Acquisition of property by means of a claim for division of property by divorce shall be subject to revocation by obligee as a fraudulent act, and the burden of proof shall be borne by obligee (=creditor)

In light of the fact that the division of property following divorce is a liquidation of common property formed through mutual cooperation between the parties during marriage, it is a system that has the nature of support for the other party. While the debtor who is in excess of his/her obligation is divorced and transfers a certain property to his/her spouse as a result of the reduction of joint security against general creditors, barring any special circumstance to recognize that the division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, it shall not be revoked as a fraudulent act, but it shall not be deemed as a legitimate division of property, but it shall be limited to the part that exceeds a considerable degree, and even in this case, there is a burden of proving that the property division is excessive beyond a considerable degree.

Articles 406 and 839-2 of the Civil Act

Supreme Court Decision 84Meu68 Decided July 24, 1984 (Gong1984, 1478), Supreme Court Decision 90Meu24762 Decided November 23, 1990 (Gong1991, 176), Supreme Court Decision 2000Da14101 Decided July 28, 200 (Gong200Ha, 1940)

Korea Technology Finance Corporation (Attorney Lee Jae-soo, Counsel for defendant)

Defendant

Daejeon District Court Decision 99Na8931 delivered on April 6, 2000

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment of the court of first instance, the court below rejected the allegation that the defendant had held the apartment of this case under title trust against the non-party who was the husband. In light of the records, the court below's fact-finding and decision are justified, and there is no error of law by misunderstanding the facts against the rules of evidence.

The grounds of appeal pointing out this point are not acceptable.

2. On the second ground for appeal

In addition, the court below recognized that the defendant was in excess of the debt at the time of the transfer of the apartment of this case from the non-party while divorced from the non-party. In light of the records, the court below's fact-finding and decision are justified, and it cannot be viewed that the judgment affected the conclusion of the judgment by failing to properly conduct

The grounds of appeal pointing out this point are not acceptable.

3. On the third ground for appeal

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance and recognized the facts as stated in its reasoning, and revoked the entire donation contract on the ground that the non-party was insolvent by donation of the apartment of this case, which is the only property of the non-party, to the defendant who was the wife of the apartment of this case, due to a divorce between the non-party and the non-party, before the

However, in light of the fact that the division of property following divorce is a liquidation of the common property formed through mutual cooperation between the parties in the marriage, it is not necessary to revoke it as a fraudulent act, unless there are special circumstances to recognize that the division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, even though the debtor in excess of a debt is divorced and transfers a certain property to his/her spouse as a result of the reduction of joint security against the general creditor. However, it shall not be revoked as a fraudulent act, unless there are special circumstances to recognize that the division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, it shall not be deemed a legitimate division of property. However, even in this case, the scope of revocation shall be limited to the part exceeding a considerable degree, and there is a burden to prove that it is excessive property division beyond a considerable degree (see Supreme Court Decision 200Da14101, Jul. 28, 200).

According to the records, the defendant completed a report of marriage with the non-party on June 17, 1982 and completed a divorce by agreement on March 5, 1998, and the non-party donated the apartment of this case to the defendant under the name of consolation money, etc. as a result of divorce. Thus, the defendant's acquisition of the real estate of this case shall be deemed as a division of property according to divorce, and therefore it shall not be subject to revocation of fraudulent act.

However, considering all the circumstances such as the circumstance leading up to divorce from a marriage recognized by the record up to divorce, the circumstance of acquiring the apartment of this case in the name of the non-party during the marital life, the degree of property owned by the two persons after divorce, and the non-party’s transfer of the apartment of this case to the defendant as a division of property, and the non-party’s transfer of the non-party’s claim against the non-party to the non-party to the division of property, the transfer of the whole apartment of this case to the defendant as a division of property is deemed reasonable. Thus, the court below should have determined the amount of property division excluding the amount equivalent to consolation money due to divorce by agreement between the defendant and the non-party, and should have ordered revocation as a fraudulent act only for the excess portion.

Nevertheless, the court below rejected the defendant's assertion that the donation of the apartment of this case is a consolation money which is accompanied by divorce, and does not constitute a fraudulent act. This is erroneous in the misapprehension of legal principles as to the division of property, or in the misapprehension of legal principles as the object of revocation of fraudulent act, and it has affected the conclusion of the judgment.

The grounds of appeal pointing this out are with merit.

4. Therefore, 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 Jin-hun (Presiding Justice)