Whether a trucking transport business operator’s transfer of a trucking transport business is subject to revocation of a fraudulent act (affirmative in principle), and in cases where it becomes impossible to vest a trucking transport business operator’s transfer of the trucking transport business in an obligor due to both disposition and replacement after the fraudulent act, whether the revocation of the fraudulent act and the restitution to its original state is possible

According to the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 2011; hereinafter the same), the permission for trucking transport business is limited to the qualification to legally carry on trucking transport business. If the transfer of trucking transport business is carried out, a truck, which is a physical facility related to the trucking transport business, including the permission, is entirely transferred. Therefore, the court’s seizure of only the permission for leaving the trucking transport business by means of compulsory execution but is not appropriate for realization. However, according to Article 16 of the former Trucking Transport Business Act and Article 23 of the former Enforcement Rule of the Trucking Transport Business Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430, Dec. 31, 2011), a trucking business operator may transfer all or part of the trucking transport business including the permission, only with the report to the competent authority, and in cases where a trucking transport business, which is a physical facility of the trucking transport business, is enforced under Article 251 of the Civil Execution Act

Therefore, the act of a trucking transport business operator’s transfer of trucking transport business under excess of his/her obligation is subject to revocation of a fraudulent act, barring special circumstances that the truck, which is a physical facility, is excluded from the subject of transfer. Furthermore, in cases where the disposition or replacement of all the trucks, which are the physical facilities of trucking transport business after the fraudulent act, becomes impossible to vest in the obligor, the revocation of the fraudulent act

Article 406(1) of the Civil Act; Articles 3 and 16 of the former Trucking Transport Business Act (Amended by Act No. 10804, Jun. 15, 201); Article 23 of the former Enforcement Rule of the Trucking Transport Business Act (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430, Dec. 31, 201); Article 251 of the Civil Execution Act

Plaintiff

E. E.S. A.P. (Law Firm J&A, Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2012Na19427 Decided April 26, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 201; hereinafter the same), the permission for trucking transport business is limited to the qualification to legally carry on trucking transport business. If the transfer of trucking transport business is carried out, a truck, which is a physical facility related to trucking transport business, including the permission, is entirely transferred. Therefore, the court’s seizure of only the permission for leaving trucking transport business by compulsory execution is not appropriate, but the former Trucking Transport Business Act and Article 23 of the former Enforcement Rule of the Trucking Transport Business Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430, Dec. 31, 2011; hereinafter the same) provides that a trucking business operator may transfer all or part of the trucking transport business including the permission, only by filing a report with the competent authority on the trucking transport business, and a trucking transport business operator may also request the revocation of a trucking transport business, which is a physical facility or replacement of the business.

In the same purport, the court below is just in holding that the transfer contract of this case was a juristic act aimed at the property right subject to revocation of a fraudulent act, regardless of the circumstances that the debtor who was the debtor, closed his business after the fraudulent act, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the subject of revocation of a fraudulent act.

Therefore, the appeal is 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.

Justices Yang Chang-soo (Presiding Justice)