The burden of proving the bad faith of the beneficiary or subsequent purchaser in a lawsuit seeking revocation of a fraudulent act

In a lawsuit for revocation of a fraudulent act, the creditor who asserts the revocation of the debtor's bad faith has the burden of proof, but the beneficiary or the subsequent purchaser is not the creditor, but the beneficiary or the subsequent purchaser is the burden of proving the good faith.

Article 406 of the Civil Act, Article 261 of the Civil Procedure Act

Supreme Court Decision 87Meu1380 Decided April 25, 1988 (Gong1988, 888) Supreme Court Decision 87Meu1489 Decided February 28, 1989 (Gong1989, 519) (Gong16276 Decided February 12, 1991)

Samsung C&C Co., Ltd.

Kim Jong-si and two others (Attorney Kim Jong-he et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na5150 delivered on October 18, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The defendants' attorney's grounds of appeal are examined.

In full view of the reasoning of the judgment of the first instance as cited by the court below and the reasoning of the judgment below, the court below acknowledged the fact that the non-party Hwang Jae-ho concluded each mortgage contract with the defendants as to the real estate of this case, which is its whole property, at the time of the original adjudication, and completed the establishment registration of each collateral at the time of the original adjudication with the defendants, and held that the act of offering the real estate of this case, which is the joint security of creditors, to the defendants, part of the creditors, constitutes a fraudulent act against the plaintiff, who is another creditor, barring any special circumstances. The court below rejected the evidence consistent with the defendants' defense that the defendants did not know that each

In a lawsuit seeking revocation of a fraudulent act, the creditor who asserts the revocation of the debtor's bad faith has the burden of proving that the beneficiary or the subsequent purchaser is bad faith, not the creditor, but the beneficiary or the subsequent purchaser is liable to prove the fact that the beneficiary or the subsequent purchaser is bad faith (see, e.g., Supreme Court Decisions 90Da16276, Feb. 12, 1991; 87Meu1489, Feb. 28, 1989; 87Meu1380, Apr. 25, 198).

In light of the records, the court below's fact-finding and decision as to the defendants' bona fide defense is just and there is no violation of the rules of evidence and misapprehension of the legal principles as to the protection of bona fide acquisitor as otherwise alleged in the ground of appeal.

Therefore, all appeals are 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 Song Jin-hun (Presiding Justice)