[1] Whether a fraudulent act may be established where a debtor assumes an obligation for the purpose of having a specific creditor bear an obligation from the beginning with the intention of having the specific creditor obtain full seizure of the debtor's obligation, by taking advantage of the form of compulsory execution, and preparing a notarial deed stating the purport of accepting compulsory execution against it, and the creditor has obtained full seizure of the debtor's claim, and where there are special circumstances to deem that the debtor in substance does not differ from transferring his/her claim to a specific creditor, and where such act causes a situation where the debtor in excess of his/her obligation or deepens the debtor in excess of his/her obligation (affirmative)

[2] The case holding that the issuance of a promissory note cannot be readily concluded as a fraudulent act in case where the debtor assumes an obligation by the issuance of a promissory note and prepares a notarial deed containing a statement of acceptance for compulsory execution thereon, and the receiver of a promissory note was partially attached to the debtor's claim for construction price, but the amount of the claim for construction price or the objective appraised value of the debtor's contract is not confirmed, since the above promissory note was issued at the time

[3] The method of restoring the whole value of a claim attached to a case where the act of assuming an obligation is revoked as a fraudulent act due to special circumstances to deem that the obligor has no different obligation from the assignment of the obligee’s claim to a specific obligee by means of a notarial deed stating a stipulation of acceptance for compulsory execution of a certain act of bearing an obligation (i.e., compensation for damage)

[4] The case holding that in a case where the issuance of a promissory note and the preparation of a notarial deed stating the stipulation of acceptance of compulsory execution against the issuance thereof and the seizure of the debtor's claim for the construction price is revoked as a fraudulent act because all of the claims for the construction price are not different from the debtor's assignment, the whole value of the claims for the construction price, which are seized, shall not be claimed for return due to the transfer of the claims for the construction price, because the whole value of the claims for the construction price has changed before and after the seizure, and it shall not be

[1] Since a fraudulent act refers to an act detrimental to the creditor by reducing active property or increasing the negative property, or by deepening the fact that the debtor has already been in excess of his/her obligation, a certain act should be presumed to have been caused by such act. Thus, in order to constitute a fraudulent act, it should be premised on the fact that the above act was caused by such act. This also applies to the case where the debtor, from the beginning, prepares a notarial deed stating the purport of having the specific creditor bear the obligation for the purpose of having the debtor bear the obligation, by taking into account the form of compulsory execution against the debtor's active property and accepting compulsory execution against it, and the creditor has used it to obtain the entire seizure of the debtor's claim.

[2] The case holding that the issuance of a promissory note cannot be readily concluded as a fraudulent act in case where the debtor assumes an obligation by the issuance of a promissory note and prepares a notarial deed containing a statement of acceptance for compulsory execution thereon, and the receiver of a promissory note was partially attached to the debtor's claim for construction price, but the amount of the claim for construction price or the objective appraised value as to the status of a contract for construction or status of a contract is not confirmed

[3] In a case where an obligation bearing an obligation is revoked as a fraudulent act under special circumstances to deem that the whole amount of the seized claim is different from that of the obligor’s assignment to a specific obligee, it cannot be claimed as restitution if the whole amount of the seized claim is changed before and after the entire amount of the seized claim is seized, and the claim’s value should be claimed as compensation for the entire amount of the attached claim at the time of the seizure.

[4] The case holding that in a case where the issuance of a promissory note and the preparation of a notarial deed stating the stipulation of acceptance of compulsory execution against the issuance thereof and the seizure of the debtor's claim for the construction price is revoked as a fraudulent act because the whole amount of the debtor's claim for the construction price is different from the debtor's assignment, the whole value of the seized claim for the construction price has changed before and after the entire seizure, and it shall not be claimed for the return of the seized claim for the construction price, and it shall be based on the method of seeking compensation for the objective appraised value

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act / [4] Article 406 (1) of the Civil Act

Plaintiff

Defendant (Attorney Park Hong-hoon et al., Counsel for defendant-appellant)

Seoul High Court Decision 99Na41413 delivered on December 21, 1999

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) On December 1997, the Plaintiff had a claim for 75,413,800 won and damages for delay for a part of the claim against the Large Construction Co., Ltd. (hereinafter referred to as "Large Construction"), and the Defendant had a claim for 74,04,000 won and damages for delay.

(2) At the time, the construction was awarded a contract for each of the construction cost of KRW 2,283,181,501 from the king and the Korea Electric Power Corporation’s construction cost of KRW 2,923,901,100 from the Gwangju-gun, and the construction cost of KRW 391,850,100 from the Gwangju-gun was immediately prior to the contract for the construction cost of KRW 391,850,100. However, there was a financial shortage in the absence of particular assets other than each of the above construction claim. However, the provisional attachment by the creditors including the Plaintiff, etc. was likely to

(3) The defendant, whose partner and director are registered in large-scale construction and its partner and director, shall perform the construction works contracted by the Korea Electric Power Corporation and Gwangju-gun among the said three construction works contracted by large-scale construction. However, as the other creditors in relation to large-scale construction avoid compulsory execution of each of the above construction works claims, the construction of large-scale construction shall issue a promissory note at a value equivalent to the above construction cost to the defendant, and prepare a notarial deed and take over each of the above construction cost claims in the manner that the defendant is ordered to take over a notarial deed in its entirety. However, in order to prevent the defendant from disposing of his right to the construction cost without permission, the non-party 1, a joint receiver of large-scale construction, was agreed to add the above construction cost claims.

