[1] In a case where the creditor files a lawsuit seeking revocation of a fraudulent act against the act causing provisional registration within the exclusion period, whether the lawsuit seeking revocation of a fraudulent act against the act causing the principal registration is legitimate even if the lawsuit seeking revocation of the fraudulent act was filed after the exclusion period for the act causing the principal registration expired (affirmative with qualification)

[2] Where a third-party obligor disposes of his/her property to another person with the knowledge that it would prejudice the State after the State attached the delinquent’s claim due to the disposition on default, whether the State’s claim for revocation of fraudulent act can be rejected solely on the ground that the delinquent taxpayer consented to the disposition on default (negative)

[1] Unless the grounds for provisional registration are clearly different from the legal act that is the grounds for provisional registration and the legal act that is the grounds for principal registration, the initial date of the exclusion period for claims, such as the cancellation of a fraudulent act against the acts causing provisional registration and principal registration, is the time when the act of causing provisional registration is known to be a fraudulent act. If the creditor files a lawsuit to revoke the act of causing provisional registration within one year from the time when the act of causing provisional registration becomes known to be fraudulent, the claim for cancellation of the act of causing provisional registration

[2] Where a third-party obligor disposes of his/her property to a third-party obligor with the knowledge that it would prejudice the State, a claim for revocation of a fraudulent act by the State cannot be rejected solely on the ground that the third-party obligor consented to the disposal of the third-party obligor, where the third-party obligor disposes of his/her property to a third-party obligor

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code, Articles 41 and 42 of the National Tax Collection Act, Article 44 (1) of the Enforcement Decree of the National Tax Collection Act

[1] Supreme Court Decision 91Da14079 delivered on November 8, 1991 (Gong1992, 73) Supreme Court Decision 92Da1008 delivered on January 26, 1993 (Gong1993Sang, 852), Supreme Court Decision 96Da26329 delivered on November 8, 196 (Gong196Ha, 3545) / [2] Supreme Court Decision 82Da889 delivered on March 8, 1983 (Gong1983, 650), Supreme Court Decision 86Meu2476 delivered on April 12, 198 (Gong198, 825) and Supreme Court Decision 87Da29399 delivered on January 17, 198, 199 (Gong198Da1963989 delivered on September 29, 196)

Korea

Defendant

Gwangju High Court Decision 2003Na5329 delivered on April 23, 2004

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

The grounds of appeal are examined.

1. The part concerning the revocation, etc. of the principal registration

A. In a case where a provisional registration has been completed for preserving a claim for transfer of ownership in the name of the beneficiary with respect to a real estate owned by the debtor, the principal registration of transfer of ownership based on such provisional registration has been completed, unless the juristic act which is the cause for the provisional registration and the juristic act which is the cause for the principal registration are clearly different, the legal act which is the cause for the principal registration is not the object of revocation. Thus, the exclusion period of a lawsuit for revocation of a fraudulent act shall not be deemed to run from the date when the principal registration was completed regardless of when the legal act which is the cause for the provisional registration was completed (see, e.g., Supreme Court Decisions 91Da14079, Nov. 8, 1991; 92Da1008, Jan. 26, 1993).

Therefore, the initial date of the exclusion period of a claim, such as provisional registration and revocation of a fraudulent act on the ground of principal registration, is the time when the act of causing provisional registration is known to be a fraudulent act. If a creditor files a lawsuit of revocation against an act of causing provisional registration within one year from the time when the creditor becomes aware that the act of causing provisional registration was a fraudulent act, the claim for revocation of the act of causing provisional registration is legitimate even after

B. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the following facts: the defendant completed provisional registration of each transfer right claim based on the pre-sale on September 25, 2001 with respect to each real estate owned by friendly Development Co., Ltd. (hereinafter referred to as friendly Development only in the following), and completed the principal registration based on the provisional registration on November 1, 2001 and April 16, 2002 with respect to some of the real estate; and the plaintiff filed a lawsuit to revoke the fraudulent act as to the act of causing each provisional registration on June 3, 2002, and filed a request for revocation of each fraudulent act as to the act of causing each of the above provisional registration on May 14, 2003.

In light of the above legal principles in light of the above facts, the court below should have deliberated whether the exclusion period of the claim for revocation against the above provisional registration is complied with, and should have determined that the exclusion period of the claim for revocation against the act of causing the principal registration is complied with as long as the exclusion period is observed. Nevertheless, the court below determined that the part of the claim for revocation, etc. against the act of causing the principal registration was unlawful on the ground that only the act of causing the principal registration was removed, and that the revocation claim was made after one year from the date on which he became aware of it. In so doing, the court below erred by misapprehending the legal principles on the exclusion

2. Part concerning claims, such as revocation of acts causing provisional registration;

A. Where a claim is seized in accordance with the procedure for disposition on default under the National Tax Collection Act and a notification of attachment is given to a debtor of the seized claim, the debtor of the seized claim is unable to repay his/her obligation to the creditor, and is obligated to perform it to the head of the tax office at the time the due date arrives (see, e.g., Supreme Court Decision 86Meu2476, Apr. 12, 1988), and the creditor who is the delinquent cannot exercise the attached claim (see, e.g., Supreme Court Decision 82Meu889, Mar. 8, 1983). In light of such legal principles, it is not permissible to reject a claim for revocation of fraudulent act by the State solely on the ground that the third debtor disposes of his/her property to the third debtor with the knowledge that the third debtor would be detrimental to the State after the State seized his/her claim against the delinquent debtor due to disposition on default.

B. In full view of the evidence duly admitted, the lower court rejected the Plaintiff’s claim seeking revocation, etc. of the act of cause on the ground that the Plaintiff’s attachment was conducted with the consent of comprehensive loan construction for a limited liability company which is a delinquent taxpayer, on the following grounds: (a) the Plaintiff’s attachment notification was served; and (b) the Defendant’s provisional registration was completed with respect to the real estate as seen above; and (c) the Plaintiff’s attachment was

However, in light of the above legal principles, since the court below cannot reject this part of the claim with only the above circumstances, it should have judged the propriety of the claim after further deliberation as to whether the act of causing the above provisional registration constitutes a fraudulent act. Therefore, the court below erred in the misapprehension of legal principles as to the requirements for revocation of fraudulent act and the incomplete deliberation.

In addition, according to the records, the plaintiff seized each real estate in the judgment of September 28, 2001, and related reasons, the plaintiff asserted that the friendly development had made a tax payment guarantee on May 17, 2000 on part of the national taxes in arrears against the plaintiff of the comprehensive loan construction company (see the plaintiff's preparatory document on August 1, 2002). As the preserved right of the plaintiff's claim for revocation of the fraudulent act in this case, the court below needs to review whether the plaintiff's claim for revocation was made as the creditor of revocation by clearly exercising his/her right of explanation as to whether the plaintiff's claim for revocation was made as the creditor of revocation under the above tax payment guarantee.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, 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 Lee Hong-hoon (Presiding Justice)