2015Da10134, cancellation, etc. of ownership transfer registration.

Attorney I in bankruptcy of debtor D, who is the taking over of the lawsuit of A,

B

Cheongju District Court Decision 2013Na6477 Decided December 12, 2014

June 24, 2015

The part of the judgment below regarding the conjunctive claim shall be reversed, and that part of the case shall be remanded to the Panel Division of the Cheongju District Court.

The grounds of appeal are examined.

1. Since the period for exercising the right of revocation as stipulated in Article 406(2) of the Civil Act is the period for filing a lawsuit, the court shall ex officio investigate whether the said period is observed, and the lawsuit for revocation filed after the said period expires shall be dismissed as illegal. Therefore, if there is doubt as to whether the said period is observed, the court may ex officio examine the evidence, to the extent necessary.

Meanwhile, 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 obligor becomes aware of the fact that the obligee committed a fraudulent act while being aware that it would prejudice the obligee. This is insufficient to simply recognize the fact that the obligor conducted a disposal of the property, and further, know the existence of a specific fraudulent act and the fact that the obligor had an intent to deceive the obligor (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

However, it becomes a fraudulent act against a creditor to dispose of real estate, which is the only property by the debtor's intention of deception, barring any special circumstances. Here, the debtor's intention of deception refers to recognizing the shortage of claims in joint collateral, and it does not require any intent or intent to impair the creditor. Therefore, if the debtor disposes of real estate, which is the only property, if the debtor disposes of the real estate, which is the debtor's sole property, and the debtor knew that there was no particular property other than that of the real estate, the creditor should be deemed to have been aware of the fact that the debtor disposed of the real estate, which is the only property, and the debtor knew that there was no specific property other than that of the real estate, the debtor committed a fraudulent act while knowing that the debtor would prejudice the creditor (see, e.g., Supreme Court Decision 2011Da109692, Apr

2. A. According to the reasoning of the lower judgment and the records, D and C concluded a sales contract on August 21, 2006 with respect to the land of this case and constructed the building of this case on the land of this case after obtaining a building permit, etc. in the name of C, and D, upon delegation from the Defendant on June 20, 201, entered into the instant real estate sales contract with C and the Defendant under the name of the Defendant to purchase the land of this case and the buildings of this case (hereinafter “the instant real estate”), and entered into the instant real estate sales contract on June 28, 201 with respect to the instant real estate on which the ownership transfer registration was completed in the Defendant’s future on June 28, 201, (3) as at the time of the preparation of the instant real estate sales contract, D bears the obligation for the Plaintiff to pay damages for delay to the Plaintiff, and (4) the Plaintiff did not file a complaint against the transfer of the instant real estate from the Plaintiff’s new real estate property, and (4) the Plaintiff alleged that the instant real estate was a transfer of this case.

In conclusion, D had accepted such assertion and received a disposition to the effect that there was no suspicion of evading compulsory execution on August 1, 2012. ⑤ On February 1, 2012, 2012, the Plaintiff filed a lawsuit against the Defendant for revocation of the instant real estate sales contract and for revocation of a fraudulent act seeking restitution under the Cheongju District Court Decision 2012Hun-2897, but withdrawn the said lawsuit on December 15, 2012. ⑤ On December 24, 2012, the Plaintiff filed the instant lawsuit seeking revocation of the ownership transfer registration under the Defendant’s name with respect to the instant real estate by subrogation of D and C by asserting that the registration of ownership transfer was null and void under the title trust agreement and thus, filed the instant lawsuit seeking revocation of the said ownership transfer registration by subrogation of D and C, and on May 14, 2014, added the conjunctive claim for revocation of the fraudulent act between the Defendant and D and seeking restitution.

B. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that D’s act of claiming ownership transfer registration of the instant land, the only property of the Plaintiff, and transferring ownership of the instant building to the Defendant, one of its creditors, constitutes a fraudulent act. D’s intent is presumed to have been presumed. Barring special circumstances, the Plaintiff filed a complaint against D under suspicion of evading compulsory execution, or filed a lawsuit seeking revocation of fraudulent act by the Cheongju District Court 2012Ga2897, the Cheongju District Court 2012, knowing that D, the debtor, was harmful to the Plaintiff, the obligee.

Therefore, the lawsuit of revocation of the fraudulent act filed on May 14, 2014 is unlawful, barring any special circumstances, as it was filed one year after the Plaintiff became aware of the cause of revocation.

Nevertheless, without examining whether the exclusion period is complied with, the court below held the conjunctive claim of this case on the premise that the conjunctive claim of this case is legitimate. This decision is erroneous by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the exclusion period of a lawsuit seeking revocation of a fraudulent act.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the lower judgment’s conjunctive claim is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Chief Justice Min Il-young

Justices Park Young-young

Justices Kim Jong-il