Benefits of protecting the rights of lawsuits against revocation of fraudulent act and methods of restitution;

If compensation for the value has been made through the settlement recommendation or mediation of the full bench among the pendings of the lawsuit for revocation of fraudulent act filed by another creditor, the subsequent lawsuit for revocation of fraudulent act shall be dismissed as there is no benefit of protection of rights to the extent that it overlaps with the foregoing.

§ 406. Revocation of Civil Code

2017Na46884 Revocation of Fraudulent Act

Korea

1. Lighting-○;

2. △△△△; and

November 23, 2017

December 21, 2017

1. Revocation of a judgment of the first instance;

2. Of the Plaintiff’s primary claims against the Defendants, the part of the Plaintiff’s claim for revocation of fraudulent act and restitution within the scope of KRW 30,000 shall be dismissed, respectively, and the remainder shall be dismissed.

3. The agreement on the division of inherited property concluded on August 21, 2014 with respect to 3/7 shares of the real estate listed in the separate sheet between the Defendants and AA shall be revoked within the limit of KRW 140,571,428.

4. The Defendants shall pay each of the Plaintiff 70,285,428 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of full payment.

5. The plaintiff's remaining conjunctive claims against the defendants are dismissed.

6. All costs of the lawsuit are borne by the Defendants.

1. Purport of claim

The primary purport of the claim is to cancel the agreement on the division of inherited property concluded on August 21, 2014 with respect to 3/7 shares of the real estate listed in the separate sheet between the Defendants and AA (SA July 7, 1942), and the Defendants implement each procedure for the cancellation of ownership transfer registration completed on September 1, 2014 with respect to 3/14 shares of the real estate listed in the separate sheet with respect to AA as stated in the separate sheet.

Preliminary Claim: The Defendants and AA cancel the agreement on the division of inherited property concluded on August 21, 2014 with respect to 3/7 shares of the listed real estate in the separate sheet within the limit of 140,571,429 won, and the Defendants pay to the Plaintiff 140,571,429 won and the amount calculated at the rate of 5% per annum from the day following the date the judgment of this case became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's main claim and the conjunctive claim are all dismissed.

1. Quotation of the judgment of the first instance;

The reasoning of the judgment of this court is to add "real estate listed in the attached Form No. 10 of the judgment of the court of first instance" (hereinafter "real estate of this case") to "real estate listed in the attached Form No. 10 of the judgment of the court of first instance", and " August 21, 2013" of the same part 14 to " August 21, 2014", "5,00,000 of the maximum amount of the bonds" of the 6th 19th 19th 19 "the maximum amount of the bonds is 5,00,000", "the maximum amount of the bonds is 5,00,000", "the result of each order to submit financial transaction information to the company bank of the court of first instance", "the result of 8th 7 through 19th 8th 20th 8th 19th 20th 8th 200)", "the completion of extinctive prescription of the tax claim of this case and its waiver 15th 3th 20."

2. The addition;

(d) Revocation of fraudulent act and reinstatement;

1) Determination on the benefit of protection of rights

A) Each obligee meeting the requirements for obligee’s right to revoke the obligor’s disposal of his/her own right and may seek restitution. However, in cases where a creditor claims revocation and restitution of the same fraudulent act and the judgment in favor of the obligee became final and conclusive, and the said judgment has been completed accordingly, the obligee’s claim for revocation and restitution of the property shall have no benefit in the protection of rights to the extent that it overlaps (see, e.g., Supreme Court Decision 2004Da65367, Mar. 24, 2005).

The question is whether this legal principle can be applied to the case where other creditors who have filed a lawsuit for the revocation of a fraudulent act and the claim for restitution at the same time or at different times have completed the recovery of value through reconciliation recommendation or mediation in the lawsuit. However, Article 406(1) of the Civil Act, which provides that the revocation of a fraudulent act and the restoration to original state shall have a significant impact on the interests of a third party, which provides that the revocation of a fraudulent act and the revocation of a fraudulent act shall be subject to strict judgment of the requirements of the revocation right and shall be disclosed to other creditors. In the case where compensation for value has been made through the settlement recommendation or mediation of the adjudication division in the course of the lawsuit for the revocation of a fraudulent act filed by other creditors, the order does not have any matters related to the revocation of a legal act, but it is sufficient to give public notice to the third party. Accordingly, it is reasonable to deem that the subsequent revocation lawsuit is not in essence different from the case where compensation for value has been made based on a final judgment, and thus, it has no interest in the protection of rights (see, e.g., Supreme Court Decision 201363Da.

