The meaning of “the date when the creditor becomes aware of the cause of revocation,” which is the starting point of the exclusion period in the exercise of creditor’s right of revocation, where the Korea Deposit Insurance Corporation, etc. exercises the creditor’s right of revocation against the debtor’s legal act as a preserved claim against the debtor, whether the starting point of the exclusion period should be determined on the basis of the employee’s awareness in charge of the business of collecting and preserving preserved claims, etc., in relation to the collection and preservation of preserved claims (affirmative in principle)

The “the date when the creditor becomes aware of the cause for revocation”, which is the starting point of the exclusion period in the exercise of the creditor’s right of revocation, refers to the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that the creditor would prejudice the creditor. In this case, it is insufficient to say that the creditor merely knew of the fact that the debtor performed a disposal act of the property, and that the debtor was aware of the existence of a specific fraudulent act and that the debtor had an intent to deception on the part of the debtor. Meanwhile, in the event the Korea Deposit Insurance Corporation, etc. exercises the creditor’s right of revocation with respect to a legal act against the debtor as the secured claim, barring any special circumstance where the Korea Deposit Insurance Corporation, etc. knew of the cause for revocation in relation to the starting point of the exclusion period, it shall be determined based on the employee’s awareness of the collection and preservation of the secured claim, etc., so if the employee in charge knows not only the debtor’s property disposal act but also the existence of a specific fraudulent act and that the debtor had expressed his intent to deception. This legal doctrine applies even if the agent appointed a bankruptcy.

Article 406(2) of the Civil Act

Supreme Court Decision 2003Da19435 Decided July 11, 2003 (Gong2003Ha, 1715), Supreme Court Decision 2015Da247707 Decided June 15, 2017 (Gong2017Ha, 1464), Supreme Court Decision 2016Da272311 Decided April 10, 2018 (Gong2018Sang, 861)

Korea Deposit Insurance Corporation (Law Firm LLC, Attorneys Kim Tae-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm KEL, Attorneys Kim-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2016564 decided February 9, 2018

Of the part against the defendant in the judgment of the court below, the part on the revocation of fraudulent act and restoration to the original state against the gift contract as stated in the attached Table Nos. 15 through 20, and 22 shall be reversed, and that part of the case shall

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

1. The “date when the obligee becomes aware of the cause for revocation”, which is the starting point of the exclusion period in the exercise of the obligee’s right of revocation, refers to the date when the obligee becomes aware of the existence of the obligee’s right of revocation, namely, that is, the date when the obligee becomes aware of the obligor’s fraudulent act with the knowledge that the obligee would prejudice the obligee. In this case, it is insufficient to say that the obligee merely knew of the obligor’s act of disposal of the property in order for the obligee to be aware of the cause for revocation, and it is also required to know that the obligor was aware of the existence of specific fraudulent act and that there was an intent to harm the obligor (see, e.g., Supreme Court Decisions 2003Da19435, Jul. 11, 2003; 2016Da272311, Apr. 10, 2018). Meanwhile, if the Korea Deposit Insurance Corporation, etc. exercises the obligee’s right of revocation against the obligor as a preserved claim, it is determined not only seven (15).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. From December 14, 2010 to September 18, 2011, Nonparty 1 was in office as the representative director and the chief executive officer of the Flad Mutual Savings Bank (hereinafter “instant Savings Bank”) and was in general control of the overall affairs of the Bank, such as loan, receipt, management, fund management, and execution, etc., and the Defendant is Nonparty 1’s spouse. Nonparty 1 was found guilty in the same court on January 14, 2013 on the grounds of criminal facts, such as: (a) Nonparty 1, while holding office as the representative director of the instant Savings Bank, etc.; and (b) lent money to Chod Enterprise Co., Ltd. without any adequate security; and (c) he was convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (combined); and (d) the violation of the Mutual Savings Banks Act on January 14, 2013.

