[Defendant-Appellee] Plaintiff 1 and 2 others (Law Firm Han, Attorney Kang Jong-chul, Counsel for defendant-appellee)

Defendant (Law Firm White, Attorney Kang Young-chul, Counsel for defendant-appellant)

December 2, 2016

1. The defendant will implement the registration procedure for transfer of ownership due to the cancellation of fraudulent act to the non-party 1 (date of birth omitted) on each real estate listed in the separate sheet.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff filed a lawsuit against Nonparty 1 seeking the return of unjust enrichment with the Jeonju District Court 201Gahap4338, and “Nonindicted 1 shall be sentenced to the judgment of the court below that: (a) with respect to KRW 289,058,600 and KRW 180,000,000 from August 2, 201 to May 2, 2013; and (b) with the interest of KRW 20% per annum from the next day to the day of full payment; (c) with respect to KRW 109,058,60, the amount calculated at each rate of KRW 5% per annum from August 2, 2011 to February 17, 2012; and (d) the amount calculated at each rate of KRW 20% per annum from the next day to the day of full payment; and (d) the said judgment became final and conclusive after the final appeal.

B. Since then, the Plaintiff filed a lawsuit against the Defendant on February 1, 2010 regarding each of the real estate listed in the separate sheet (hereinafter “each of the instant real estate”) with the Jeonju District Court Decision 201Gahap4345, which was concluded on February 1, 2010 between Nonparty 1 and the Defendant, as a fraudulent act. The Plaintiff filed a lawsuit against Nonparty 1 seeking the cancellation registration procedure for each of the instant real estate, which was completed on February 4, 2010 by the Jeonju District Court Kim Jong-dong Office (hereinafter “each of the instant real estate”) and completed on February 4, 2010 by the Defendant for the cancellation registration procedure for each of the instant real estate (hereinafter “each of the instant real estate”). On June 19, 2013, the said court filed the lawsuit against the Defendant on the grounds that

C. In response to the judgment of the first instance, the Plaintiff appealed to the Gwangju High Court (Seoul High Court) 2013Na15444 (hereinafter “Prior Appeal”), and the said court closed the pleadings on December 19, 2013, and subsequently revoked the sales contract concluded on February 16, 2014 with respect to each of the instant real estate between the Defendant and Nonparty 1 (hereinafter “instant sales contract”); and the Defendant rendered a judgment with Nonparty 1 that “the procedure for the registration of cancellation of each of the instant transfer of ownership was fulfilled” and the said judgment became final and conclusive on February 4, 2014 (hereinafter “Prior Appeal”).

D. On the other hand, on December 4, 2013, the Defendant entered into a loan transaction agreement with the Gimimnam Agricultural Cooperative on the loan limit of 200 million won, the expiration date of the loan, as of December 4, 2015, and completed the registration of creation of a neighboring mortgage covering the maximum debt amount of 300 million won with respect to each of the instant real estate to the Gimcheon Agricultural Cooperative on the same day. On January 17, 2014, the Defendant borrowed 200 million won interest per annum from Nonparty 2 on January 17, 2014, and completed the registration of creation of a neighboring mortgage covering the maximum debt amount of 300 million won with respect to each of the instant real estate to Nonparty 2 on the same day.

E. After that, with respect to Jeonju District Court 2014Gau1804, the Plaintiff sought the declaration of consent to the registration of cancellation of each ownership transfer registration of the instant case pursuant to the preceding judgment, and against the non-party 2, the Plaintiff filed a lawsuit seeking compensation for damages on the ground that the execution of the preceding judgment is impossible in the event that it is not recognized to have an obligation to consent to the said non-party 2, and the said court partially accepted the Defendant’s claim against the Defendant on January 7, 2015.

F. Accordingly, the Plaintiff and the Defendant appealed to the Gwangju High Court (former District Court) 2015Na231. The Plaintiff sought compensation for the damages for the reason that the Defendant’s restoration obligation pursuant to the preceding judgment was impossible or impossible to execute due to the primary cause of the claim. The Plaintiff’s primary cause of the claim changed the purport of the claim and the cause of the claim to seek unjust enrichment equivalent to the Plaintiff’s claim against Nonparty 1 on November 12, 2015, by seeking compensatory damages for the reason that the registration procedure for cancellation of ownership transfer registration was impossible or impossible to execute due to the primary cause of the claim, the damages arising from the Defendant’s unlawful act of establishing a collective security right due to the primary cause of the claim, and the third preliminary cause of the claim, the Plaintiff’s primary claim and the lawsuit for the first preliminary claim are dismissed on the ground that there is no benefit of protection of rights, and both the Plaintiff’s second and third preliminary claims were dismissed. The Plaintiff’s appeal was dismissed on March 24, 2016.

