[1] The standard point of time to determine whether a qualified acceptor constitutes “a creditor known to the qualified acceptor” who is entitled to receive a dividend payment pursuant to Article 1034(1) of the Civil Act (=the time when the qualified acceptor makes a dividend payment)

[2] The contents and limitations of the court's exercise of the right to ask for clarification

[1] A qualified acceptor shall give public notice to the general obligees and testamentary donees within five days from the date of the qualified acceptance to report their claims or testamentary gifts within a certain period (hereinafter “the reported period”), and to the obligees known to such effect shall demand each of them to report their claims (Articles 1032(1), 1032(2), and 89 of the Civil Act). After the expiration of the reported period, a qualified acceptor shall make payment to the obligees and creditors known to the qualified acceptors within the said period in proportion to their respective claims (hereinafter “payment in distribution”). On the other hand, if a qualified acceptor and a person who received testamentary gifts who did not report within the reported period, “the qualified acceptor does not know to the qualified acceptor” can receive reimbursement only if there remains the remainder of the inherited property (main sentence of Article 1039 of the Civil Act). In this context, whether a qualified acceptor becomes aware of the inherited obligee’s repayment in accordance with Article 1034(1) of the Civil Act at the time of the report of the qualified acceptor’s repayment, not at the time of the obligation.

[2] The court's exercise of the right to explanation is to point out the contradictions in the parties' arguments or to give an opportunity to correct or supplement them when incomplete or unclear points exist, and to urge the submission of evidence as to the facts of dispute. Thus, it is against the principle of pleading to suggest the requirement of legal effect which the parties did not assert, or the independent means of attack and defense, and to recommend the submission thereof. The same act goes beyond the limit of the exercise of the right to explanation.

[1] Articles 89, 1032, 1034(1), and 1039 of the Civil Act / [2] Article 136 of the Civil Procedure Act

[2] Supreme Court Decision 2000Da22362 decided Aug. 22, 2000 (Gong2000Ha, 2010)

K&C Co., Ltd. (Law Firm Busan, Attorneys Park Jung-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Chang-mo, Counsel for defendant-appellant)

Ulsan District Court Decision 2015Na762 decided November 11, 2015

The part of the judgment of the court below concerning the revocation of fraudulent act and the claim for restitution shall be reversed, and that part of the case shall be remanded to the Ulsan District Court Panel Division. The remaining appeals shall be dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of the legal principles on qualified acceptance

A. A qualified acceptor shall give public notice to the general obligees and testamentary donees within five days from the date of the qualified acceptance to report their claims or testamentary gifts within a certain period (hereinafter “the reported period”), and to the obligees known to such effect shall demand each of them to report their claims (Articles 1032(1), 1032(2), and 89 of the Civil Act). After the expiration of the reported period, a qualified acceptor shall make payment to the obligees and creditors known to the qualified acceptors within the said period in proportion to their respective claims (hereinafter “payment in distribution”). On the other hand, if a qualified acceptor and a person who received testamentary gifts who did not report within the reported period, “a person who was unaware of the qualified acceptor” can receive reimbursement only if there remains the remainder of the inherited property (the main sentence of Article 1039 of the Civil Act). In this context, whether a qualified acceptor becomes aware of the inherited obligee’s repayment in accordance with Article 1034(1) of the Civil Act at the time of the report of the qualified acceptor’s repayment, not at the time of the obligation.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) On May 21, 2001, the Yangsan Credit Union loaned KRW 20 million to Nonparty 1, and Nonparty 2 jointly and severally guaranteed the above loan obligations of Nonparty 1. The Yangsan Credit Union bankrupted, and the Korea Deposit Insurance Corporation appointed as the bankruptcy trustee of the above union as the bankruptcy trustee of the above union transferred the above joint and several debt obligations of Nonparty 2 to the Plaintiff on September 29, 2005, and notified Nonparty 2 of the assignment of the credit.

(2) On the other hand, around May 2003, Nonparty 2 borrowed KRW 60,000,000 from the Defendant, and on May 31, 2003, Nonparty 2 completed the registration of creation of a mortgage over KRW 60,000,000 with respect to the real estate listed in the attached list of the lower judgment (hereinafter “instant real estate”).

(3) As Nonparty 2 died on January 8, 2007, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 (hereinafter “Nonindicted 3, etc.”) who are Nonparty 2’s children filed a qualified acceptance report with the Ulsan District Court, and the said court accepted it on April 17, 2007.

