Nonparty 2 by Nonparty 1, i.e., Nonparty 2, who was the representative director, and was awarded a contract for the construction of collateral security (hereinafter “CF”) with Nonparty 1, who was the representative director, but was unable to pay the construction cost to Nonparty 2, because the construction cost was not paid from the CF., the Defendant’s claim for construction of collateral security (hereinafter “CF”) was transferred to Nonparty 1, 200,000,000 won, on the ground that Nonparty 1 and Nonparty 2, who was the Defendant’s claim for the transfer of collateral security (hereinafter “Defendant 1, 200,000,000 won, were transferred to Nonparty 1, 200,000 won, and the Defendant received a favorable judgment on June 9, 2011.

(2) On the other hand, in determining whether a legal act by an agent is a fraudulent act, the existence of bad faith to a beneficiary or a subsequent purchaser's fraudulent act shall be determined on the basis of an agent (see Supreme Court Decision 2006Da22661, Sept. 8, 2006). In light of the following: (a) the process leading up to the conclusion of the instant transfer contract; (b) the public construction; and (c) the agreement between the non-party 1 and the defendant (No. 12-1) and the transfer contract between the non-party 1 and the defendant (No. 13-2), it is highly probable that the non-party 2 entered into the instant transfer contract on behalf of the defendant; and (d) the defendant's bad faith is determined on the basis of the standard for the non-party 2.

(3) Nevertheless, the lower court rejected the Plaintiff’s claim by accepting the Defendant’s assertion that is a bona fide beneficiary solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the good faith of the beneficiary in revocation of fraudulent act, or by failing to exhaust all necessary deliberations. The Plaintiff

4. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court 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 Park Poe-young (Presiding Justice)