[Ground of recognition] The fact that there is no dispute, Gap's No. 1-5 (including a provisional number; hereinafter the same shall apply), Eul's evidence No. 1, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's main defense

1) The Plaintiff had already filed a lawsuit against the Defendant and revoked the instant sales contract as a fraudulent act, and received the prior judgment of this case to the effect that Nonparty 1 comply with the registration procedure for cancellation of each ownership transfer registration of this case due to restitution to its original state. The Plaintiff’s lawsuit of this case is unlawful because it conflicts with the res judicata of the previous judgment, and thus, there

2) In addition, a lawsuit seeking revocation of a fraudulent act shall be filed within five years from the date of the juristic act, or one year from the time when the obligee becomes aware of the cause for revocation. Since the instant sales contract was concluded on February 1, 2010, the instant lawsuit brought on June 8, 2016 is unlawful because the said limitation period has lapsed.

B. Determination

1) Whether benefits for protection of rights are recognized

A) In light of the following circumstances, it is reasonable to view that the Plaintiff has a benefit in the protection of rights to seek the implementation of the procedure for ownership transfer registration against the Defendant even if the prior ruling of this case became final and conclusive, even if the aforementioned prior ruling was based on the evidence and the purport of the entire pleadings as seen earlier. Therefore, the Defendant’s prior defense on the merits of this part is not acceptable.

① If a creditor’s fraudulent act cancellation and claim for restitution are acknowledged, the beneficiary is obligated to return the object of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return originals, the beneficiary is obligated to compensate for the value of the object of the fraudulent act as performance of the duty to reinstate (see Supreme Court Decision 2000Da57139, Feb. 9, 2001, etc.). If a beneficiary’s ownership transfer registration has been completed on the ground of fraudulent act as to the subject real estate as in this case, the principle of restitution is to cancel the registration of ownership transfer so that the beneficiary returns the name of the subject real estate to the debtor by the method of cancelling the registration of ownership transfer: Provided, That the Supreme Court may seek for the cancellation of the registration of ownership transfer from the beneficiary in the manner of restoring the real name of the beneficiary, such as seeking for the cancellation of the registration of ownership transfer from the beneficiary in the future by the method of cancelling the registration of ownership transfer from the beneficiary (see Supreme Court Decision 2005Da57139, Feb. 9, 2009).

② The Plaintiff selected the method of restoring the original state to the Defendant, which is the principle of seeking the cancellation of the registration of transfer of ownership in this case, and the said judgment became final and conclusive. Since the right of revocation was established on the subject real estate thereafter, the Plaintiff failed to execute the said preceding judgment, and thereafter sought compensation for value on the ground that it was difficult to return originals to the Defendant, but was dismissed on the ground that there was no benefit in the protection of rights. If the execution of the judgment became impossible on the ground that there was no benefit in the protection of rights, as in the instant case, exceptional cases where the Plaintiff was dismissed on the ground that there was no benefit in the protection of rights to seek direct implementation of the registration of transfer of ownership in Nonparty 1 in the future against the Defendant, even if the obligor’s fraudulent act was recognized, the method of maintaining and preserving the relevant responsible property would be no longer harsh even if the obligee’s right of revocation is an exceptionally recognized method for preserving the responsible property under the Credit Act. This is too harsh compared from the first time.

③ Although it is difficult for the revocation obligee to report the progress of the lawsuit, to predict the failure of the lawsuit, to prevent damage arising from the selection of the first method of restitution by selecting an appropriate method of restitution in the course of the lawsuit. However, in particular, in the case of a lawsuit seeking cancellation of a fraudulent act, it is difficult for the revocation obligee to obtain accurate information in the course of the lawsuit as to whether the beneficiary or subsequent purchaser is bona fide or not, so it is difficult for the revocation obligee to obtain accurate information in the course of the lawsuit. Therefore, it is difficult for the revocation obligee to appropriately select the method of restitution in accordance with the actual situation. In addition, in this case, there is considerable difficulty for the revocation obligee to obtain the original return from the Defendant immediately before the closure of the pleadings. It appears that it was considerably difficult for the revocation obligee to amend the purport of the lawsuit by the method of the claim for ownership transfer registration to return the equivalent property or the original property, and it appears that the preceding appellate court of this case would also have never been able to modify the purport of the claim in the future or order the cancellation of the ownership transfer registration to the beneficiary.

