[1] Meaning of “the date when the obligee became aware of the cause for revocation” in the exercise of the obligee’s right of revocation, and in a case where, as a result of the obligee’s investigation of the obligor’s property status, it was confirmed that the establishment registration of a mortgage in the name of a third party on certain real estate during the provisional seizure of the obligor’s property was completed while the obligor had already been aware that the real estate value owned by the obligor was less than the total amount of the obligor’s claim, whether the obligee should

[2] In a case where Gap bank, the creditor Eul, completed a provisional seizure registration for all the real estate owned by Eul corporation, the debtor Eul, and stated in the application, etc. that "the debtor bears a large amount of debts according to the identity of the debtor, and it is likely that execution will be impossible even if it is judged that provisional seizure is rendered a favorable judgment if it is urgently attached, it would be impossible to execute the provisional seizure even if it is held a favorable judgment," and where the registration of establishment of a neighboring mortgage in Byung's name was completed at the time of the provisional seizure registration, the case holding that Gap bank should be deemed to have become aware of Eul's fraudulent act and intent to injure Eul

[1] The "date when the obligee becomes aware of the cause for revocation" in the exercise of the obligee's right of revocation refers to the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act while knowing that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that the obligor conducted a disposal act of the obligor's property, and that such a legal act constitutes an act detrimental to the obligee. In other words, it is necessary to know that the obligor would not fully satisfy the claim due to a lack of joint security of the claim or a lack of joint security already in the situation, and that there was an intent to harm the obligor, and that there was an intention to harm the obligor. However, the obligee does not have to know the beneficiary or subsequent purchaser's bad faith on the ground that the obligee was aware of the obligor's property status as a result of the obligor's investigation. In addition, if the obligee confirmed that the establishment registration of a mortgage was completed under the name of a third party on some real estate in the process of provisional seizure, barring any special circumstances, it is reasonable to view that the obligor was aware of a fraudulent act.

[2] In a case where Gap bank, the creditor, completed a provisional attachment registration for all of the real estate owned by Eul corporation, the debtor Eul, and stated in its application that "the creditor bears a large amount of debt to other debtor, so it would be impossible to execute the provisional attachment even if the provisional attachment was rendered a favorable judgment later unless it was immediately executed." At the time of the provisional attachment registration, the provisional attachment registration was completed in the name of Byung, including the establishment registration for the real estate under the name of the third party, the case holding that Gap bank, the main purpose of which was credit business, was to investigate Eul's property status as the only property of Eul corporation, and it was sufficiently known that the net asset value as the joint collateral for the real estate owned by Eul was less than its claim amount, and the bank could not be seen as being aware that the provisional attachment registration was completed due to the lack of any other special circumstance, and thus, it could not be seen that Gap bank's joint collateral value as the joint collateral at the time of the provisional attachment registration had been excluded even if it had not been aware of the provisional attachment registration period.

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

[1] Supreme Court Decision 2004Da66490 Decided March 25, 2005

New Bank of Korea (Law Firm LLC, Attorneys Kim Byung-ju et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Kim Sung-sung, Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na14086 decided September 6, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

In the exercise of the obligee's right of revocation, "the date when the obligee becomes aware of the cause for revocation" means the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act while being aware that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that the obligor conducted a disposal act of the obligor's property, and that the juristic act constitutes an act detrimental to the obligee. In other words, it is necessary to know that the obligor cannot satisfy the claim completely due to the deficiency in joint security of the claim or the lack of joint security already in the situation, and that there was an intent to harm the obligor. However, it is not necessary that the obligee is aware of the beneficiary or subsequent purchaser's bad faith on the ground that the obligee had an intention to harm the obligor. In addition, if the obligee had confirmed that the establishment of a mortgage was registered in the name of a third party on some real estate in the process of provisional seizure, compared with the total amount of the obligor's property as a result of investigating the obligor's property status, it is reasonable to 2005.

According to the reasoning of the judgment below and the record, the plaintiff extended 50 million won to L&C Co., Ltd. (hereinafter " L&C") on December 20, 206 and did not obtain real estate as security. Upon the plaintiff's request, the provisional attachment registration of 20 billion won for all of the real estate owned by L&C (hereinafter "provisional attachment") including the real estate listed in the separate list of the judgment below was completed at the time of 200 billion won (hereinafter "the provisional attachment of this case"), and the provisional attachment registration of 50 million won was completed at the time of 20 billion won (hereinafter "the provisional attachment of this case"), and at the time of 200 million won for the establishment of the provisional attachment registration of 20 billion won under the name of Defendant 1, which was the only maximum debt amount at the time of 20 million won for the provisional attachment of this case, each of the reasons for the establishment of the provisional attachment registration of 20 billion won and 300 million won for the establishment of the provisional attachment of this case.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff, one of the main business activities of the credit business, was aware of the Plaintiff’s net asset value of the instant provisional seizure real estate as joint collateral in the provisional seizure process of this case and Defendant 1’s registration of this case, by confirming that the instant provisional seizure real estate including the instant real estate was the only property of LAWC, and that the secured obligation of the real estate, which was completed in the name of a third party with respect to the said real estate, falls short of the Plaintiff’s net asset value as joint collateral of the instant provisional seizure. Unless any other special circumstance exists, the Plaintiff could be aware of the circumstances that it was impossible to fully satisfy the claim due to the lack of the joint collateral registration of this case on the instant real estate due to the completion of the registration of the instant provisional seizure of this case, and the intention to commit such fraudulent act was also known.

Thus, the plaintiff's lawsuit for the cancellation of the plaintiff's fraudulent act against the real estate in this case filed on March 10, 2010 after 1 year from October 17, 2008, which can be seen as the plaintiff's knowledge of the fraudulent act of LAWC, is unlawful because it imposed the exclusion period. However, the court below rejected the defendants' defense against the exclusion period of the defendants just for the reasons stated in its reasoning, which affected the conclusion of the judgment by misapprehending the legal principles as to the starting point of the exclusion period of the lawsuit for the cancellation of the fraudulent act or failing to exhaust all necessary deliberations.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Poe-dae (Presiding Justice)