The method of evaluating the right to benefit from the trust property included in the debtor's active property in a revocation lawsuit

Article 406(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 200Da69026 delivered on April 27, 2001 (Gong2001Sang, 1244)

Plaintiff 1 and one other (Law Firm Sejong, Attorneys Seo-ho et al., Counsel for the plaintiff-appellant)

Bosco Construction Co., Ltd. (LLC, Kim & Kim LLC, Attorneys Ko Hyun-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na53572 decided October 26, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In a lawsuit seeking revocation of a fraudulent act, the issue of the debtor's insolvency should be determined as at the time of the fraudulent act (see Supreme Court Decision 2000Da69026, Apr. 27, 2001). Thus, in evaluating the right to benefit to the trust property included in the debtor's active property, it shall be assessed by taking into account various circumstances that can be anticipated at the time of the fraudulent act, and it shall not be reflected even if an unexpected circumstance occurred thereafter.

In full view of the adopted evidence, the court below acknowledged the fact that at the time of the promise to sell and purchase the apartment, the fixed construction company (hereinafter “fixed Construction”) entrusted the business site purchased for the implementation of the new construction project to K non-Real Estate Trust Co., Ltd. and held the right as a beneficiary of the trust property, and the appraised value of the right was at least 36,230,949,000, and there was no evidence to prove that the management situation has deteriorated as at the time of the promise to sell and purchase the apartment, or that it is impossible to make profits from the smooth progress of the new construction project, there was no reason to believe that the above right to benefit cannot be seen as a joint bond security because it has no real property value, and thus, it can be easily repaid through compulsory execution, so the appraised value of the above right to benefit should be calculated as the active property of fixed construction.

In light of the above legal principles and the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the method of calculating active property to judge whether an obligor

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)