Whether a preserved claim becomes a preserved claim in case where the preserved claim was established before the fraudulent act, but the amount or scope has not been specifically determined (affirmative)

The exercise of the obligee's right of revocation does not seek performance of obligation, but is aimed at preventing the reduction of the obligor's financial capacity for all creditors, and collecting and securing the effectiveness of the obligation. Thus, the obligee's right of revocation is the preserved claim even if the amount or scope is not specifically determined as long as the preserved claim is established before the fraudulent act.

Article 406(1) of the Civil Act

11-4 District Housing Redevelopment and Improvement Project Association (Attorney Lee So-young, Counsel for the plaintiff-appellant)

Defendant (Law Firm Gyeonggi, Attorneys Yellow-chul et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2014Na36334 decided December 18, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. The exercise of the obligee’s right of revocation does not seek performance of an obligation, but is aimed at preventing the obligor’s reduction in financial capacity for all creditors, and ensuring the effectiveness of the obligor’s right of revocation by recovering and recovering the deviates obligor’s responsible property. As long as the preserved claim is established prior to the fraudulent act, it would be the obligee’s right of revocation even if its amount

2. According to the reasoning of the lower judgment, the lower court determined that it is difficult to view that there was a high probability that the Plaintiff’s claim for secondary damages was not occurred at the time of the instant gift contract, and that the said claim was established in the near future, even if Nonparty 1’s tort, which served as the basis for the establishment of the said claim, was committed, in light of the fact that the Plaintiff’s claim for secondary damages was embodied only in October 16, 2015, which was sentenced to the judgment by the Suwon District Court 2014Gahap69736 (hereinafter “relevant case”) among the Plaintiff and Nonparty 1, the Defendant, and that the Plaintiff’s damage was incurred after February 27, 2012, which is the date of the instant gift contract.

3. However, it is difficult to accept the judgment of the court below for the following reasons.

According to the records, as Nonparty 1 refused to request the withdrawal of deposit and prevented the Plaintiff from paying the full amount due to the Plaintiff’s refusal of the Plaintiff’s request for withdrawal, Nonparty 1 refused to request the withdrawal of deposit from August 2010, and the Plaintiff was unable to pay KRW 500 million to Nonparty 2 from August 1, 2010 until the date of payment determined by the Reconciliation Recommendation. Nonparty 2 collected the amount equivalent to KRW 690,983,600 on October 6, 2014 from the date of receiving the seizure order against the Plaintiff’s right to request the withdrawal of deposit and collected KRW 690,983,600 on October 1, 2014 from November 1, 2010 to December 208, 2008, which included the amount equivalent to KRW 300,000,000 in the above tort and KRW 300,000,000 from the above amount.

According to the above facts, the plaintiff suffered actual damages from the non-party 2 from November 1, 2010 due to the non-party 1's refusal to withdraw the deposit, and the damages incurred only by compulsory execution against the plaintiff in the relevant case or the non-party 2. Thus, the claim for secondary damages was established from November 1, 2010. Therefore, even if the specific amount or scope of the claim for secondary damages was not determined on February 27, 2012, which is at the time of the donation contract of this case, and thereafter in related cases, even if the specific amount or scope of the claim for secondary damages was not determined, it shall be deemed that the claim for secondary damages was already established before the donation contract of this case, and it shall be subject to the obligee's right of revocation.

Nevertheless, the court below rejected the plaintiff's claim on the ground that the second claim for damages was established after the gift contract of this case and it cannot be the preserved claim of the obligee's right of revocation. In so doing, the court below erred by misapprehending the legal principles as to preserved claim of obligee's right of revocation, which affected the conclusion

4. Therefore, 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 Cho Jae-chul (Presiding Justice)