[1] The case holding that in a case where the right to collateral security contract concluded between the debtor Gap and the beneficiary Eul constitutes a fraudulent act and the creditor Byung filed a lawsuit for revocation of the fraudulent act against Eul is pending in the appellate trial, Eul was compensated for the equivalent value based on Eul's ruling of recommending the settlement of the lawsuit seeking revocation of the fraudulent act which was concluded before the court of final appeal of the lawsuit seeking revocation of the fraudulent act while the lawsuit for revocation of the above right to collateral security contract was pending in the court of final appeal, Byung filed a claim for compulsory execution after receiving a final and conclusive judgment of the same contents as the above ruling in the lawsuit seeking revocation of the fraudulent act

[2] In a case where the grounds for objection under Article 44(2) of the Civil Execution Act are related to the requirements for a lawsuit, whether the grounds arising after the judgment of the court of final appeal should be limited (negative)

[3] The case holding that Eul's act does not go against the principle of good faith in a case where Eul asserted that the contract to establish a right to collateral security was not a fraudulent act in a lawsuit for revocation of a fraudulent act filed by Eul while the debtor Gap and the beneficiary Eul constituted a fraudulent act

[1] The case holding that in case where Eul filed a claim for compulsory execution based on the final judgment of the previous fraudulent act revocation lawsuit against Eul while the lawsuit for revocation of the previous fraudulent act was pending in the appellate trial while the lawsuit for revocation of the previous fraudulent act was pending against Eul while the creditor Byung filed a lawsuit for revocation of the previous fraudulent act, Eul was compensated for the equivalent value based on Eul's recommendation of the subsequent fraudulent act revocation lawsuit which was pending in the court of final appeal in the previous lawsuit for revocation of the previous fraudulent act, Byung filed a claim for compulsory execution after receiving a final judgment of the same contents as the above decision in the previous lawsuit for revocation of the previous fraudulent act, Eul filed a claim for objection, the case holding that Eul's compulsory execution based on the final judgment of the previous fraudulent act revocation lawsuit as to the previous fraudulent act should be denied since Eul returned the amount of compensation for the previous fraudulent act to Eul who is the revoked creditor based on the final judgment

[2] According to Article 44(2) of the Civil Execution Act, a ground for objection ought to arise after the conclusion of pleadings (in the case of a judgment without holding any pleadings, after a judgment is rendered). The provision of a lawsuit for objection under Article 44 of the Civil Execution Act is intended not to enforce unjust compulsory execution. The limitation of the ground for objection is because it goes against res judicata of the final and conclusive judgment’s final judgment’s final judgment that contests the legal relationship established as at the time of the closing of arguments before the closing of arguments. The benefit of protection of rights is a litigation requirement and the court’s ex officio examination. The time of determination of the litigation requirement is the same as the time of res judicata, and the occurrence, modification, or extinction of a situation meeting the litigation requirement after the closing of arguments at the fact-finding court is the same as the time of the final and conclusive judgment’s ex officio examination. In light of the fact that the court may not consider the specific facts that are the basis for the existence of litigation requirements even after the closing of arguments at the fact-finding court, the grounds for final appeal should not be interpreted after the final appeal.

[3] The case holding that in a case where the right to collateral security contract concluded between the debtor Gap and the beneficiary Eul constitutes a fraudulent act and the creditor Byung asserted that the right to collateral security contract was not a fraudulent act in the prior lawsuit filed by the creditor Byung against Eul, the right to collateral security contract was not a fraudulent act, and in a lawsuit for revocation of fraudulent act filed by the creditor Byung, the right to collateral security contract was acknowledged as a fraudulent act and confirmed as it was without an objection to the ruling of recommending settlement in the previous lawsuit for revocation of fraudulent act, and then compensation was paid in accordance with the final decision of recommending settlement that became final and conclusive only for all creditors without deposit for all creditors, the right to recognize a fraudulent act in the lawsuit for revocation of fraudulent act after Eul is consistent with the substantive truth, and it is not contrary to the good faith principle, since it is contrary to the good faith principle, and even if there was an unfair result in the repayment of preferential repayment, it is not contrary to the interpretation of the current provisions related to the creditor cancellation.

