[1] Court's explanation and cadastral duty as to legal matters

[2] The meaning of "the date when the creditor becomes aware of the cause of revocation" in the exercise of the right of revocation

[3] The case reversing the judgment of the court below which dismissed the lawsuit for revocation of a fraudulent act on the ground of the lapse of the exclusion period without giving the party an opportunity to state his/her opinion or exercising his/her right to explain, although the exclusion period of the lawsuit was not at issue between the parties to the lawsuit for revocation of the fraudulent act

[1] Article 136 (1) and (4) of the Civil Procedure Act / [2] Article 406 (2) of the Civil Act / [3] Article 136 (1) and (4) of the Civil Procedure Act, Article 406 (2) of the Civil Act

[1] Supreme Court Decision 94Da17109 delivered on October 21, 1994 (Gong1994Ha, 3070), Supreme Court Decision 2001Da1105 delivered on January 25, 2002 (Gong2002Sang, 559), Supreme Court Decision 2002Da41435 Delivered on January 10, 2003 (Gong2003Sang, 621), Supreme Court Decision 2004Da37676 Delivered on November 10, 205 (Gong205Ha, 1950) / [2] Supreme Court Decision 2001Da1239 delivered on November 26, 200 (Gong203Da18239 delivered on November 26, 2005), Supreme Court Decision 203Da12053137 decided Nov. 26, 2005)

Korea Life Insurance Corporation

Defendant

Gwangju District Court Decision 2004Na12512 Decided June 15, 2005

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

Article 136(1) of the Civil Procedure Act provides, “The presiding judge may ask the parties questions, in fact or in law, and urge them to testify, in order to clarify the litigation relations.” Article 136(4) provides, “The court shall give the parties an opportunity to state their opinions on the legal matters which are obviously deemed to be excessive by the parties.” Thus, where it is evident that the parties concerned have not proved due to negligence or misunderstanding or where there is no express dispute between the parties as to the matters to be the issue, the court shall question and urge them to present their opinions, and where the court intends to determine the propriety of claims on the grounds of the legal point of view which the parties did not know at all or anticipated, it shall give the parties an opportunity to state their opinions on the legal point of view, and where the court intends to determine the propriety of claims on the grounds of the legal point of view which the parties did not know at all or anticipated, and it constitutes an unlawful act of not properly conducting the hearing due to a failure to perform their duty of explanation (see, e.g., Supreme Court Decision 194Da170525, Oct. 217, 125, 1994.

In addition, in the exercise of the right of revocation, the "date when the creditor becomes aware of the cause for revocation" means the date when the creditor becomes aware of the requirements for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware that he would prejudice the creditor. Thus, it is insufficient to say that the creditor was aware of the cause for revocation merely by the debtor's act of disposal of the property, and that the legal act of the debtor is prejudicial to the creditor. In other words, the debtor's act of disposal of the property is an act detrimental to the creditor. In other words, it is required to be known that the debtor's act of disposal of the property was not sufficient to satisfy the claims completely due to the lack of joint security of the claim or the lack of the joint security already in the situation, and that the debtor was aware of the intent of deception (see Supreme Court Decisions 203Da19435, Jul. 11, 2003; 2003Da40286, Dec. 12, 200

The court below ex officio found, based on the evidence adopted, that Nonparty 2, a joint guarantor for the debt of this case against Nonparty 1, had completed the registration of ownership transfer on October 1, 2002, the real estate of this case, which is the only real estate of Nonparty 1, on the ground of sale and purchase, to the Defendant, who was the mother of Nonparty 1, and the Defendant revoked the lawsuit of this case on February 26, 2003 on the ground that the Plaintiff, a creditor of the above loan, “the Defendant would have repaid interest on behalf of Nonparty 1, and would not raise an objection even if the Plaintiff would take legal measures, such as a lawsuit seeking revocation of the fraudulent act on the real estate of this case,” and that the Plaintiff had already transferred the real estate of this case, which is the only property of Nonparty 2, at the time of preparation and delivery of the above written confirmation from the Defendant, and it was reasonable to view that Nonparty 2 had known that he had the intent to know about it, and that the lawsuit of this case was dismissed after the lapse of the exclusion period of this case.

However, in light of the records, even before the time of closing argument in the lower court, the parties only disputed whether the act of disposal of the instant real estate by Nonparty 2 constitutes a fraudulent act, and whether Nonparty 2 and the Defendant intended to harm the obligee. At the time of the preparation of the written confirmation, whether the Plaintiff was aware that the instant real estate was the only real estate of Nonparty 2, and whether the limitation period of the instant lawsuit was expired or not, the parties did not have been at all at all at all at issue, and the lower court did not provide the Plaintiff with an opportunity to state his opinion or exercise his right to explain.

In addition, even if the Plaintiff takes legal measures, such as a lawsuit seeking revocation of a fraudulent act, but the Plaintiff was prepared and issued by the Defendant with a written confirmation that the Defendant would not raise any objection thereto, the circumstances stated in the lower court’s holding that the instant real estate disposal act by Nonparty 2 may be deemed as having been doubtful by the Plaintiff, i.e., the act of causing the lack of joint security of claims or causing the lack of joint security that was already insufficient, but it is insufficient to readily conclude that the Plaintiff was aware of the fact that the instant real estate disposal act by Nonparty 2 constituted the aforementioned fraudulent act, and there is no other evidence to readily conclude that the Plaintiff was aware of it in the record.

Therefore, even if the court below, based on the evidence submitted by the court below until the time when the argument is closed, knew that the act of disposal of the real estate of this case by Nonparty 2 was committed a fraudulent act at the time when the plaintiff was prepared and delivered by the defendant, the court below should have tried more closely as to whether the real estate of this case was the only real estate of Nonparty 2 at the time of the preparation of the above agreement, and whether the plaintiff had already been investigated and known as to whether the real estate of this case was the only real estate of Nonparty 2 at the time of the preparation of the above agreement. However, the court below dismissed the lawsuit seeking the revocation of the fraudulent act of this case on the ground of the exclusion period even though it did not reach this point and it did not go against the plaintiff due to the judgment other than expected time from the legal point of view that the parties had never anticipated, and it did not affect the conclusion of the judgment. The ground of appeal pointing this out has merit.

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 Park Si-hwan (Presiding Justice)