④ Unless there exist special circumstances, such as that the beneficiary may transfer the subject matter to a third party without any limitation on mortgage, etc., the obligee may seek compensation equivalent to the value thereof against the beneficiary by means of restitution, and may seek direct performance of the obligor’s transfer registration procedure. In such cases, the right to claim restitution becomes final and conclusive as one of the original return and compensation, at the option of the obligee at the time of the closure of the pleadings, and once the obligee becomes final and conclusive by claiming the return of the original subject matter as a fraudulent act and restitution, even if the objective of return of the original subject matter cannot be achieved for any subsequent reason, the claim cannot be claimed for compensation again by exercising the right to claim restitution, and thus, such claim cannot be allowed as there is no benefit in the protection of rights. However, even if the above judgment was possible, it is difficult to conclude that the Plaintiff’s right to claim restitution of the original subject matter is no more than the value of the original subject matter at the time of the conclusion of pleadings at the fact-finding court, and it is difficult for the obligee to claim restitution of the original subject matter as it becomes final and conclusive as the obligee’s right.

⑤ The Defendant asserts that the subject matter of the prior judgment and the subject matter of the instant lawsuit are identical to that of the instant lawsuit, and that there is no benefit in the protection of rights because they conflict with the res judicata of the instant prior judgment. However, the subject matter of the lawsuit that determines the scope of res judicata is specified by the Plaintiff’s purport and the cause of the claim, and in principle, the subject matter of the lawsuit is not identical (see Supreme Court en banc Decision 94Da17956 delivered on April 25, 1995, Supreme Court Decision 91Da45356 delivered on April 10, 192, Supreme Court Decision 91Da45356, 91Da45363 delivered on April 10, 192, and the subject matter of the instant prior judgment must be restored to the Plaintiff, and the purport of the instant lawsuit should be implemented by the Defendant due to the restoration of ownership due to the revocation of the fraudulent act, and as long as the purport of the lawsuit is different, the subject matter of the lawsuit is different.

(6) Meanwhile, as seen earlier, the Supreme Court en banc Decision 99Da37894 Decided September 20, 201 states that the legal principle that registration of ownership transfer based on the restoration of the true name shall be applied as it is with respect to the restoration of the original name in lieu of the claim for cancellation of registration of invalidation. The Supreme Court en banc Decision 9Da37894 Decided September 20, 2001 states that registration of ownership transfer based on the restoration of the true name allowed in lieu of the claim for cancellation of registration of invalidation is identical in substance even if the former takes the form of registration of cancellation, even if the latter takes the form of registration of cancellation, if the above legal principle applies to the lawsuit seeking cancellation of registration of beneficiary's name in the lawsuit for cancellation of fraudulent act and seeking to directly perform the procedure of registration of ownership transfer in lieu of seeking cancellation of registration in the name of beneficiary is also identical in the subject matter of lawsuit. However, if the legal principle of the above en banc Decision with respect to the subject matter of lawsuit is the same as the substantive purpose and legal basis of the claim for cancellation of ownership registration based on the original purport of the claim for cancellation.

2) Whether the exclusion period is expired

A) In accordance with Article 406(1) of the Civil Act, when a creditor claims revocation of a fraudulent act and restitution to its original state in accordance with Article 406(1) of the Civil Act, he/she may first claim revocation of a fraudulent act and then subsequently claim restitution to its original state later. In such cases, if a claim for revocation of a fraudulent act was filed within the period provided for in Article 406(2) of the Civil Act, the claim for restitution to its original state may be made even after the period expires (see Supreme Court Decision 2001Da14108, Sept.

B) In light of the above legal principles, as long as the instant sales contract concluded between the Defendant and Nonparty 1 constitutes a fraudulent act, the instant claim seeking restitution may be filed even after the expiration of the period, as long as the instant contract was already revoked through the preceding judgment, on the grounds that the instant contract constituted a fraudulent act, as seen earlier, and thus, the Defendant’s defense prior to the merits cannot be accepted.

3. Determination as to the cause of action

A. As seen earlier, the fact that the instant sales contract for each of the instant real estate concluded between the Defendant and Nonparty 1 was revoked as a fraudulent act according to the preceding judgment of this case is identical to the fact that the instant sales contract was revoked as to each of the instant real estate, and thus, the Defendant is obliged

B. Furthermore, barring any special circumstance, such as that where a third party acquires a mortgage, superficies, etc. on the method of restitution, a creditor may seek compensation equivalent to the value of the property against the beneficiary instead of returning the original property, barring special circumstances, such as that the beneficiary may transfer the property to its original state without any restriction such as mortgage, etc. However, the creditor may seek compensation against the beneficiary in lieu of returning the original property. However, in such a case, the creditor may seek the cancellation of the registration in the name of the beneficiary instead of compensating for the value by the method of restitution, or seek the debtor to directly implement the procedure for transferring ownership registration against the beneficiary (see Supreme Court Decision 200Da57139, Feb. 9, 2001, etc.).

C. Therefore, the defendant is obligated to implement the registration procedure for transfer of ownership on each of the instant real estate to Nonparty 1 for restitution due to the revocation of fraudulent act.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition with the assent of all participating Justices.

[Attachment]

Judges Go Jong-san (Presiding Judge) Kim Jong-woo Kim