Main Issues
[1] Whether a debtor in excess of his/her obligation is a fraudulent act to transfer the only property to a specific creditor as payment in kind (affirmative)
[2] Whether the transfer of the right to occupy and use public waters is subject to creditor's right of revocation (affirmative)
[3] In a case where the time limit attached to a license, which is an administrative act, is unreasonably short of the nature of the permitted business, whether such time limit can be deemed as the duration of the license, not the duration of the license itself (affirmative)
Summary of Judgment
[1] In a case where the obligor’s property is insufficient to fully repay the obligor’s obligation, if the obligor provided the obligee’s sole property to a certain obligee as payment in kind, then the obligee obtains satisfaction of the obligee’s claim prior to any other obligee, while the obligee is placed in a more unfavorable position than the previous obligee as the joint security has been reduced within the scope of the scope of the joint security, and thus, the obligor’s act of offering another obligee’s sole property to payment in kind among the obligees constitutes a fraudulent act in relation to other obligees, barring any special circumstances.
[2] According to the provisions of Article 11(1) and (2) of the Public Waters Management Act and Article 19(1) of the Enforcement Decree of the same Act, even if the right to occupy and use public waters is a right under public law, since the person who obtained permission can freely transfer the right to occupy and use public waters without permission from the competent authority, the person has independent property value, and it is not a right prohibited from seizure under law, and thus, compulsory execution may be conducted according to the execution method of "other property rights" under Article 251 of the Civil Execution Act, and it is subject to creditor's right to revoke if it is transferred
[3] In general, where the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be lost upon the lapse of that period, but where the time period attached to the permission is unreasonably short due to the nature of the permitted business, it may be interpreted that the time period is not the duration of the permission itself, but the amendment of the condition shall be taken into account upon the arrival of that time period.
[Reference Provisions]
[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code, Article 251 of the Civil Execution Act, Article 11 of the Public Waters Management Act, Article 19 (1) of the Enforcement Decree of the Public Waters Management Act / [3] Article 1 of the Administrative Litigation Act / [
Reference Cases
[1] Supreme Court Decision 88Da23186 delivered on September 12, 1989 (Gong1989, 1462), Supreme Court Decision 90Da27198 delivered on November 23, 1990 (Gong1991, 178), Supreme Court Decision 96Da23207 delivered on October 29, 1996 (Gong1996Ha, 3530), Supreme Court Decision 97Da57320 delivered on May 12, 199 (Gong198Sang, 1615), Supreme Court Decision 9Da29916 delivered on November 12, 199 (Gong199, 2490) / [3] Supreme Court Decision 90Da194599 delivered on April 14, 195 (Gong199, 2490)
Plaintiff (Applicant for Acceptance), Appellee
Uniform Industry (Attorney Transferred-type et al., Counsel for the defendant-appellant)
Defendant, Appellant
Doyang Development Co., Ltd. (former Trade Name: Dayang Construction Co., Ltd.)
Applicant for Acceptance
Daeung Shipping Co., Ltd. and one other
Judgment of the lower court
Daejeon High Court Decision 2002Na6706 delivered on December 17, 2003
Text
The appeal is dismissed. The costs of appeal are assessed against the defendant.
Reasons
1. In a case where the obligor’s property is insufficient to fully repay the obligor’s obligation, if the obligor provided the obligee’s sole property to a certain obligee as payment in kind, then the obligee obtains satisfaction of the obligee’s claim prior to any other obligee, while the obligee is placed in a more unfavorable position than the previous obligee as the joint security has been reduced within the scope, and thus, the obligor’s act of offering another obligee’s sole property to a certain obligee as payment in kind constitutes a fraudulent act in relation to the other obligees, barring any special circumstances (see, e.g., Supreme Court Decisions 90Meu27198, Nov. 23, 1990; 96Da23207, Oct. 29, 196).
After finding the facts as stated in its reasoning based on its adopted evidence, the court below held that the act of the non-party 1, who actually operated the old sub-company, which is the sole property of the old sub-business, and the right to occupy and use the public waters of this case (hereinafter referred to as the "right to permit of this case"), and the act of transferring all of the public waters of this case to the defendant constitutes a fraudulent act committed by the plaintiff, who is the creditor, in light of the property status of the old sub-business, the relationship between the non-party 1 and the non-party 2, who is the representative director of the defendant, unless there are special circumstances. In light of the records, the court below's fact-finding and decision are justified, and there is no error of law by misconceptioning the facts
2. Article 11 (1) of the Public Waters Management Act provides that "the rights and obligations arising from the occupancy or use permit may be transferred or succeeded to by the method prescribed by Presidential Decree." Paragraph (2) provides that "in case where the rights and obligations are transferred or succeeded to pursuant to the provisions of paragraph (1), a person who has transferred or succeeded to such rights and obligations shall be considered as a person who has obtained the permission under this Act." Article 19 (1) of the Enforcement Decree of the same Act provides that "the rights and obligations arising from the occupancy or use permit under the provisions of Article 11 (1) of the Public Waters Management Act shall be succeeded to by the transferee, the heir, the corporation surviving the merger or the corporation established by the merger." According to the above provisions, even if the right to occupancy or use and use is a right under the Public Waters Management Act, a person who has obtained the permission may freely transfer the right without permission of the competent government agency and have independent property value, and in case where the right is not subject to the legal seizure of the right under the Civil Execution Act."
In the same purport, the court below is just in holding that the act of transferring the permission of this case and its incidental facilities becomes subject to the creditor's right of revocation, and there is no error in the misapprehension of legal principles as to the subject of the creditor's right of revocation, as
3. In general, where the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be lost due to the lapse of that period (see, e.g., Supreme Court en banc Decision 94Nu14148, Oct. 17, 1995; Supreme Court Decision 9Du5153, Jun. 25, 199); however, where the period attached to the permission is unreasonably short due to the nature of the permitted business, such period shall be deemed not the period of the permission itself, but the period of the permission itself, and the amendment of the conditions shall be considered to have arrived at the expiration of that period (see, e.g., Supreme Court Decisions 4293Nu42, Feb. 22, 1962; 94Nu1866, Nov. 10, 195).
According to the records, the previous 2.3 years of permission was obtained twice from Seosan for the purpose of collecting sand and selling business. 1. The previous 2.3 years of permission was 2.0 square meters in Seosan, 80 square meters in size; 109.6 meters in retaining walls; 2.3 years of permission for the installation of 20 years of loading and unloading facilities from 20.0 square meters in size to 20.2 years of installation of 2.3 years of installation; 2 years of installation of 207 of installation of 207 of 1997; 3 years of installation of 2.07 of 2.07 of 207 of 1998 of 1997; 2.3 years of permission for installation of 20 years of 20,000 square meters in size; 117 meters in retaining walls; 117 meters in width; 2.3 years of permission for installation of 3 years of 20,000 square meters in size of 2.
Therefore, it cannot be deemed that the right to permit of this case was extinguished because the initial period of permission of this case arrived at. Thus, the defendant's ground of appeal on the premise that the right to permit of this case has already been extinguished cannot be accepted.
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Shin-chul (Presiding Justice)