[1] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act

[2] The case holding that it is highly probable at the time of the fraudulent act that the legal relations, which already form the basis of the establishment of the claim, are established, but the claim is created in the near future

[1] In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been a legal relationship which serves as the basis of establishment of the claim, and there is high probability that the claim would have been created based on the near future legal relationship, and in a case where a claim has been created by the realization of the probability in the near future, the claim may also

[2] The case holding that it is highly probable at the time of the fraudulent act that the legal relationship, which already forms the basis of the establishment of the claim, has already been established at the time of the fraudulent act, but the claim is created in the near future

[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code

[1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong1996Sang, 173), Supreme Court Decision 97Da3434 delivered on October 28, 1997 (Gong1997Ha, 3642), Supreme Court Decision 2000Da17346 delivered on June 27, 2000 (Gong2000Ha, 1759), Supreme Court Decision 200Da37821 Delivered on March 23, 2001 (Gong201Sang, 953), Supreme Court Decision 2001Da81870 delivered on March 29, 2002 (Gong202Sang, 102Sang, 102)

Korea Technology Credit Guarantee Fund (Law Firm Newcheon-gu General Law Office, Attorney Tae Tae-tae, Counsel for defendant-appellant)

Defendant

Gwangju High Court Decision 99Na6349 delivered on October 18, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been established a legal relationship that serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future, and in the near future, the claim may also become a preserved claim in the obligee’s right of revocation in the near future (see Supreme Court Decisions 2000Da17346, Jun. 27, 200; 200Da37821, Mar. 23, 2001).

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff received interest from May 3, 1993 to July 14, 197, 197 at the first instance court Co., Ltd. (hereinafter referred to as "Co., Ltd.")'s credit guarantee for the loan from banks. Co., Ltd. (hereinafter referred to as "Co., Ltd.") of the first instance court started to perform the guaranteed obligation from June 16, 198 due to the failure of payment of principal and interest on C Co., Ltd., 1997 to 197.6 billion won, and determined that it was difficult for the plaintiff to receive 197.6 billion won from 197.6 billion won from 2.6 billion won from 197 to 197.6 billion won from 197.6 billion won from 197 to 197.6 days from 2.6 days from 198.4 days from 196 days from 197.

관계 증거들을 기록에 비추어 살펴보면, 이러한 원심의 사실인정은 옳고, 나아가 소안수협에 대한 대출금 중 1996. 8. 22.자 2억 원 부분은, 삼창식품이 같은 해 12. 27. 및 1997. 5. 16. 각각 그 당시까지의 연체이자를 모두 변제하였고, 같은 해 7. 22.부터의 연체이자도 같은 해 12. 26. 모두 변제하였으며(1996. 11. 23.부터 같은 해 12. 27.까지 사이에 이자가 연체된 것은 삼창식품과 소안수협 사이에 톳 대금 관계로 분쟁이 있었기 때문으로 보인다.), 원금은 그 변제기인 1997. 7. 21. 다시 대출약정을 함으로써 연체되지 아니하였고, 1997. 5. 16.자 9억 8,000만 원 부분은 같은 해 12. 31.까지 전혀 연체한 바 없는 사실을 알 수 있는바, 원심의 인정 사실에다가 이러한 사정을 보태어 보면, ○○○이 이 사건 부동산을 피고에게 증여할 당시에 원고의 ○○○에 대한 구상금채권이 발생하지 않았을 뿐만 아니라, 이 사건 증여 당시에 이미 채권 성립의 기초가 되는 법률관계가 성립되어 있기는 하였으나, 가까운 장래에 그 법률관계에 기하여 채권이 발생하리라는 점에 대한 고도의 개연성이 있다고 보기도 어렵다.

The decision of the court below to the same purport is just, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the preserved claim.

The grounds of appeal pointing out this issue are rejected.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)