The method of restitution according to the exercise of obligee's right of revocation in cases where the third-party obligor deposits his/her obligations in combination with the method of restitution in cases where, although the distribution schedule was finalized by participating in the distribution in the auction procedure based on the right to collateral acquired by a beneficiary by a fraudulent act, the dividends are not actually paid due to the obligee's exercise of obligee's right of revocation in cases where

[1] Article 406 (1) of the Civil Code

Supreme Court Decision 97Da8687 delivered on October 10, 1997 (Gong1997Ha, 3420) Supreme Court Decision 2003Da6200 Delivered on January 27, 2004 (Gong2004Sang, 434) Supreme Court Decision 2004Da9398 Delivered on June 25, 2004 (Gong2004Sang, 1242)

Kim Jong-sung et al. (Attorneys Cho Young-gu et al., Counsel for the defendant-appellant)

Choi Dong-jin (Attorney Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2002Na13324 delivered on June 26, 2003

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

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

1. According to the reasoning of the judgment below, in full view of the adopted evidence, the court below found that the court below: (a) prepared a distribution schedule that distributes dividends of KRW 1,849,895,802 to the defendant on January 19, 2001; and (b) decided on February 2, 2001, on the ground that the seizure of the claim to receive dividends from the defendant and Han Jong-dong Co., Ltd. (hereinafter referred to as the " Han-dong"), one of 1,852,06,293 won (hereinafter referred to as the "the building of this case"), which was owned by Tae-dong, Busan District Court, for the 68-1st and 535m2,000 above ground buildings (hereinafter referred to as the "the building of this case"), which were acquired by the beneficiary of this case by means of fraudulent act or the interest on the dividend payment until the date of deposit thereof, and thus, (c) decided that the defendant was liable to receive dividends from the beneficiary of this case's auction procedure.

2. Where a beneficiary participates in the distribution of dividends based on the right of revocation acquired by means of a fraudulent act with the debtor in an auction procedure, but the distribution schedule became final and conclusive, but it was not actually paid the dividends due to the creditor's provisional disposition prohibiting the payment of dividends, the method of restitution following the creditor's exercise of the right of revocation should be done not immediately order the payment of dividends to the beneficiary but by returning the right to claim the payment of dividends acquired by the beneficiary to the debtor. Ultimately, this would be the form of claiming the debtor to transfer the right to claim the payment of dividends and notify the transfer of the assignment of the claim (see Supreme Court Decisions 97Da8687 delivered on October 10, 1997, 2003Da6200 delivered on January 27, 200, etc.). The third debtor's right to claim the payment of dividends is not the right to claim the payment of the deposit but the right to claim the payment of dividends is not the right to claim the payment of dividends and the right to claim the payment of dividends shall be returned in accordance with the right of revocation.

However, according to the facts duly admitted by the court below, the auction court deposited for execution as above on the ground of the competition of seizure, and the plaintiffs, on January 16, 2001, seized the plaintiff's damage claim against the defendant among the amount to be distributed to the defendant in the auction procedure of the above real estate auction, with the claim for compensation for the damage corresponding to the amount of the claim corresponding to the amount of the claim. Thus, if the above circumstances are the same, the method of restitution following the plaintiffs' exercise of the right for revocation of creditor's right of this case does not order the defendant who is the beneficiary to pay the dividend immediately to the defendant, but must return the right to claim for

Nevertheless, the court below recognized the compensation for the value of the defendant as the restitution due to the cancellation of the fraudulent act in this case. In so doing, there is an error of law by misunderstanding the legal principles as to the restitution method due to the cancellation of the fraudulent act. Therefore, the ground of appeal pointing this out has merit.

3. 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 Zwon-won (Presiding Justice)