(4) Accordingly, on December 5, 1997, Dae Construction issued and delivered to the defendant and the non-party 1 a promissory note with a face value of KRW 3.5 billion, and on December 1997, the payee issued and delivered to the defendant and the non-party 1, and on the 19th of the same month, a notarial deed with a view to accepting immediate compulsory execution upon refusal to pay the said promissory note.

(5) On the 29th of the same month, the defendant and the non-party 1 received the attachment and assignment order as to the claim for the construction price against the Korea Electric Power Corporation of Tae-Construction with respect to the claim of KRW 3 billion among them under the name of debt, and attachment and assignment order as to the claim for the construction price against Tae-Construction with respect to the remainder of KRW 500 million, respectively, and each assignment order became final and conclusive around that time.

(6) Thereafter, on February 19, 1998, Nonparty 1 transferred the entire amount of the claim against Gwangju-gun to the defendant.

(7) Meanwhile, the Defendant transferred the entire claim against the Korea Electric Power Corporation to the Korea Electric Power Corporation, but completed the construction work by way of subcontracting, etc.

(8) However, on August 3, 1998, the Defendant was not able to receive the construction cost on the wind that the Plaintiff obtained a decision on the prohibition of disposal of the above claim for the construction cost against Gwangju-gun.

B. Based on the above facts, the court below held that the defendant had a monetary claim which does not amount to KRW 100 million against quasi-construction, and, in reality, without acquiring monetary claims equivalent to the face value of the Promissory Notes, the act of bearing the processed promissory note which issued the Promissory Notes in question to the defendant without acquiring monetary claims equivalent to the face value of the Promissory Notes in reality has inflicted damage on the defendant's joint collateral value of the quasi-construction's responsible property, as well as the act of issuing the Promissory Notes in itself, the act of issuing the Promissory Notes constitutes a fraudulent act knowing that the act of issuing the Promissory Notes constitutes a creditor's fraudulent act, and thus, the defendant revoked the issuance of the portion equivalent to the amount of the plaintiff's claim, and ordered Gwangju-gun to transfer the above construction claim against Gwangju-gun to its original state, and to give notice of its transfer.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below in the following respects.

A. Since a fraudulent act refers to an act detrimental to the obligee by reducing the obligor’s active property or increasing the negative property, or by deepening that the obligor has already been in excess of his/her obligation, a certain act should be presumed to have been caused by such an act. Thus, in order to constitute a fraudulent act, it should be premised on the fact that the above act was caused by the said act. The same applies to the case where the obligor, from the beginning, prepares a notarial deed stating the purport of accepting compulsory execution against the obligor’s obligation with the intention of having a specific obligee bear the obligation, by taking into account the form of compulsory execution against the obligor’s active property, and the obligee takes part in the seizure of the obligor’s claim.

However, at the time of the issuance of the Promissory Notes, the Construction Co., Ltd. entered into a contract for each of the above construction costs of KRW 2,283,181,50, and KRW 2,923,901,100 with the Korea Electric Power Corporation and KRW 391,850,100 with the payment of the construction cost of KRW 391,850,100 with the payment of the said Promissory Notes prior to the conclusion of the contract, and the total amount of the contract amount of the construction cost of the said Promissory Notes reaches KRW 5,598,932,701 with the face value of the instant Promissory Notes more than the face value of the instant Promissory Notes. Thus, it cannot be readily concluded that the construction of the Promissory Notes up until the time of the issuance of the instant Promissory Notes did not confirm the objective appraised value of each of the above construction works, including the amount of the contract price claims arising from the issuance of the instant Promissory Notes, or the Defendant’s compulsory execution consent thereto.

B. Meanwhile, in a case where the obligation bearing an obligation is revoked as a fraudulent act under special circumstances to deem that the whole amount of the seized claim is not different from that of the obligor’s transfer of the claim to a specific obligee, even in a case where the obligation bearing an obligation is revoked as a fraudulent act, if the value of the entire claim is changed before and after the entire seizure, it cannot be claimed for the return of the seized claim itself as the restoration of the original claim, and the compensation for the value of the claim should be claimed at the time of the entire seizure.

However, according to the records, the defendant can be found to have completed the construction work under the construction contract for Gwangju-gun after being seized or fully executed by the defendant. Thus, the above claim for the construction work price has changed in its nature, content, or value after seizure or whole. Therefore, the restoration following cancellation of the issuance of the Promissory Notes as it constitutes fraudulent act cannot be claimed by the defendant's transfer of the above claim for the construction work price which the defendant currently holds, and the above seizure and whole seizure should be sought by the method of seeking the return of the above claim for the construction price, the objective appraised value of the above claim for the construction price at the time of seizure or the compensation for damages equivalent to the claim

C. Nevertheless, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the revocation of fraudulent act and reinstatement, which affected the conclusion of the judgment, on the ground that the issuance of the Promissory Notes in this case was a fraudulent act, and that the defendant ordered the restoration of the original state by transfer of the claim for construction price

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 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 Song Jin-hun (Presiding Justice)