[1] Whether the issuance of a promissory note constitutes a fraudulent act in a case where the debtor bears new obligations by issuing a promissory note, and where the debtor's obligation exceeds his/her obligation due to the burden of such obligation, or the excess of his/her obligation has become worse and worse (affirmative)

[2] The base point and scope of calculation of the preserved claim in the obligee's right of revocation

[3] In a case where the issuance of a promissory note constitutes a fraudulent act, and the beneficiary who was issued a promissory note came to enforce a compulsory execution by obtaining a title of debt by obtaining a notarial deed as to a promissory note, etc., but the compulsory execution procedure is not completed, whether the return or delivery of the title of debt can be recognized (negative)

[1] Where a promissory note is issued for the payment of existing debts, the issuance of such promissory note does not lead to a fraudulent act because the debtor's obligations are not newly increased due to the issuance of such promissory note, unless there are special circumstances. However, in cases where the debtor bears new obligations by the issuance of a promissory note, if the debtor is in excess of his/her obligations or his/her obligations are worse and worse due to the burden of obligations, the issuance of such promissory note constitutes a fraudulent act as it is prejudicial to other creditors.

[2] The creditor may exercise the creditor's right of revocation within the scope of the amount calculated by adding interest or delay damages to his principal of his/her claim after the fraudulent act was conducted to the conclusion of fact-finding proceedings, but he/she cannot exercise the right of revocation in excess

[3] In the event that the issuance of a promissory note constitutes a fraudulent act, when the beneficiary who was issued the promissory note becomes subject to compulsory execution by obtaining a title of debt by obtaining a notarial deed as to the promissory note, the creditor may revoke the issuance of the promissory note, which is a fraudulent act, and seek the return of the money for realization or collection or the full amount of the money for collection or the transfer of the full amount of the claim, which the beneficiary acquired as a result of compulsory execution, as a result of restitution. However, in cases where the compulsory execution procedure is not yet completed, it cannot be said that the beneficiary obtained any specific profits other than the acquisition of the claim, and it cannot be said that the acquisition of the title of debt itself constitutes the income subject to restitution by the return

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act

[1] Supreme Court Decision 2002Da27903 decided Aug. 27, 2002 (Gong2002Ha, 2299) / [2] Supreme Court Decision 2000Da66416 decided Sep. 4, 2001 (Gong2001Ha, 2162) Supreme Court Decision 2001Da64547 decided Dec. 11, 2001 (Gong2002Sang, 275) Supreme Court Decision 200Da63912 decided Apr. 12, 2002 (Gong2002Sang, 1089)

Korea Central Film Co., Ltd. and six others (Attorneys Lee Chang-sik et al., Counsel for the plaintiff-appellant)

Cowsan Co., Ltd. (Seng General Law Firm, Attorneys Kang Hong-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na41345 delivered on October 20, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The judgment of the court below

A. The court below found the following facts based on the evidence in its holding.

(1) Duco Co., Ltd. (hereinafter referred to as 'non-party company') was in a state where its liabilities on the balance sheet on December 31, 1997 were 4,126,542,00 won, assets were 4,108,07,000 won, and the total amount of its capital was locked. Since January 1, 1998, in addition to recording the deficit of its management each month, 127,476,361 won, Plaintiff 127,476,361 won, Plaintiff 127,493,400 won for Plaintiff Luxembourg Co., Ltd., Ltd., and 34,87,500 won for Plaintiff Luxembourg Co., Ltd., Ltd., and 165,132,940, and 165,281,275,271,297,275,271,7500 won for the Plaintiff Co., Ltd., Ltd.

(2) The Defendant, as a major shareholder of the non-party company, held against the non-party company a claim for rent of KRW 78 million per month from July 28, 1997 to January 31, 1998, and a claim for rent of KRW 1.8 million per month from the next day to January 31, 1998.

(3) However, on March 26, 1998, the non-party company and the defendant provided real estate owned by the defendant as a collateral for the transaction of goods of the non-party company, and set up a collateral for the maximum debt amount of KRW 1 billion, the non-party company agreed to issue a bill for the delivery at sight of one billion won per face value to the defendant and notarized it.

(4) Accordingly, on March 31, 1998, the non-party company and its representative director issued a promissory note with a face value of one billion won at sight and made a notarial deed to enable immediate execution. On April 6, 1998, with respect to each real estate stated in the attached list of the judgment below, the defendant issued 24 companies, including part of the plaintiffs, the debtor company, the non-party company, and the maximum debt amount of the mortgage amount of one billion won.

(5) At the time, the market price of each of the above real estate owned by the Defendant was KRW 1,001,358,400, while the real estate listed in the attached list No. 1 of the lower judgment was set by priority over the maximum debt amount of KRW 1,510,00,000, as stated in the attached list No. 1 of the lower judgment, and the real estate listed in the attached list

(6) Based on the above promissory note No. 23, May 23, 1998, the Defendant received the attachment and assignment order for the non-party company's claim for the amount of KRW 1 billion against the non-party company's distribution of El branch and ELCex Co., Ltd., and the order was served on the third debtor on the 27th of the same month.

