[1] The meaning of "the date when the creditor, which is the starting point for the exclusion period in the exercise of the right of revocation, becomes aware of the cause of revocation

[2] In order to recognize that an obligee was aware of the cause for revocation in the exercise of obligee's right of revocation, whether the obligor should also be aware of the existence of the intent of deception (affirmative), and whether the beneficiary or subsequent purchaser's bad faith should also be known (negative)

[3] In a case where a debtor disposes of real estate, which is the sole property, and the debtor's intention of disposal is presumed to exist, whether if the creditor knew of the debtor's only disposal of real estate, the debtor's intention of disposal can be acknowledged (affirmative)

[1] In the exercise of the obligee's right of revocation, "the date when the obligee becomes aware of the cause for the revocation" means the date when the obligee became aware of the requirement for the obligee's right of revocation, that is, the date when the obligor becomes aware of the fact that the obligee had committed a fraudulent act while

[2] In order for the obligee to be aware of the cause for revocation in the exercise of the obligee's right of revocation, it is insufficient to say that the obligor merely knows the fact that the obligee conducted an act of disposal of the property, and it is also necessary to know the existence of a specific fraudulent act and the fact that the obligor was aware of the intent of deception, but the obligee is not obliged to know the beneficiary or subsequent purchaser's bad faith.

[3] A debtor's act of offering real estate, which has already been in excess of his/her obligation, as payment in kind, to any one of the obligees becomes a fraudulent act in relation to other obligees, barring special circumstances. In particular, the debtor's act of selling real estate, which is his/her only property, and changing the debtor's sales of real estate, into money which is readily consumed is presumed to have the debtor's intent to cause fraudulent act against the creditor, barring special circumstances. Thus, if the creditor knew that the debtor sold real estate, which is the only property, was disposed of, it is reasonable to deem that the debtor

[1] Article 406 (2) of the Civil Code / [2] Article 406 of the Civil Code / [3] Article 406 of the Civil Code

[1] [2] Supreme Court Decision 88Da26475 delivered on September 12, 1989 (Gong1989, 1463), Supreme Court Decision 99Da53704 delivered on February 25, 200 (Gong2000Sang, 826), Supreme Court Decision 200Da15265 delivered on June 13, 200 (Gong200Ha, 1652) / [3] Supreme Court Decision 96Da2606, 2613 delivered on May 9, 197 (Gong197Sang, 1722), Supreme Court Decision 97Da5420 delivered on April 14, 198 (Gong198Sang, 1325) and Supreme Court Decision 9Da5995 delivered on April 195 (Gong1995 delivered on April 195, 195)

The Credit Guarantee Fund (Attorney Park Jong-dae, Counsel for defendant-appellant)

Defendant (Law Firm Han, Attorneys Sung-min et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na4254 delivered on December 7, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the non-party was registered as a resident of the apartment of this case as of October 21, 1994, which is the date of the bankruptcy of the common defendant Liber Industries Co., Ltd. (hereinafter referred to as the "Gu metal industry"), the main debtor, and the plaintiff had been aware of the fact of the sale and purchase of the apartment of this case and the transfer of ownership and the non-party's insolvency through the process of property investigation against the non-party on February 23, 1995, for which subrogation payment under credit guarantee was completed at the latest in accordance with the credit guarantee accident management regulations, etc., which are its own regulations. Thus, the non-party's defense that the lawsuit of revocation of the fraudulent act of this case filed on August 11, 1997, which had been rejected after the lapse of the exclusion period of the lawsuit of this case, was prepared, and there was no evidence to acknowledge that the plaintiff's fraudulent act of this case and the non-party's defense against the non-party.

2. However, it is difficult to accept the above determination by the court below as follows.

A. In the exercise of the right of revocation, the "date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for the right of revocation, i.e., the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that the creditor would prejudice the creditor. Thus, it is insufficient to say that the debtor merely knows that he/she conducted a disposal act of the property, and it is necessary to know the fact that the debtor was aware of the existence of a specific fraudulent act and that he/she had an intent to deceive the debtor (see, e.g., Supreme Court Decisions 9Da53704, Feb. 25, 200; 200Da15265, Jun. 13, 200). Furthermore, the creditor does not need to know the beneficiary or subsequent purchaser's bad faith.

In addition, an act of an obligor’s offering of real estate, the sole property of which is one of the obligees, which is one of the obligees, as payment in kind, constitutes a fraudulent act in relation to other obligees unless there are other special circumstances (see, e.g., Supreme Court Decision 96Da23207, Oct. 29, 1996). In particular, an obligor’s act of selling real estate, the sole property of which is one of the obligees, and changing it into money easily for consumption, barring special circumstances, is presumed to constitute a fraudulent act against the obligee and the obligor’s intent of deception is presumed (see, e.g., Supreme Court Decision 97Da54420, Apr. 14, 1998). Thus, if the obligee was aware of the fact that the obligor disposed of the real estate, the sole property of which is the obligor, barring special circumstances, the obligor was aware of the obligee’s intentional intent (see, e., Supreme Court Decision 96Da2606, 2613, Apr. 9, 199).

B. According to the reasoning of the judgment below and the record, the plaintiff investigated the company that dealt with the accident in case a credit guarantee accident occurred pursuant to the Credit Guarantee Accident Management Rules (Evidence B No. 12), and conducted an investigation of the property as to the person related to the debt subject to the exercise of the right to indemnity pursuant to the Credit Guarantee Management Rules (Evidence B No. 13) and conducted an investigation of the property as to whether the person related to the debt pursuant to the above provisions. Meanwhile, the plaintiff investigated the property of the person related to the debt under the above provisions as of October 21, 1994 and thereafter, knew that the non-party had no other property by selling the apartment of this case, which is the only property of his woman, to the defendant. However, if the plaintiff knew that the apartment of this case was sold to the defendant as the only property of the non-party, barring any special circumstance, the plaintiff should have known that the act of selling the apartment of this case constitutes a fraudulent act of the non-party as well as the intention of the non-party.

C. Therefore, the court below's rejection of the defendant's defense against the defendant's exclusion period even though it acknowledged the fact that the old metal industry had investigated the non-party's property according to the non-party's bankruptcy, without properly examining the sale of the apartment of this case to the defendant, is erroneous in the misapprehension of legal principles as to the starting point of the exclusion period in a lawsuit seeking revocation of a fraudulent act or failing to exhaust all necessary deliberations, and it is obvious that such illegality affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)