[1] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act

[2] Whether the conclusion of a credit card subscription contract can be viewed as a "legal relationship that serves as the basis for the establishment of a claim for the exercise of creditor's right of revocation" (negative)

[3] The case holding that where a debtor entered into a credit card subscription agreement with a creditor and was issued a credit card but did not pay the credit card price starting with using the only real estate after selling it, the credit card price claim is merely a claim that occurred after the fraudulent act and thus cannot be a preserved claim for fraudulent act

[1] In principle, a claim protected by the obligee’s right of revocation needs to be protected prior to the occurrence of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future, and in a case where a claim has been established by realizing the probability in the near future, such claim may also become a preserved claim of the obligee’

[2] Although a credit card subscription agreement includes basic matters concerning the issuance and management of credit cards, and the settlement of payments related to the use of credit cards, the credit card company's claims are not immediately established, and credit card sales claims established by a credit card holder to purchase goods or to obtain services from a credit card merchant using a credit card are transferred to a credit card company by the credit card merchant or by a separate legal relationship between a credit card company and a credit card merchant to obtain financing from a credit card company, it cannot be said that only a credit card subscription agreement constitutes "the legal relationship that forms the basis for establishing claims" as referred to in this context.

[3] The case holding that where a debtor entered into a credit card subscription agreement with a creditor and was issued a credit card, but later sold the only real estate, and thereafter the credit card price was in arrears, the credit card price claim is merely a claim that occurred after the fraudulent act and thus cannot be a preserved claim for fraudulent act

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

[1] Supreme Court Decision 200Da63516 decided Feb. 9, 2001 (Gong2001Sang, 637), Supreme Court Decision 2000Da37821 decided Mar. 23, 2001 (Gong2001Sang, 953), Supreme Court Decision 2001Da81870 decided Mar. 29, 2002 (Gong2002Sang, 102; 100Da4352 decided Apr. 12, 2002 (Gong202Sang, 1080), Supreme Court Decision 2002Da42957 decided Nov. 8, 200 (Gong203, 2055) and Supreme Court Decision 200Da4374370 decided Apr. 26, 200, Supreme Court Decision 2002Da437470 decided Apr. 26, 2002

Gangnam Agricultural Cooperative

Defendant (Attorney Kang Jae-won, Counsel for defendant-appellant)

Chuncheon District Court Decision 2004Na589 delivered on July 13, 2004

The judgment of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division.

1. The judgment of the court below

A. On January 6, 1997, the court below acknowledged the following facts: the Plaintiff used the credit card issued by the Nonparty for the payment of the price and fees for delay on the 27th day of each month; the Nonparty agreed to be paid with 25% interest per annum; the Nonparty delayed payment from May 2003; the Plaintiff notified the Nonparty of the bad credit amount due to delinquency on or around September 11, 2003; the Plaintiff’s card-related amount that was not paid by the Nonparty up to November 11, 2003 was 13,923,030 won ( principal 12,49,220 won + 250,79 won + damages for delay 1,173,011 won; the Nonparty concluded a sales contract with the Defendant on April 4, 2003 with the Defendant for the loan of KRW 300,000,000 won and the Nonparty’s real estate loan of KRW 400,300,000.

B. Based on the above facts, the court below determined that even if the non-party did not delay the credit card payment on April 4, 2003, which was the date of the conclusion of the contract of this case, the credit card purchase agreement of January 6, 1997, the Plaintiff continued to receive the credit card payment from the non-party on the 27th of each month under the credit card subscription agreement of January 6, 1997. Thus, the credit card purchase claim of this case is a preserved claim, and the non-party, which is the debtor's sole property in excess of the debt, can be a fraudulent act unless there are special circumstances to change the apartment of this case into money easily for consumption. The defendant's bad faith is presumed to be a beneficiary by the non-party's fraudulent act. Since each evidence alone is insufficient to recognize the defendant's good faith, the sales contract of April 4, 2003 between the defendant and the non-party should be revoked, and the defendant should restore the registration of ownership transfer in its name to its original state.

2. The judgment of this Court

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 2001Da81870, Mar. 29, 2002; 2002Da42957, Nov. 8, 2002).

However, according to the facts and records established by the court below, on January 6, 1997, before April 4, 2003, which was the date of the conclusion of the contract of this case, the non-party entered into a credit card subscription contract with the plaintiff and used it to purchase the credit card, and upon receipt of the price and fees, etc., the non-party entered into a credit card subscription contract with the plaintiff on 27th of each month. The non-party, upon delay, did not use the apartment of this case to the defendant prior to April 4, 2003, when the non-party sold the apartment of this case to the defendant, used the credit card to purchase the credit card or to provide cash services from April 26, 200, and since from May 2003, the non-party entered into the contract of this case, the credit card subscription contract merely includes the bonds related to the use of the credit card company's issuing and management of the credit card and the credit card company's purchase of the credit card, or constitutes the legal relationship between the credit card company's issuing and the credit card.

Therefore, even if the Nonparty had already entered into a credit card subscription contract with the Plaintiff on January 6, 1997 and received a credit card issuance, if the Nonparty was not using a credit card before selling the apartment of this case to the Defendant, and thereafter began to use the credit card in purchase of goods or cash services, etc. from April 26, 2003, and was in arrears from May 2003, the credit card payment claim is merely a claim that occurred after the fraudulent act, and thus, it cannot be viewed as a claim that is subject to the preservation of the fraudulent act.

Nevertheless, the court below erred by misapprehending the legal principles on preserved claims and credit card payment claims in creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor and thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Lee Han-gu (Presiding Justice)