(7) However, with respect to the above attachment and assignment order, the above attachment and assignment order was not yet finalized on the ground that the plaintiffs et al. filed a complaint or reappeal and received a decision to suspend compulsory execution.

B. Based on the facts found, the court below affirmed the judgment of the court of first instance ordering the issuance of the above promissory note as a fraudulent act and the delivery of the authentic copy of the above promissory note as a fraudulent act, on the ground that the non-party company, which was not in excess of the debt, issued the promissory note in this case and received the entire seizure by the defendant, was not different from the transfer of the purchase price claim, which is the entire claim, to the defendant, in lieu of the repayment of the debt to the defendant, knowing that the non-party company would harm other creditors, and rejected all the defendant's defenses, such as the plaintiffs' full repayment of the debt to the non-party company, the defendant was acting in good faith, or the compulsory execution procedure based on the promissory note in this case was terminated.

2. Judgment on the grounds of appeal

A. Examining the evidence cited by the judgment below in comparison with the records, the court below's fact-finding is acceptable, and there is no violation of the rules of evidence against the rules of evidence.

At the time of the issuance of the Promissory Notes, the plaintiffs had a claim against the non-party company for the purchase price of goods, and there is no evidence to deem that the claim was repaid until the closing of argument in the court below, the plaintiffs can seek the revocation of the fraudulent act by the non-party company against the defendant who is the beneficiary. Therefore, the judgment below to the same purport is just, and there is no error of law by misunderstanding

B. Since an assignment order becomes effective upon confirmation (Articles 563(7) and 564 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), the court below is just in holding that the defendant's seizure and assignment order based on the promissory note No. 563(7) of this case was not finalized by appeal and reappeal against the plaintiffs, etc., and that the compulsory execution procedure has not been completed, and there is no error in the misapprehension of legal principles as to the validity of an assignment order.

The Supreme Court Order 84G36 dated September 28, 1984 cited in the ground of appeal is related to other matters than this case, and thus it is not appropriate to invoke this case.

C. Where a promissory note is issued for the payment of existing debts, the issuance of such promissory note does not lead to fraudulent acts, as it does not lead to the increase in the debtor's obligations due to the issuance of such promissory note, barring special circumstances. However, in cases where the debtor bears new obligations due to the issuance of a promissory note, if the debtor's debts are in excess of his/her obligations or the excess of his/her obligations has become worse due to the burden of obligations, the issuance of such promissory note constitutes fraudulent acts as is prejudicial to other creditors

In this case, the defendant's claim against the non-party company at the time of the issuance of the above promissory note is a claim of KRW 78 million for the lease deposit of the building and KRW 28 million for 8 months for each month through 1.8 million for each month, and a claim for indemnity to be acquired in the future as a result of providing the real estate of this case. Among them, even though there was no uncertainty as to whether the future claim for indemnity was incurred or not, since the non-party company issued and delivered the promissory note of this case, it cannot be said that the issuance of the above promissory note is for the payment of the existing obligation of KRW 1 billion for the above lease deposit, and it shall not be deemed as a new act of debt, and since the above issuance of the said promissorysory note deepens the status of excess of the obligation of the non-party company, it shall be deemed as a fraudulent act as it increases the non-party company's small property. It is justifiable and there is no error in the misapprehension of legal principles as to fraudulent act.

D. The obligee may exercise the obligee’s right of revocation within the scope of the amount obtained by adding interest or delay damages to his principal of his claim after the fraudulent act was conducted at a trial court, but may not exercise the right of revocation in excess of the amount of the claim (see Supreme Court Decision 2000Da66416, Sept. 4, 2001).

In addition, where a debtor's issuance of a promissory note constitutes a fraudulent act, when the beneficiary who is issued such note has obtained compulsory execution under the name of the debtor due to the receipt of authentic deeds as to the promissory note, etc., the creditor may revoke the issuance of the promissory note, and seek the return of the money for realization or collection or the full amount of the money for collection or the transfer of the entire amount of the claim, which the beneficiary obtained as a result of compulsory execution, as a result of the revocation of the fraudulent act, but in cases where the compulsory execution procedure is not yet completed, it cannot be said that the beneficiary obtained specific profits other than the acquisition of the claim, and it cannot be said that the acquisition of the title of the debt itself constitutes the income subject to restitution by the return or delivery of the name

In this case, the plaintiffs' total amount of claims against the non-party company is less than 477,950,415 won below the par value of the Promissory Notes, and despite that the defendant's seizure and assignment order based on the above Promissory Notes did not yet become final and conclusive, the court below revoked the whole act of issuing the Promissory Notes in excess of the amount of claims against the plaintiffs, and ordered the delivery of the original copy of the above Promissory Notes as the restoration. Thus, the court below erred by misapprehending the legal principles on the scope of revocation of fraudulent act and restitution to its original state, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Therefore, without examining the Defendant’s remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-in (Presiding Justice)