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

[2] Whether the transferor's damage claim acquired by the transferee against the transferor constitutes a preserved claim for the creditor's right of revocation by transferring real estate in duplicate to a third party and completing the registration of transfer of ownership (negative)

[3] Whether the right of revocation may be exercised to preserve the right to claim ownership transfer registration of a specific object (negative)

[1] In principle, a claim protected by the obligee’s right of revocation is required to be created prior to the occurrence of an act that can be deemed 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 a claim, and that the claim should be established in the near future in the near future. In case where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim

[2] The amount of damage claim equivalent to the value of the real estate acquired by the transferor by transferring the real estate to a third party through a double transfer and completing the registration of ownership transfer shall not be deemed as the preserved claim entitled to exercise the right to revoke the fraudulent act against double transfer.

[3] Since it is not allowed to exercise the right of revocation in order to preserve the right of revocation for transfer registration of ownership in a specific object, the first assignee of real estate cannot exercise the right of revocation for dual transfer conducted between the transferor and the third party for the purpose of preserving the right of revocation for transfer registration of ownership.

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act

[1] [3] Supreme Court Decision 94Da2534 delivered on February 10, 1995 (Gong1995Sang, 1284) / [1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong196Sang, 173) Supreme Court Decision 95Da14503 delivered on February 9, 1996 (Gong1996Sang, 902), Supreme Court Decision 96Da38612 delivered on May 23, 1997 (Gong1997Ha, 1859), Supreme Court Decision 97Da8687 delivered on October 10, 199 (Gong197Ha, 3420), Supreme Court Decision 97Da38979 delivered on April 38, 197 (Gong97Da39849 delivered on May 29, 197)

[Judgment of the court below]

Defendant 1 and one other (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Gwangju High Court Decision 97Na715 delivered on October 16, 1998

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, since the non-party 2 and the non-party 2 agreed to carry on the above business of manufacturing and selling plastics on April 23, 1995, they agreed to be awarded a successful bid in the name of the defendant 2 for the purpose of selling and selling the above 9-party 2 and the defendant 2 agreed to transfer the above 9-party 2's claim for the registration of transfer for the purpose of selling and selling the above 9-party 2's real estate on October 20, 195, the above 9-party 2 and the defendant 2 agreed to transfer the above 9-party 2's claim for the registration of transfer for the purpose of selling and selling the above 9-party 2's real estate on December 18, 195, on the ground that the above 9-party 1 and the non-party 2 agreed to transfer the above 9-party 2's ownership to the plaintiff 1 and the defendant 2 did not enter the above 9-party 2's claim for transfer registration.

In light of the records, it is justifiable for the court below to acknowledge that Defendant 2 completed the registration of ownership transfer of the real estate of this case for Defendant 1 to repay the debt amounting to KRW 220,000,000, and there is no error of law by misapprehending the legal principles as to the supplement of the party's question, or by failing to exhaust all necessary deliberations in violation of the logical rules and the rules of evidence. We do not have merit.

2. Regarding ground of appeal No. 2

Although it is required that a claim that can be protected by the obligee's right of revocation has arisen before the act was conducted which can be viewed as a fraudulent act in principle, it is highly probable that the claim has already been established at the time of the fraudulent act, and that the claim should be established in the near future, and where a claim has been established in the near future because its probability has been realized, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 95Da27905, Nov. 28, 1995). However, the claim equivalent to the value of the real estate acquired by a person holding the right of claim for ownership transfer by transferring the real estate to a third party and completing the registration of ownership transfer through the transferor's double transfer to a third party cannot be deemed as a preserved claim that can exercise the right of revocation of the fraudulent act against a specific object. In addition, since the right of revocation is not allowed to exercise the right of revocation in order to preserve the ownership transfer registration for a specific object, the assignee of the real estate can not exercise the obligee's right of revocation between the transferor's right of assignment and the third party.

According to the reasoning of the judgment below, the court below determined on the plaintiff's assertion as to the third preliminary claim against the defendant 1, i.e., the defendant 2 conspired with the plaintiff 1 by intention of deception in the absence of bankruptcy, and completed the registration of ownership transfer on the ground of sale and purchase. Accordingly, in order to preserve the plaintiff's claim for return of unjust enrichment equivalent to the real estate value of this case against the defendant 2, which the plaintiff company acquired, the court below erred in the misapprehension of the legal principles as to the plaintiff 1's claim for return of unjust enrichment against the defendant 2, since the plaintiff 2 transferred the ownership of this case's real estate to the defendant 1 and the plaintiff 2's claim for return of unjust enrichment against the defendant 2 was impossible to perform the plaintiff's claim for transfer of ownership transfer of the plaintiff company's real estate, and the plaintiff 2 cannot exercise the right of revocation as the conjunctive claim for return of unjust enrichment against the defendant 2, and the plaintiff 2 cannot exercise the right of revocation prior to the plaintiff 1's right of revocation.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)