Requirements for real estate, bonds, etc. can be assessed as active property in determining whether the debtor's insolvency is insolvent.

In order to become a fraudulent act, the debtor's act of disposal of the debtor's property shall cause a decrease in the debtor's whole property and in short of joint security for claims, namely, the debtor's passive property shall be more than the active property. Thus, even if the debtor's active property among his active property at the time of his/her disposal of the property exceeds the creditor's amount of claims, the calculation of the active property shall be excluded from the active property that has no substantial property value and cannot act as joint security for claims, unless there are other special circumstances. If the property is a claim, it shall be included in the active property only if it is confirmed by reasonably determining whether it is certain to receive repayment.

Article 406 of the Civil Act

Supreme Court Decision 2000Da69026 Decided April 27, 2001 (Gong2001Sang, 1244 Decided October 27, 1956)

Korea

Defendant (Law Firm No. Mission, Attorneys Yellow-min et al., Counsel for defendant-appellant)

Daejeon High Court Decision 2000Na1424 delivered on April 27, 2001

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

On September 30, 1995, the non-party 1 sold to the non-party 4 lots of land owned by the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 2, the non-party 2, the non-party 3, the non-party 3, the non-party 3, the non-party 3, the land in the same location, and the land in one lot of land located in the same area on December 26, 1996, respectively.

On March 12, 1998, the tax secretary under the Plaintiff-affiliated 171,314,827 capital gains tax on the portion of the transfer of real estate in the year 1996, and on May 12, 1998, he/she respectively decided and notified 205,471,757 capital gains tax on the portion of the transfer of real estate in the year 1995, and Nonparty 1 was liable for capital gains tax on the aggregate amount of KRW 376,786,584.

On December 2, 1997, the non-party 1 donated the real estate (hereinafter referred to as the "real estate of this case") to the defendant, who is the wife, and completed the registration of ownership transfer on the ground of the above donation on December 9 of the same year. The non-party 1 and the defendant shared the agreement on December 22, 1997.

B. Furthermore, according to the evidence of the court below, although the non-party 1 was transferred to the non-party 1's active property at the time of the donation, it is difficult to view that the non-party 1 purchased the above real estate from the non-party 1 to the non-party 1's market price of 209,05,000 won in addition to the real estate of this case, the non-party 1's market price of 87,000,000 Won for 372.8m2 and the non-party 4's above 70,000 won, and the non-party 1's debt amount of 376,786,584 won for the non-party 1's non-party 1's non-party 1's non-party 1's non-party 6's non-party 9's non-party 9's non-party 1's non-party 6's non-party 1's non-party 1's non-party 1's non-party 1'.

2. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

In order to become a fraudulent act, the debtor's act of disposing of the debtor's property shall cause a decrease in the debtor's whole property and thus, the debtor's passive property shall be more than active property (see Supreme Court Decision 2000Da69026, Apr. 27, 2001). Thus, even if the debtor's active property among his/her active property at the time of his/her act of disposing the property exceeds the creditor's amount of claims, it shall be excluded from the positive property that cannot play a role as a joint security for claims because it has no real property value, unless there are any other special circumstances. If the property is a claim, it shall be included in the active property only if it is reasonably determined whether it is reliable and confirmed (see Supreme Court Decision 4289Sang208, Oct. 27, 195).

In accordance with the facts established by the court below, the non-party 1 had already made a report on the closure of the construction project of apartment and the court's decision on voluntary commencement of the sale of real estate owned by the non-party 1. Thus, the non-party company at the time of the non-party 1's donation is presumed to have been in excess of its obligation since the non-party 1 did not have a separate physical security, etc. as to the above claim held by the non-party company. Thus, it is reasonable to deem that the non-party 1 was difficult to receive the above claim for the non-party company for more than 2 years (According to the records, it can be known that the non-party 1 was not able to receive the above claim against the non-party company for more than 2 years at the time of the donation of this case). Further, even according to the records, there is no specific data as to whether the non-party 2, the non-party 3, and the non-party 4 agreed to pay the transfer income tax on behalf of the non-party 1.

Therefore, the court below should have deliberated more on the above issues and calculated the value of Nonparty 1’s active property. If it is found that Nonparty 1’s active property was exceeded the positive property at the time of the donation of this case, or that the joint security of claims was not sufficient due to the donation of this case, the court below should have deliberated and decided on whether Nonparty 1 and the Defendant had intention to harm or the scope of exercise of the right of revocation.

Nevertheless, the court below rejected the Plaintiff’s assertion as to the Plaintiff’s exercise of the Plaintiff’s right of revocation without examining the remaining issues at the end that it was concluded that the claim against Nonparty 1 was valueless or extinguished at the time of the instant donation, solely based on its stated reasoning, and did not err by misapprehending the legal principles on mistake of facts against the rules of evidence or obligor’s responsible property, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Of the grounds of appeal, the part pointing this out is with merit.

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

Justices Lee Yong-woo (Presiding Justice)