(4) On May 2, 2007, Nonparty 3, etc. announced the general inheritance creditors and testamentary donees to report the fact of qualified acceptance and the claim or testamentary gift until July 31, 2007, and notified the creditors of the inheritance claim stated in the list of inherited property attached to the qualified acceptance report. However, the Plaintiff’s claim for the amount of transfer money was not stated in the list of inherited property, and the Plaintiff did not report the amount of transfer money within the above period.

(5) After that, the Plaintiff filed the instant lawsuit against the Defendant on behalf of Nonparty 3, etc., claiming that the secured debt of the instant collateral security registration has expired by prescription, and Nonparty 3, etc. issued a letter of approval to confirm the existence of the said secured debt to the Defendant on April 30, 2014 (hereinafter “instant debt approval”).

(6) At the lower court, the Plaintiff additionally joined the claim for revocation of fraudulent act and restitution with respect to the declaration of intent to approve the instant debt.

(7) In the list of inherited property attached to a qualified acceptance report, the market price of the instant real estate is equivalent to KRW 73,00,000, and the loan obligations against the Defendant are KRW 60,000,000, respectively. Nonparty 3, etc. did not pay dividends under Article 1034(1) of the Civil Act from the expiration of the said report period to the present.

C. We examine these facts in light of the legal principles as seen earlier.

Considering that the list of inherited property attached to the qualified acceptance report does not include the Plaintiff’s claim for the amount of takeover, and Nonparty 3 et al. individually notified other inheritance creditors to report the claim, but did not give the Plaintiff a peremptory notice, at least, it appears that Nonparty 3 et al. did not know the Plaintiff at the time when the report on the claim was given. However, since Nonparty 3 et al. filed a lawsuit against the Defendant seeking cancellation of the registration of the instant right to collateral security in subrogation of Nonparty 3 et al. before the repayment of distribution was made, Nonparty 3 et al. in the lawsuit had prepared and delivered the letter of debt approval to the Defendant, it is reasonable to deem that Nonparty 3 et al. became aware of the existence of the Plaintiff’s claim for the amount of takeover at the latest. Accordingly, the Plaintiff should be deemed to fall under “creditor with the knowledge of the qualified acceptor”

Nevertheless, the lower court rejected the Plaintiff’s claim for revocation of fraudulent act, etc. on the grounds that the Plaintiff’s debt constitutes “a person who has no knowledge of the qualified acceptor,” which is entitled to receive reimbursement only in cases where the remaining portion of inherited property exists pursuant to the main sentence of Article 1039 of the Civil Act, and that the inherited property exceeds inherited property and the Plaintiff’s claim cannot be repaid with inherited property even after the registration of the instant collateral security was cancelled. Therefore, the lower court erred by misapprehending the legal doctrine on qualified acceptance, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

2. As to the assertion that restrictions on the debtor's right of disposal by the exercise of creditor's subrogation right, misapprehension of legal principles on the principle of pleading, violation of obligation of explanation

The court's exercise of the right to ask for Elucidation is a violation of the principle of pleading, and it does not deviate from the limitation of the exercise of the right to ask for Elucidation by suggesting the requirement of legal effect which the parties did not assert, or the independent means of attack and defense (see Supreme Court Decision 2000Da22362 delivered on August 22, 200).

According to the records, the plaintiff asserted that the secured debt of the registration of this case was extinguished by prescription, and requested the defendant to cancel the registration of this case on behalf of the non-party 3, etc., and up to the time of the original trial, the non-party 3, etc. did not assert that the plaintiff could not oppose the plaintiff since he renounced the prescription benefits by preparing a letter of approval for debt with the knowledge of the plaintiff'

Examining these circumstances in light of the legal principles as seen earlier, the lower court did not examine whether the waiver of the prescription benefit by Nonparty 3, etc. constitutes a disposition under Article 405(2) of the Civil Act, which cannot be asserted against the obligee, and did not urge the Plaintiff to assert and prove it. In so doing, the lower court did not err by misapprehending the legal doctrine regarding the limitation of the obligor’s right of disposal or the principle of pleading by exercising the subrogation right, or by failing to perform its duty of explanation.

3. Conclusion

Therefore, the part of the judgment below regarding the revocation of fraudulent act and the claim for restitution among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kim Seon-soo (Presiding Justice)