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The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
The grounds of appeal are examined.
1. As to the third ground for appeal
A. The "date when the obligee becomes aware of the cause for revocation", which is the starting point of the exclusion period for the exercise of the obligee's right of revocation, means the date when the obligee becomes aware of the requirement for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor
However, it is a fraudulent act unless there are special circumstances that the debtor sells real estate, which is the only property in excess of his/her obligation, and alters it into money easily consumed.
In addition, the obligor's intention of deception, which is a subjective requirement for fraudulent act, is aware that there is a shortage of joint security for claims, and it is not necessary to avoid or intend to prejudice the obligee.
Therefore, in a case where a debtor sells real estate, which is the only property, and alters the money easily to consume, the debtor's intent to understand is presumed. Thus, if the debtor disposed of real estate, which is the only property, and the creditor knew that there was no particular property other than the real estate, the creditor, barring special circumstances, should be deemed to have known that the debtor knowingly committed a fraudulent act, i.e., the cause for revocation
(1) Article 202 of the Civil Procedure Act provides that the principle of free evaluation of evidence, which is declared by Article 202 of the same Act, shall not be bound by the rules of formal and legal evidence, does not allow a judge’s arbitrary judgment. Thus, the establishment of facts shall be in accordance with logical and empirical rules based on the ideology of justice and equity, based on the evidence that has been admissible for legitimate examination of evidence, and even if the fact-finding belongs to the discretion of the fact-finding court, it shall not go beyond the limits of the fact-finding.