[1] Article 406 (1) of the Civil Act, Article 248 of the Civil Procedure Act / [2] Article 44 of the Civil Execution Act, Articles 216, 248 of the Civil Procedure Act / [3] Article 2 of the Civil Act, Article 406 (1) of the Civil Act

[2] Supreme Court Decision 81Da124 delivered on June 23, 1981 (Gong1981, 14097) Supreme Court Decision 98Da908 delivered on May 26, 1998 (Gong1998Ha, 1734)

Plaintiff

Defendant (Law Firm Lee & Lee, Attorneys Kim Shin-ho et al., Counsel for defendant-appellant)

Suwon District Court Decision 2010Da53203 decided November 3, 2011

July 18, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Suwon District Court Decision 2009Na35672 Decided June 11, 2010 against the defendant's plaintiff rejected compulsory execution based on the judgment of the court below.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. The defendant's lawsuit seeking revocation of fraudulent act against the plaintiff

1) On February 12, 1998, the Defendant lent KRW 100 million to Nonparty 1 and Nonparty 2 (hereinafter “Nonindicted 1, etc.”) at an annual interest rate of 24%. Afterwards, the Defendant collected the principal and interest of the loan through voluntary repayment by Nonparty 1, etc. and compulsory execution based on the above loan claim pursuant to the Seoul District Court Decision 9Da59219 decided on August 2, 2006, the Daejeon District Court Decision 2005Da33241 decided Oct. 10, 2006, which filed against the Defendant by Nonparty 1, etc., and the compulsory execution pursuant to the Seoul District Court Decision 9Da59219 decided on Oct. 10, 2006, “The amount exceeding 24% per annum from August 2, 2004 to 28,508,718.”

2) Around November 5, 2003, Nonparty 1 purchased ○○○○ apartment No. 102 and 1804 of the Dong-gu, Daejeon, Daejeon, and completed the registration of ownership transfer regarding the above apartment on October 19, 2006. On November 2, 2006, Nonparty 1 entered into a mortgage contract with the Plaintiff, who is one of its external third villages, with the maximum debt amount of KRW 150 million (hereinafter “mortgage contract”). On November 8, 2006, Nonparty 1 completed the registration of ownership transfer regarding the above apartment.

3) On November 15, 2007, the Defendant filed a lawsuit seeking revocation of the fraudulent act (hereinafter “prior lawsuit”) against the Plaintiff on the grounds that the mortgage contract of this case constituted a fraudulent act and filed a lawsuit seeking revocation of the fraudulent act (hereinafter “prior lawsuit”).

4) On November 11, 2009, the above court rendered a judgment that "the mortgage contract of this case shall be revoked within the scope of KRW 35,58,936. The plaintiff shall pay to the defendant 35,588,936 with 5% interest per annum from the day following the day when the judgment became final and conclusive to the day of complete payment."

5) Although the Plaintiff appealed against the above judgment by this Court No. 2009Na35672, the appellate court concluded the pleadings on June 11, 2010 and rendered a judgment to the same effect as the judgment of the first instance on July 2, 2010.

6) Although both the Plaintiff and the Defendant appealed to the Supreme Court Decision 2010Da66460 on the above judgment, the said judgment was dismissed on October 28, 2010, and the said judgment of the appellate court (hereinafter “the final judgment of this case”) became final and conclusive as it is.

B. Filing a lawsuit seeking revocation of the fraudulent act against the plaintiff by the non-party 3

1) On June 3, 2010, during the appellate trial of the previous lawsuit, Nonparty 3, a other creditor against Nonparty 1, filed a lawsuit seeking revocation of the fraudulent act (hereinafter “the subsequent lawsuit”) with the Daejeon District Court 2010Kadan2676, asserting that the mortgage contract in the instant case constituted a fraudulent act against the Plaintiff.

2) On July 29, 2010, the aforementioned court revoked the instant mortgage contract within the scope of KRW 35,58,936, and decided to recommend reconciliation that “The Plaintiff shall pay Nonparty 3 the amount of compensation for the loss incurred by the revocation of the fraudulent act, KRW 35,58,936, and the amount of compensation for delay incurred therefrom,” and the said decision was served on the Plaintiff on August 6, 2010, and confirmed as it was on August 21, 2010.