B. On June 9, 2011, Nonparty 1 entered into a donation contract with the Defendant on the instant real estate, and in the future, the Seoul Western District Court completed the registration of transfer of co-ownership under the receipt of No. 32296 on June 10, 201. The aggregate amount of Nonparty 1’s active property as of June 9, 201, which was concluded on June 9, 2011, was KRW 758,152,642, and the aggregate amount of the negative property was KRW 623,00,000, but Nonparty 1 donated the instant real property equivalent to KRW 278,500,000 to the Defendant, thereby exceeding the positive property.

C. Meanwhile, the sum of KRW 167,50,000 in total over 26 occasions, as described in paragraphs (1) through (14), (21), (23) through (33) of the attached table of gift (hereinafter “instant table of gift”) from January 23, 201 to September 25, 2012 from the Defendant’s bank account (Account Number 2 omitted) was transferred from Nonparty 1’s Hyundai Securities Account (Account Number 3 omitted) to KRW 167,50,000 (hereinafter “instant KRW 1”). Moreover, the sum of KRW 167,50,000 in total was transferred from July 15, 201 to July 27, 2011 to the Defendant’s Hyundai Securities Account (Account Number 4 omitted). From July 15, 2011 to July 27, 2011 to KRW 15 to KRW 2057,500 (hereinafter “the sum”).

D. On September 7, 2012, the Savings Bank was declared bankrupt by Seoul Central District Court 2012Hahap97, and the Plaintiff was appointed as a trustee in bankruptcy of the Savings Bank around that time.

E. On September 14, 2012, the Plaintiff received financial transaction information from the Bank of Korea on Nonparty 1 and the Defendant. Thereafter, during the investigation period from October 12, 2012 to October 17, 2012, Nonparty 2, who inspected the Plaintiff’s property creation, investigated Nonparty 1’s property. The Plaintiff requested the Defendant to provide financial transaction information on the Hyundai Securities on October 15, 2012 during the said investigation period, and received it on October 15, 2012. The Plaintiff also requested Nonparty 1 to provide financial transaction information on the Hyundai Securities from October 16, 2012 to October 16, 2012.

F. According to such result of the property investigation, on November 6, 2012, the Plaintiff’s property registration statement sent under the Plaintiff’s name the Plaintiff’s president a letter of public notice stating that “the Plaintiff’s property registration statement of non-performing-related discovered property (harbord real estate) was sent by Nonparty 1 who donated the instant real estate to the Defendant on June 9, 201 by: (a) Nonparty 1 was the trustee in bankruptcy; and (b) on November 7, 2012, the Plaintiff sent a public notice of “the result of the fund flow investigation,” stating that “the financial flow is presumed to be a fraudulent act” under the Plaintiff’s name, stating that “the Plaintiff’s property registration statement of non-performing-related person was sent to him/her.” (c) On November 7, 2012, 2012, the trustee in bankruptcy was sent the first remittance during the period from January 23, 201 to September 25, 2011.”

G. On April 24, 2013, the Plaintiff filed the instant lawsuit seeking restitution against the Defendant, revoking each of the gift agreements on the instant real estate and the instant donation agreements on the instant money No. 1.

H. On December 16, 2013, the Plaintiff’s property record: (a) on December 16, 2013, the bankrupt bankruptcy trustee, appointed the bankrupt mutual savings bank’s agent, to be the addressee, additionally prepared a statement of transactions suspected of fraudulent act; and (b) sent the Plaintiff’s statement of “the discovery of persons related to fraudulent acts and notification of property related to fraudulent acts” under the Plaintiff’s president; and (c) the said statement

I. On December 8, 2014, the Plaintiff submitted to the first instance court a written application for modification of the purport of the claim seeking restitution, revoking each of the gift agreements on the instant No. 2 money.

