In a case where the transfer of a damage claim due to an intentional tort constitutes a fraudulent act, whether the obligor of the damage claim may seek revocation of the transfer of claim by exercising the right of revocation against the assignee of the claim as a separate creditor against the transferor of the claim, and seek compensation for the value in his/her own future by means of restitution

The obligor of a damage claim arising from an intentional tort cannot set up against the obligee by set-off against the obligee (Article 496 of the Civil Act). However, in the event that the claim is transferred as a result, it cannot be set-off against the assignee (see Article 451(2) of the Civil Act). However, in the event that the assignment of claim constitutes a fraudulent act, the obligor of a damage claim arising from a tort seeks revocation by exercising the obligee’s right of revocation against the assignee as a separate obligee against the assignee of the claim, and seeks reimbursement of the value directly in his/her own future by means of restitution following the revocation does not violate Article 496 of the

Articles 406, 451(2), and 496 of the Civil Act

KKBC Co., Ltd.

No. 200,000

Suwon District Court Decision 2010Na25367, 25374 decided December 15, 2010

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

The obligor of a damage claim arising from an intentional tort cannot set up against the obligee by set-off against the obligee (Article 496 of the Civil Act) that claim cannot be set-off against the assignee in the event that the claim is transferred as a result of such set-off (see Article 451(2) of the Civil Act). However, in the event that the assignment of the claim constitutes a fraudulent act, the obligor of the damage claim seeks revocation by exercising the obligee’s right of revocation in the position of the obligee against the transferor of the claim, and seeks reimbursement of the value directly in his/her future by the method of restitution following such revocation, and thus, it is permissible to set-off

The judgment below to the same purport is just, and it is not erroneous in the misapprehension of legal principles as to the claim prohibited from offset.

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 Cha Han-sung (Presiding Justice)