B) On June 19, 2015, the Seoul Central District Court 2014da209591 (hereinafter referred to as 'A') revoked the agreement on the division of the inherited property of this case against the Defendants as a fraudulent act, and filed a lawsuit for revocation of a fraudulent act seeking restitution, and the above court rendered a compulsory conciliation decision on June 19, 2015 that the Defendants would pay KRW 15,000,000 to Aaa respectively. As the above compulsory conciliation decision became final and conclusive on July 9 of the same year, the Defendants paid KRW 30,00,000 to Aa on the 29th of the same month, or there is no dispute between the parties, or that the Defendants paid KRW 27,28 (including the serial number) and the entire purport of all pleadings.

According to the above facts, among the plaintiff's primary claims against the defendants, the scope of the plaintiff's restoration of which has already been completed according to the above compulsory adjustment decision overlaps with the part of KRW 30,000,00, is unlawful as there is no benefit of protection of rights.

(ii) the method of revocation of fraudulent act and restitution to original state;

A) Determination as to the remainder of the main claim

In a case where a juristic act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act is committed on real estate on which a mortgage is established, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of the general creditors and would result in a violation of equity. Thus, an order to cancel the fraudulent act and seek compensation for the value thereof, within the extent of the balance obtained by deducting the secured debt amount of the mortgage (see Supreme Court Decision 98Da41490, Sept. 7, 199).

As to the instant case, the right to collateral security established at the time of the agreement on the division of the inherited property of this case is not cancelled even after the agreement on the division of the inherited property of this case, but still remains effective until the date of the agreement on the division of the inherited property of this case. However, the following circumstances are as follows: ① The aforementioned right to collateral security has been changed from the deceased to the defendant creation decoration according to the contract acceptance that was made after the agreement on the division of the inherited property of this case, ② the right to collateral security has already been partially restored to the original state in accordance with the compulsory decision on the revocation of the fraudulent act filed by Aaa after the agreement on the division of the inherited property of this case; ② if the right to collateral security established at the time of the agreement on the division of the inherited property of this case had the Defendants implement the procedure for the cancellation of the ownership transfer registration by the method of restitution, it is unreasonable to assume the Defendants liable for damages exceeding the profits accrued to the Defendants; ③ It is not clearly unfavorable to the Defendants to return the remaining amount of share transfer registration of this case.

B) Judgment on the Plaintiff’s conjunctive claim

In this case, it is necessary to restore the property to its original state in such a way as to compensate the equivalent amount of the value of the object of the fraudulent act.

If the amount of the preserved claim claimed by the Plaintiff is KRW 182,906,780,00, which is the value of KRW 898,00,000, which is the amount of the secured debt of the right to collateral security (3/7) at the time of the closing of the instant argument, the amount of the joint secured debt of KRW 500,00,000, which is the amount of the secured debt of the right to collateral security (3/7), is KRW 170,571,428, r = (50,000 - - 50,000,000 - 3/7,00,000) x below the amount of the secured debt of the Plaintiff’s inheritance (3/7) at the time of the closing of the instant argument. Here, the portion that can be recovered as a joint security should be excluded from KRW 30,00,000,000, which is the part of the real property of this case.

Therefore, the agreement on the division of inherited property of this case shall be revoked within the scope of KRW 140,571,428. The Defendants are obligated to pay to the Plaintiff 70,285,714 won each (=140,571,428 won x 1/2) and damages for delay calculated at the rate of 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment (the Plaintiff sought against the Defendants payment of KRW 140,571,429 per annum, but it is difficult to view that the agreement on the division of inherited property corresponding to fraudulent act is an indivisible obligation, and therefore, the obligation to compensate for value falls under the installment obligation).

3. Conclusion

Therefore, the part of the plaintiff's claim for revocation of the fraudulent act and restitution of the original claim against the defendants within the limit of 30,000,000 won is unlawful, each of them is dismissed, and the remainder of the main claim is dismissed without merit. The plaintiff's conjunctive claim against the defendants can be accepted within the scope of the above recognition, and the remainder of the claim is dismissed as it is without merit. The judgment of the court of first instance is unfair in conclusion, and it is so decided as per Disposition by the plaintiff's preliminary claim and ordering the defendants to pay the above amount.