3. A. Examining the following circumstances revealed from such factual basis in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff was aware of the fact that Nonparty 1 had been aware of the intent to harm the Plaintiff, at the latest around April 24, 2013, due to the act of disposal as to the instant claim No. 2, due to Nonparty 1’s lack of joint security due to the act of disposal as to the instant claim No. 2, thereby making it impossible to fully satisfy the claim, and that Nonparty 1 had been aware of the intention to harm.

(1) Inasmuch as Nonparty 2, who belongs to the Plaintiff’s property investigation, investigated Nonparty 1’s property status from October 12, 2012 to October 17, 2012, and received financial transaction information on Nonparty 1 from Hyundai Securities on October 16, 2012 during the said investigation period, it is obvious that Nonparty 1 had already known that Nonparty 2 had already transferred the instant amount to the Defendant.

(2) On April 24, 2013, the Plaintiff filed the instant lawsuit seeking revocation and reinstatement, deeming that the instant donation contract on the instant real estate concluded on June 9, 201 constituted a fraudulent act that causes a shortage of joint security for claims. Considering that each of the instant donation contract on the instant money No. 2 was concluded at the time when approximately one month elapsed from each of the instant donation contract was concluded, the Plaintiff seems to have known that, at the latest, Nonparty 1’s joint security was insufficient due to the transfer of the instant money No. 2 until the said lawsuit was filed.

(3) Since Nonparty 1, who had already been in excess of the debt around July 201, remitted the instant amount exceeding KRW 80 million out of the cash owned by him to the Defendant who was his spouse, Nonparty 1’s intent of death is presumed to be presumed. As long as the Plaintiff was aware that Nonparty 1, the debtor at the time of filing the instant lawsuit, disposed of a considerable portion of the cash owned by him, and that Nonparty 1 was in excess of the debt at the time of such disposition, it is reasonable to deem that Nonparty 1 was aware of Nonparty 1’s intention of death around that time.

(4) Nonparty 1 transferred KRW 9,00,000 to the Defendant once a month as indicated in paragraphs 1 and 2 of the gift list Nos. 1, 201, which was earlier than the month when the remittance of the instant money was possible. Nonparty 1 filed the instant lawsuit on April 24, 2013, asserting that the said remittance constituted a gift contract and constitutes a fraudulent act, and that the said remittance constituted a total of KRW 85,920,156,00,000 as at the time of the instant lawsuit, there was no room to deem that the Plaintiff was erroneous for the transfer of the instant money to the Defendant as at the time of the instant lawsuit, in view of the fact that the said remittance was remitted to KRW 2,00,00,000, as indicated in paragraph 3 of the gift list No. 3 of this case.

(5) Furthermore, the official document, prepared on December 16, 2013, stating “the notice of property found by the person in need of insolvency” is not only the official document prepared by the Plaintiff’s property creation, but also the official document prepared on August 19, 2013, stating “the notice of special investigation into property of the person in need of insolvency” around four months prior to the Plaintiff’s property creation. Thus, it is difficult to view that the Plaintiff was aware that the remittance of the instant money No. 2 constitutes a fraudulent act only when he received the above official document from another third party or received the above official document on December 16, 2013.

B. Nevertheless, solely on the grounds indicated in its reasoning, the lower court rejected the Defendant’s main defense against the Defendant’s defense that this part of the lawsuit was additionally instituted on December 8, 2014, which was subsequent to the lapse of the exclusion period of one year, and thus unlawful, on the grounds that the Plaintiff was aware of the fact that the gift contract on the second money was a fraudulent act for December 16, 2013.

In so determining, the lower court erred by misapprehending the legal doctrine regarding the initial date of the exclusion period or intent of deception in a lawsuit seeking revocation of a fraudulent act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

4. Therefore, the part of the judgment below against the defendant regarding the revocation of fraudulent act and restoration to original state with respect to the donation contract of No. 2 of this case is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating

[Attachment] List of Donations: Omitted

Justices Cho Jae-chul (Presiding Justice)