C. Attachment and collection of claims by Nonparty 3

1) On October 1, 2010, Nonparty 3 received a seizure and collection order against the Plaintiff’s deposit-return claim against the Plaintiff’s National Agricultural Cooperative Federation as the Daejeon District Court 2010TTT14774, which was pending in the court of final appeal on October 1, 2010, by designating the Plaintiff as the debtor and the National Agricultural Cooperative Federation as the garnishee, and the said order was served on the National Agricultural Cooperative Federation on October 6, 2010.

2) On October 18, 2010, Nonparty 3 collected KRW 35,962,557 (including interest and enforcement expenses) from the National Agricultural Cooperative Federation based on the above order of seizure and collection.

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 and 2 evidence (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

Where several creditors have filed a lawsuit for the revocation of a fraudulent act and a lawsuit for restitution are pending in several lawsuits, the judgment ordering the revocation of a fraudulent act and the restoration to original state shall be rendered at the request of the creditors in each lawsuit, and even in cases where a beneficiary is liable for compensation for value, the beneficiary shall not order the return within the extent of proportional distribution among the creditors in proportion to the amount of claims that should be returned by each creditor, but shall order the return of the total amount of the preserved claim amount by each creditor within the extent of the value that the beneficiary should return. In such cases, where the judgment ordering the return of the total amount of the amount of the preserved claim to be returned by the beneficiary in several lawsuits becomes final and conclusive, the beneficiary may be at risk of returning the double amount. However, where a beneficiary has returned some or all of the amount of the compensation that he/she is liable for, the beneficiary may refuse to make double payment to the other creditor by means of a claim objection, etc. (see Supreme Court Decision 2007Da843

According to the above facts, the Plaintiff, as a beneficiary of the instant mortgage contract, which was recognized as a fraudulent act in the previous lawsuit and the subsequent lawsuit, returned the value of the instant mortgage contract to Nonparty 3, the cancelled creditor, based on the decision of recommending settlement that became final and conclusive in the subsequent lawsuit, and thus, forced execution based on the final and conclusive judgment of the previous lawsuit regarding the same fraudulent act shall be denied.

3. Judgment on the defendant's assertion

A. Determination as to the non-existence of the grounds for objection

1) The assertion

The grounds for the objection are, in principle, a reason arising after the closing of argument in the fact-finding court. However, the requirements for the lawsuit are subject to ex officio examination, and thus, in exceptional cases, the grounds for the objection to the requirements for a lawsuit ought to arise after the pronouncement of the judgment of the court of final appeal. As the Plaintiff completes compensation for the value by a subsequent suit before the judgment of the court of final appeal was rendered, the prior suit was a defect in the benefits for the protection of rights at the stage of final appeal, and the Plaintiff could assert it in the prior suit, and thus,

2) Determination

However, according to Article 44(2) of the Civil Execution Act, the grounds for raising an objection ought to arise after the pleadings have been closed (in the case of a judgment without holding any pleadings, after a judgment is rendered). The provision of a lawsuit seeking an objection under Article 44 of the Civil Execution Act is intended not to carry out unjust compulsory execution. The limitation of the grounds after the closing of arguments is made on the grounds following the closing of arguments is in conflict with the res judicata effect of a final and conclusive judgment (see Supreme Court Decision 98Da9908 delivered on May 26, 1998).

The benefit of protection of rights is a litigation requirement and the court's ex officio investigation. In principle, the time of determination of the litigation requirement is the same as the time of res judicata. In the event of occurrence, modification, or extinction of a situation that meets the litigation requirement after the closing of arguments in the fact-finding court, it can be considered ex officio at the court of final appeal, and in principle, the court shall not consider the specific facts that are the basis of the existence of litigation requirement, unless the parties have asserted until the closing of arguments in the fact-finding court (see Supreme Court Decision 81Da124, Jun. 23, 1981). In light of the above, there is no ground for narrowly interpreting Article 44(2) of the Civil Execution Act that in the event of a ground for objection to the litigation requirement, the language of

Therefore, this part of the defendant's argument cannot be accepted as an independent opinion.

