[1] Whether an act of a debtor's gratuitous transfer of his/her own property to a third party for the purpose of evading compulsory execution constitutes a fraudulent act in relation to other bankruptcy creditors (affirmative), and where a third party collects a claim to acquire by transfer and thereby the debtor pays the money, whether the equivalent amount should be deducted within the scope of restitution or return of value (negative)

[2] Where Gap sought revocation of the issuance of a promissory note against Eul, which is a fraudulent act against Eul, and Eul returned the money collected or the check, which was based on the above promissory note, to Byung who is the debtor Byung, the case affirming the judgment below rejecting Eul's main defense on the ground that although Gap returned it, it cannot be deemed that Eul's property seeking return was returned to Byung due to the revocation of the fraudulent act, it cannot be deemed that Eul's property seeking return was returned to Byung

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

[1] Supreme Court Decision 2012Da211 Decided April 11, 2013 (Gong2013Sang, 847)

S. S. S. Assets Management Loans

KSS Asset Management Loan Co., Ltd.

Ha Young-gu (Law Firm Chungcheong, Attorneys Noh Jae-min et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2012Na6638 decided December 11, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

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

1. Regarding ground of appeal No. 1

The debtor's act of transferring his/her own property to a third party only in fact for the purpose of evading compulsory execution is a fraudulent act in relation to other bankruptcy creditors, and even if the third party collects his/her claim to transfer and pays the money to the debtor, it does not mean that the property that the debtor seeks return by the revocation of the fraudulent act was restored to its original state. Thus, the equivalent amount is not deducted within the scope of restitution or return of value (see Supreme Court Decision 2012Da2111, Apr. 11, 2013).

According to the reasoning of the judgment below, the court below rejected the Defendant’s defense of safety on the ground that there is no evidence to support that the issuance of the Promissory Notes in this case, which is a fraudulent act, was cancelled or terminated, and that even if the Defendant returned the deposited money or the check collected from the Promissory Notes in this case, it cannot be deemed that the creditors, including the Plaintiff, etc., were returned to the white port, even if they were returned to the white port.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and there were no errors in the misapprehension of legal principles as to the interest of a lawsuit seeking revocation of a fraudulent act.

2. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the judgment below, the court below determined that the defendant's right to benefit under the trust contract is excluded from active property because it has no substantial property value.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations, or by failing to

3. Conclusion

Therefore, the appeal is 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 Park Poe-young (Presiding Justice)