(영문) 대법원 2017.1.25.선고 2016다211408 판결

1. Whether an obligor’s insolvency is determined as at the time of the fraudulent act in a creditor revocation lawsuit (see, e.g., Supreme Court Decisions 2000Da69026, Apr. 27, 2001; 2010Da64792, Jan. 12, 2012). The burden of proof lies on the obligee (see, e.g., Supreme Court Decision 2005Da686, May 31, 2007).

In addition, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act means that it does not need to be linked to the formal and legal evidence rules, and it does not allow a judge’s arbitrary judgment. Thus, the fact finding shall be in accordance with logical and empirical rules based on the principle of justice and equity, based on the admissible evidence that has gone through legitimate evidence examination procedures, and even if the fact finding falls under the discretion of a fact-finding court, it shall not exceed the limit thereof (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. The current status (Evidence A No. 14) regarding A submitted by the Plaintiff at the lower court includes: (a) the reference date on January 14, 2015; (b) the relevant person; (c) the relevant person; (d) the information on default on the grounds for registration; (e) the date of receipt; (d) July 24, 2013; (e) the registration amount of KRW 1,421,030,00; and (e) the overdue amount of KRW 0; (e) the registration amount of KRW 1,421,03,00; (e) the registration amount of KRW 1,421,03,00; (e) the registry, the national bank; (f) the number AD; (f) the relevant person; (f) the date of receipt; (f) the information on default on the grounds for registration (number of shares); and (f) the registration amount of KRW 876,410,000; and (f) the national bank account number and AD.

B. However, there is no indication as to the meaning of each item, such as the date of occurrence, related persons, date of receipt, registration agency, etc. as mentioned above, the particulars mentioned therein, and the issuer, endorser, creditor, etc. of the said promissory note and number of units.

C. The lower court recognized that A was liable for KRW 2,297,440,00 to the National Bank of Korea (hereinafter “National Bank”) on August 8, 2013, which was the date of concluding a sales contract (hereinafter “the instant sales contract”), based on the foregoing “amount of registration for the cancellation of the contract and the current status of the amount of unpaid arrears,” and determined that A entered into the instant sales contract in excess of obligations.

3. Examining these facts in light of the legal principles as seen earlier, it is difficult to ascertain whether A was involved in the registered amount of unexploded registration and the current status of unexploded arrears only, and whether A was liable for debts corresponding to the registered amount at the time of the instant sales contract, and whether A was insolvent at a national bank at the time of the instant sales contract. For this reason, the Defendant alleged that the aforementioned registered amount should not be recognized as a negative property A. Therefore, the lower court should have deliberated clearly by having the Plaintiff clarify the meaning and the meaning of each item stated in the “the current status of the amount of unexplodedd registration and the outstanding amount of unexploded arrears,” and then should have determined whether A was liable for such debts to the national bank at the time of the instant sales contract, and whether A was insolvent.

4. Nevertheless, the lower court, without examining and determining the above circumstances properly, concluded that A was liable for debts equivalent to the above registered amount at the time of the instant sales contract with only “the registered amount and the current status of unpaid arrears”, and determined that A was insolvent on this premise. Therefore, the lower court erred by misapprehending the legal doctrine on the burden of proof of debtor’s insolvency in a lawsuit seeking revocation of a fraudulent act, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence by violating logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. Therefore, 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 on the bench.