2016Da2468 Revocation of Fraudulent Act

The trustee in bankruptcy in bankruptcy in B, who is the taking over of the lawsuit of the Credit Guarantee Fund

The European Credit Guarantee Fund

A

Law Firm astronomical, Counsel for the defendant-appellant

Attorney Lee Dong-young, Counsel for the plaintiff-appellant

Suwon District Court Decision 2015Na6365 Decided December 12, 2015

June 25, 2020

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are borne individually by each party.

Judgment ex officio is made.

1. Where multiple creditors have filed a lawsuit seeking revocation of a fraudulent act and restitution at the same time or at different time, these lawsuit does not constitute a double lawsuit, and the same claim raised thereafter does not become a benefit in the protection of rights by the mere fact that the judgment was rendered in favor of one creditor by demanding revocation of a fraudulent act and restitution to the original state with respect to the same fraudulent act, and the judgment became final and conclusive. However, where one creditor has obtained a favorable judgment in favor of the creditor in respect of the same fraudulent act, and the said judgment has become final and conclusive and the said judgment has completed restitution of property or value, the other creditor’s revocation and restitution to the original state will no benefit in the protection of rights to the extent that it overlaps (see, e.g., Supreme Court Decisions 2003Da19558, Jul. 11, 2003; 2007Da84352, Apr. 24, 2008).

This is an obligation after multiple creditors filed a lawsuit seeking revocation of each fraudulent act and restitution.

A declaration of bankruptcy is made with respect to each of the above litigation procedures taken over by a trustee in bankruptcy and changed to a lawsuit for denial. The same applies to cases where the judgment becomes final and conclusive after the trustee in bankruptcy won in one of them and the restoration to original state is completed.

2. The record reveals the following facts.

A. On July 19, 201, the Industrial Bank of Korea, a joint and several surety creditor of the debtor B, filed a lawsuit against the defendant for the correction of the distribution schedule (hereinafter referred to as "related lawsuit") by striking the amount of dividends against the defendant from the distribution schedule prepared on July 12, 201 in the instant voluntary auction procedure (hereinafter referred to as "instant distribution schedule") and distributing the same amount to the Industrial Bank of Korea, which was prepared on July 12, 201 for the revocation of fraudulent act and restitution to its original state with respect to mortgage contract in this case.

B. Since then, on October 25, 2013, the debtor B filed a petition for bankruptcy and application for immunity with the District Court Decision 2013Hadan3908 and 2013, the debtor was declared bankrupt by the above court on November 27, 2014. The trustee in bankruptcy in B transferred both the instant case and related litigation and changed the same to a lawsuit seeking restitution relating to the instant dividend table by exercising the right to set aside under Article 391 of the Debtor Rehabilitation and Bankruptcy Act.

D. After the remanding of the relevant lawsuit thereafter, the appellate court (the District Court Decision 2015451693) rendered a judgment to revise the instant distribution schedule by deeming that the instant contract to establish a mortgage concluded on October 13, 2017 between the Defendant and B becomes subject to the avoidance, and thus, the instant contract to establish a mortgage was subject to the avoidance. The said judgment became final and conclusive on November 3, 2017.

E. Accordingly, the decision of rectification of a distribution schedule was completed in the instant voluntary auction procedure. In the bankruptcy proceeding against B, each of the following decisions was made on June 21, 2018, and the decision of granting exemption was made on July 25, 2018, and the said decision of granting exemption became final and conclusive on August 17, 2018.

3. Examining the above facts in light of the legal principles as seen earlier, since the debtor B’s bankruptcy trustee in the lawsuit related to the contract to establish the mortgage of this case was judged in favor of the debtor and the judgment was finalized accordingly, the lawsuit of this case with the same contents was unlawful as there was no benefit of protecting the rights.

4. Therefore, without examining the grounds of appeal, we reverse the judgment of the court below without further proceeding to decide on the grounds of appeal. Since the Supreme Court is sufficient to directly render a judgment, the judgment of the court of first instance is revoked and the lawsuit of this case is dismissed, and the total cost of the lawsuit is borne by each party. It is so decided as

Justices Noh Jeong-hee

A person shall be appointed.