B. Determination on the assertion of violation of the good faith principle

1) The assertion

The plaintiff and the non-party 3 asserted false claims against the non-party 1 and filed a subsequent lawsuit against the plaintiff. The plaintiff and the non-party 3 confirmed the subsequent lawsuit as a recommendation for compromise at the time they left the judgment of final appeal of the previous lawsuit, and completed compensation for value in cash in accordance with the settlement recommendation that became final and conclusive, and the non-party 3 returned the money collected as compensation for value in cash to the plaintiff. The series of the above actions were recruited by the plaintiff, the non-party 3 and the non-party 4, who were the attorney of the plaintiff and the non-party 3, to interfere with the exercise of the defendant's claim against the non-party 1. The plaintiff formed the state of a lawsuit unfavorable to the defendant in advance and brought a lawsuit of objection against the claim in this case by unfairly using it. The plaintiff asserted that the mortgage contract of this case was not a fraudulent act while the plaintiff asserted that the mortgage contract of this case was not a fraudulent act, but did not raise any objection against the decision of recommendation for compromise in the previous lawsuit

2) Determination

However, according to the evidence and the purport of the whole pleadings submitted by the defendant, the following facts can be acknowledged: (a) the non-party 3 filed a subsequent lawsuit while continuing the appeal court; (b) the subsequent lawsuit was promptly terminated by the confirmation of the recommending settlement; (c) the non-party 3 and the non-party 4 did not appear even after being requested to attend several times in the lawsuit of this case as a witness; and (d) the defendant was issued a seizure and collection order against the plaintiff's deposit repayment claim against the National Agricultural Cooperative Federation because it is not disclosed that it is not easy to execute the claim; (b) however, such circumstances alone are insufficient to recognize that the non-party 3 had a claim against the non-party 1 by a close consultation with the aim to prevent the defendant from exercising the defendant's claim; (c) the plaintiff and the non-party 3 were confirmed as a recommending settlement and completed compensation for value; and (d) the non-party 3 returned the money collected by compensation for value. Therefore, it is difficult to deem that

A compromise inconsistent with the preceding act refers to a case where the other party commits an act contrary to the former’s trust by doing a certain act against the other party, and the other party’s promise cannot be anticipated at all in light of the other party’s act. However, even if the act contrary to the preceding act is an act contrary to the preceding act, the application of the preceding act may be excluded in a case where the latter act accords with substantive truth. In light of the foregoing legal doctrine, it is reasonable to deem the instant case as a fraudulent act in the preceding lawsuit, while the Plaintiff asserted that the instant contract of collateral security was not a fraudulent act, and the latter did not object to the decision of recommending reconciliation. This is contradictory to the preceding act. However, according to the final judgment of this case, the instant contract of collateral security constitutes a fraudulent act, and thus, it accords with the substantive truth that the Plaintiff recognized a fraudulent act in the latter lawsuit. Therefore, it cannot be said that the Plaintiff’s aforementioned act is contradictory to the preceding act,

As seen earlier, the Plaintiff completed compensation for the value according to the purport of the decision of recommending reconciliation in the subsequent lawsuit that became final and conclusive, and the previous lawsuit was still pending in the court of final appeal at that time, and the Plaintiff became final and conclusive without raising any objection to the decision of recommending reconciliation in the subsequent lawsuit, and the Plaintiff paid compensation for the value only to Nonparty 3 without depositing the entire creditor for the entire creditor, which resulted in an unfair outcome that Nonparty 3 actually receiving preferential reimbursement. However, such unfair payment is separate from the rectification through bankruptcy procedures, such as bankruptcy proceedings against the debtor, or the formulation and improvement of separate legal provisions on the procedure for distributing the amount of compensation for value, and it is inevitable in the interpretation of the current provisions related to the cancellation of creditor (see Supreme Court Decision 2007Da37837, Jun. 12, 2008). In light of the above, it is difficult to deem that the Plaintiff paid the money in accordance with the principle of good faith to Nonparty 3 without depositing any objection to the decision of recommending reconciliation in the subsequent lawsuit, and there is no evidence to acknowledge otherwise contrary.

Therefore, this part of the defendant's assertion is without merit.

4. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Han Dong-ho (Presiding Judge)