[1] Whether the agreement on the division of inherited property is subject to the exercise of the right to revoke a fraudulent act (affirmative), and whether a fraudulent act constitutes a case where a debtor in excess of a debt renounces his/her right to the inherited property in consultation on the division of inherited property and thereby joint security against general creditors has decreased (affirmative)

[2] In a lawsuit seeking revocation of a fraudulent act, whether the beneficiary shall deduct the amount of the claim for return of the lease deposit with preferential payment right from the value of the real estate to be compensated for by the beneficiary (affirmative), and whether such a legal principle applies to cases where the agreement on division of inherited property is acknowledged as a fraudulent act and revoked (affirmative)

[1] The agreement on the division of inherited property is to confirm the reversion of inherited property by either having all or part of the inherited property, which was provisionally owned by each inheritor, or having been performed as a new co-inheritors, upon the commencement of inheritance, as to the inherited property, and therefore having become the object of property rights by its nature. Therefore, it may be subject to the exercise of the right to revoke a fraudulent act. Meanwhile, barring any special circumstance, the debtor's act of replacing the inherited property, which is only the property of his own, with money easily consumed or transferring it to another person without compensation, constitutes a fraudulent act against the creditor, barring any special circumstance. Thus, even if the debtor in excess of his/her obligation already renounced his/her right to the inherited property upon the

[2] In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as cancellation of the registration of transfer of ownership. However, in a case where it is impossible or considerably difficult to return originals, compensation shall be ordered equivalent to the value of the object of the fraudulent act as a performance of the duty to restore the originals, and in this case, compensation shall be ordered for the equivalent value within the extent that the fraudulent act is constituted as a joint security of general creditors. As such, in a case of compensation for the equivalent value of the real estate, the opposing power provided by Article 3(1) of the Housing Lease Protection Act shall be set up and the lessee who has the right to preferential reimbursement of the lease deposit with the fixed date of the lease contract or the small lessee who has the right to preferential reimbursement of a certain amount of the lease deposit with the fixed date of the lease deposit shall be deducted from the value of the real estate to be compensated by the beneficiary. This legal principle shall also apply to the case where the installment agreement on the inherited property between the inheritor and the heir's's's share in inheritance.

[1] Articles 406 and 1013 of the Civil Act / [2] Articles 406 and 1013 of the Civil Act; Articles 3(1) and 8 of the Housing Lease Protection Act

[1] Supreme Court Decision 200Da51797 decided Feb. 9, 2001 (Gong2001Sang, 615), Supreme Court Decision 2000Da41875 decided Apr. 24, 2001 (Gong2001Sang, 1198) / [2] Supreme Court Decision 99Da51197, 51203 decided Jun. 12, 2001 (Gong2001Ha, 1572), Supreme Court Decision 9Da5856 decided Mar. 29, 2002 (Gong203Da40286 decided Dec. 12, 2003)

Plaintiff

Defendant (Law Firm Yang & Yang, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2006Na5982 Decided March 29, 2007

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Southern District Court.

The grounds of appeal are examined.

1. As to whether the agreement on division of inherited property of this case constitutes a fraudulent act

The agreement on division of inherited property becomes a fraudulent act against a creditor, barring any special circumstance, inasmuch as a creditor in excess of debt constitutes a fraudulent act against a creditor, in principle, where the joint security against the creditor has been reduced by waiver of his/her right to share of inherited property in the course of the agreement on division of inherited property, inasmuch as the ownership of inherited property becomes final and conclusive by performing all or part of the inherited property as separate ownership of each inheritor or as a new joint ownership relationship among co-inheritors (see Supreme Court Decision 2000Da51797, Feb. 9, 2001).

Upon examining the reasoning of the judgment below in light of the above legal principles and the records, the court below is justified in holding that "the agreement on division of inherited property between the non-party 1 and the defendant on division of inherited property between the non-party 1 is transferred without compensation to the defendant, and thus cannot be made for the purpose of raising funds for the repayment of debts as alleged by the defendant, and even if such agreement on division and the transfer of ownership in the name of the defendant alone are deemed merely a means to sell the real estate of this case, which is inherited property, to the non-party 2, as alleged by the defendant, the evidence submitted by the defendant alone is insufficient to deem that the sale was made at a reasonable price in order to cover the legitimate repayment to the non-party 1's some creditors, and there is no other evidence to acknowledge it otherwise, contrary to what is alleged in the ground of appeal

2. As to the scope of compensation for value

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, an order shall be issued to cancel the fraudulent act and to recover the real estate itself, such as cancellation of the registration of transfer of ownership: Provided, That in a case where the return of the original object is impossible or considerably difficult, compensation equivalent to the value of the object of the fraudulent act shall be ordered as performance of the duty to restore the original property. In such a case, compensation for the value shall be ordered to compensate for the value within the scope of the fraudulent act as a joint collateral of the general creditors (see Supreme Court Decision 2003Da40286, Dec. 12, 2003, etc.). As such, in a case where there is an opposing power under Article 3(1) of the Housing Lease Protection Act with regard to such real estate, and a lessee who has the right to preferential payment with the fixed date of lease contract, or a lessee who has the right to preferential payment with respect to the fixed amount of the lease deposit, the amount of the heir's obligation to return the inherited property shall be deducted from the value of the inherited property (see Supreme Court Decision 9Da519757529, 297.295Da295365, etc.

However, according to the records, the defendant argued in the court below that "The real estate of this case subject to consultation on the division of inherited property between the non-party 1 and the defendant was leased to the other person before the death of the non-party 2, who is the inheritee, the heir including the non-party 1 and the defendant succeeded to the obligation to refund the deposit money. After the division of inherited property, the defendant was actually paid only 30 million won after deducting the sum of the deposit money from the deposit money of 125 million won from the deposit money of the court below, and even if the agreement on the division of inherited property of this case constitutes a fraudulent act, the value of the real estate to be compensated by the defendant, who is the beneficiary, should be limited to the remaining 30 million won after deducting the deposit money to return the deposit money of the trust money of the non-party 1, which is the inheritance share of the non-party 30 million won, and the remaining part of the deposit money of the real estate lease contract, copy of the copy of the deposit, resident registration, etc. of this case can be admitted.

In light of the above circumstances, the court below should have examined the extent of the common obligees' joint security among the inheritance shares of the non-party 1, i.e., the scope of fraudulent act, and should have ordered compensation to the defendant only for the part of the inheritance shares of the non-party 1, by examining whether the claim to return the lease deposit claimed by the defendant is a claim with preferential payment right which satisfies the requirements under the Housing Lease Protection Act, prior to ordering the defendant to compensate for the damages equivalent to the value of the original property because the co-defendant 2 of the court below's above co-defendant 1

Nevertheless, the court below did not make any determination on this point, and ordered the defendant to compensate for all shares of the non-party 1 among the value of the real estate of this case at the time of the closing of argument in the court below. In such a case, the court below erred by misapprehending the legal principles on the scope of the value to be compensated by the beneficiary as the performance of the duty of restitution, thereby failing to exhaust all necessary deliberations, and omitting judgment on the parties' assertion. The ground of appeal No. 2 pointing

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)