Whether a specific right to claim the right of revocation has occurred solely on the basis of the fact that a request for collection of a bill of exchange or a claim (payment presentation) has been made against a third party debtor (negative)

In principle, it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of the fraudulent act, there is a high probability that there has already been a legal relationship which serves as the basis of establishment of the claim, and that the claim should be established in the near future, and where a claim has been established in the near future due to the realization of the probability, the claim may also be preserved claim. The obligation to pay the collection amount owed by the obligor to the mandator is a specific case where the obligor receives it from the third obligor. Thus, the fact of the request for collection or the third obligor's claim (payment presentation) does not constitute a specific right that can be a preserved claim of the obligee.

Article 406 of the Civil Act

Supreme Court Decision 63Da423 delivered on September 26, 1963, 98Da56690 Delivered on April 27, 199 (Gong199Sang, 1041) Supreme Court Decision 2003Da61931 Delivered on September 28, 2005 (Gong2005Ha, 169)

Plaintiff (Law Firm Han, Attorneys Song Hong-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Song-tae, Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na82310 decided April 23, 2009

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

We examine the grounds of appeal.

In principle, it is required that a claim that can be protected by the obligee's right of revocation has arisen before an act that can be viewed as a fraudulent act was conducted. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that forms the basis of establishment of a claim, and that the claim should be established in the near future, and where a claim has been created in the near future due to its probability in reality, the claim can also be preserved claim (see Supreme Court Decision 98Da56690, Apr. 27, 1999, etc.). The obligation of the obligor who is requested to collect a bill of exchange to pay the collection amount to the mandator is only a specific case where the obligor has received it from the third obligor (see Supreme Court Decisions 63Da423, Sept. 26, 1963; 2003Da61931, Sept. 28, 2005; 2003Da61931, etc.) or 3).

In light of the above legal principles and the facts acknowledged by the court below, the non-party to whom the reorganization claim in this case was transferred by the plaintiff pursuant to the collection delegation agreement with the plaintiff shall collect the reorganization claim in this case at the due date and pay it to the plaintiff cannot be a preserved claim against the creditor's right of revocation regarding the transfer of the above reorganization claim between the non-party and the defendant. Thus, the plaintiff's right of revocation in this case cannot be accepted.

The judgment of the court below that rejected this part of the plaintiff's claim is somewhat unclear in its reasoning, but its conclusion is justified.

The court below did not err in the misapprehension of legal principle as to the eligibility of the obligee's right of revocation as alleged in the ground of appeal.

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 Yang Chang-soo (Presiding Justice)