[1] Whether the subject claim is acknowledged as an effect of the impossibility of performance (affirmative)

[2] The case holding that the Credit Guarantee Fund may claim the return of dividends received by the Company A as a result of the exercise of the right to claim the refund of dividends, in case where the judgment in favor of the Korea Credit Guarantee Fund was finalized by seeking the cancellation of the registration of creation of a neighboring mortgage due to the return of the original property, and the real estate was sold to a third party through an auction procedure to exercise the security right in the related auction case

[1] The Korean Civil Code does not separately stipulate the right to claim compensation, other than the creditor's right to cancel the contract, as an effect of impossibility of performance, but there is no reason to deny the right to claim compensation.

[2] In a lawsuit seeking revocation of a fraudulent act filed by the Credit Guarantee Fund against Company A, where the judgment in favor of the court became final and conclusive by seeking revocation of the registration of the establishment of the neighboring mortgage due to the return of the original property, and the pertinent real estate was sold to a third party through an auction procedure to exercise the security right in the relevant auction case, the case holding that the Credit Guarantee Fund may claim for the return of dividends paid to the mortgagee as the right to claim for the registration of the cancellation of the establishment of the neighboring mortgage based on the final and conclusive judgment, in the event that the real estate was sold by auction procedure to exercise the security

[1] Article 390 of the Civil Act / [2] Articles 390 and 406 (1) of the Civil Act

[1] Supreme Court Decision 92Da4581, 4598 delivered on May 12, 1992 (Gong1992, 1849)

(Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

National Bank of Korea (Law Firm LLC, Attorneys Park Jae-chul et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2010Na13229 Decided July 27, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Although our civil law does not separately stipulate the right to claim compensation for the transfer of creditor and the right to cancel the contract as an effect of impossibility of performance, there is no reason to deny the right to claim the subject matter (see Supreme Court Decision 92Da4581, 4598 delivered on May 12, 1992, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence. ① The date of the closing of argument in the previous lawsuit is March 27, 2009, and the real estate in this case was sold through voluntary auction from the relevant auction case on July 17, 2009, so it becomes impossible for the plaintiff to cancel the registration of creation of a collateral security right in this case that the plaintiff sought to return the original property in the previous lawsuit against the defendant. ② Although the registration of establishment of a collateral security right in this case was completed after the establishment of a collateral security right in this case, the plaintiff sought cancellation of the registration of ownership transfer on the ground of fraudulent act, since the registration of ownership transfer in the name of the non-party 1 was completed, it cannot be deemed that the original property was impossible or considerably difficult to return the original property in this case due to the plaintiff's exercise of the right of revocation at the time of closing of argument in the previous lawsuit, and thus, it cannot be deemed that the plaintiff could not claim the damages of the previous auction case in this case because the plaintiff did not have any duty to claim for restitution.

In light of the above legal principles in light of the above facts, in case where the defendant's obligation to register the cancellation of the registration of the establishment of a new mortgage based on the judgment prior to the judgment which became final and conclusive upon the successful bid to a third party by the auction procedure becomes impossible, the plaintiff can claim the return of dividends paid to the defendant as a mortgagee based on the registration of establishment of a new mortgage based on the registration of establishment of a new mortgage to be cancelled as the exercise of the subject claim. According to the records, the plaintiff asserted in the complaint that "the mortgage contract of this case was already cancelled by the final and conclusive judgment as a fraudulent act, and the defendant changed to the right to claim dividends due to the progress of a voluntary auction, and thus the defendant sought the declaration of intention to transfer the right to claim dividends to the defendant to the non-party 2 as a means of restitution." The defendant submitted an application to change the purport and cause of the claim to "the defendant sought payment of dividends equivalent to the dividend amount received by the restoration to the original state." Thus, it is reasonable to view the plaintiff's claim as well as the plaintiff's claim.

Therefore, although the court below's explanation is somewhat unclear and inappropriate, the conclusion accepting the plaintiff's claim is acceptable, and there is no error in the misapprehension of legal principles as to the subject matter of a fraudulent act revocation lawsuit as otherwise alleged in the ground of appeal. Therefore, the defendant's ground of appeal cannot be accepted.

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 Min Il-young (Presiding Justice)