[1] Requirements for determining whether a debtor's insolvency is insolvent, and requirements for calculating real estate, bonds, etc. as active property, and whether prohibited property can be included in active property (negative)

[2] Whether division of property following the divorce may be divided into the nature of payment for compensation for mental damage (defensive material) (affirmative), and the requirements for division of property to be subject to the obligee’s right of revocation as a fraudulent act and the scope of revocation thereof

[1] In order for the debtor's act of disposing of the property to be a fraudulent act, the act causes a decrease in the debtor's whole property and there is a shortage of joint security for claims. In other words, the debtor's passive property should be more than the active property. Even if the debtor's active property among his active property at the time of disposing of the property exceeds his/her amount of debt, the calculation of the active property shall be excluded from the active property, unless there are other special circumstances. If the debtor's property is a claim, it shall be included in the active property only if it is confirmed by reasonably determining whether it is reliable to receive repayment, and it shall not be included in the active property.

[2] The division of property in a divorce shall contribute to the maintenance of the other party's livelihood at the same time after the division is liquidated and distributing the actual common property of the married couple while the division is at the same time. However, the division of property may be divided to the extent of the nature as a payment to compensate for mental damage (defensive damage) caused by the divorce by the division's act. In determining the amount and method of division of property, it is obvious that considering the amount of the property achieved through mutual cooperation between the parties concerned and other circumstances under Article 839-2 (2) of the Civil Code is clear in view of the provision of Article 839-2 (2) of the Civil Code, and even if the division of property is insolvent, the amount and method of division may be determined including the amount of the debt already borne by the division and whether it contributed to the formation of the common property. Even if the division of property becomes insolvent by the division of property and reduces joint security against the general creditor, it is limited to the portion which is subject to the obligee's right of revocation without special circumstances.

[1] Article 406 of the Civil Act / [2] Articles 406 and 839-2 of the Civil Act

[1] Supreme Court Decision 200Da69026 decided Apr. 27, 2001 (Gong2001Sang, 1244), Supreme Court Decision 2001Da32533 decided Oct. 12, 2001 (Gong2001Ha, 2457) / [2] Supreme Court Decision 2000Da14101 decided Jul. 28, 200 (Gong2000Ha, 1940), Supreme Court Decision 200Da25569 decided Sept. 29, 200 (Gong200Ha, 2207) (Gong201Sang, 201Sang), Supreme Court Decision 200Da63516 decided Feb. 9, 2001 (Gong2001Sang, 63516, 637, 2008Da53845 decided May 28, 2001)

Bank of Korea

Defendant

Seoul Central District Court Decision 2004Na6497 Decided September 22, 2004

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

1. The court below determined that the non-party's retirement benefits amounting to 43,716,138 won were 121,731,39 won after deducting taxes and loans, etc. from 75,330,089 won was received on June 21, 2002, that the non-party retired from Korea Federation of Banks for about 25 years after 200 days since the non-party entered into the donation contract of this case; that the non-party was 43,716,138 won from January 1, 202 to June 19, 2002; that the non-party's retirement benefits amounting to 121,731,390 won was 75,330,089 won; that the non-party's total debt amount was 960,014,000 won for apartment housing purchase funds, 200,254,794, 97, 9636, 975, 9636, etc.

2. The debtor's act of disposing of the debtor's property causes a decrease in the debtor's whole property and in short of joint security for claims due to such act. In other words, the debtor's passive property should be more than the debtor's active property at the time of disposing of the property. Even if the debtor's active property among his active property and the total amount of the property exceeds his/her obligation, the calculation of the active property shall be excluded from the active property, unless there are other special circumstances. If the property is a claim, it shall be included in the active property only if it is confirmed by reasonably determining whether it is certain to receive repayment (see Supreme Court Decision 2001Da32533, Oct. 12, 2001). Thus, it shall not be included in the active property unless it is included in the active property.

According to Article 246 (1) 4 of the Civil Execution Act, the amount equivalent to 1/2 of the wage, pension, salary, bonus, bonus, retirement allowance, retirement pension and other wage claims of similar nature cannot be seized except as provided in paragraph (2). Thus, the non-party's retirement allowance of 121,731,390 won at the time of the donation to the defendant of the apartment of this case (at least 20 days from the date of donation of the apartment of this case, there is no big difference in the amount of retirement allowance at the time of retirement from the Korea Federation of Banks, or retirement allowance at the time of donation of the apartment of this case after 20 days from the date of donation of the apartment of this case, and the difference is not likely to interfere with the determination of the fraudulent act of this case, 60,865,695 won, which is the amount equivalent to 1/2 of the total amount of the apartment of this case, shall not be included in active property in principle, and shall be included in property.

Thus, 65,873,383 won of the non-party’s total debt at the time of donation of apartment in this case exceeds 60,865,695 won of retirement allowance, which is its active property. Thus, barring any special circumstance, barring any special circumstance, it should be deemed that the non-party’s passive property is larger than the active property, and the fraudulent act is established.

Nevertheless, the court below erred in the misapprehension of legal principles as to the establishment of fraudulent act by failing to exhaust all necessary deliberations or misapprehending the legal principles as to the establishment of fraudulent act, which held that the court below's active property does not constitute fraudulent act considering the total amount of retirement allowances of the non-party as active property in the gift contract in this case.

3. However, the above error by the court below does not affect the conclusion of the judgment for the following reasons.

In divorce, division of property shall contribute to the maintenance of the other party's livelihood at the time of liquidation and distribution of the actual common property that the couple had in the marriage. However, division of property may be divided to the extent of the nature as payment to compensate for mental damage (deficial material) caused by divorce by the division's responsible act. In determining the amount and method of division of property, it is obvious that division of property should take into account the amount of property achieved through mutual cooperation between the parties concerned and other circumstances under Article 839-2 (2) of the Civil Act. Thus, even if the division of property has already been in excess of the debt or becomes insolvent if the division of property has contributed to the formation of common property, the amount and method of division may be determined including the amount of the debt that the division bears and the amount of the division's joint property, and even if the division of property has become insolvent by the division of property and reduces the joint security of the general creditor, it shall not be limited to the extent that it goes against the purport of Article 839-2 (2) of the Civil Act.

According to the records, the non-party's report of marriage with the defendant on December 2, 1976 and has three children among them. The non-party worked as the company members including the Korea Federation of Banks. The defendant agreed to divorce due to the non-party's negligence in home and assaulting the defendant. The non-party's agreement to donate the apartment of this case, which is his residence, to the defendant on May 31, 2002. The non-party did not move to another place on June 21, 2002. The non-party was living together with the defendant, and the non-party's above three children did not move to the above apartment of this case as the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party property division.

Ultimately, the court below's incomplete hearing and the misapprehension of legal principles do not affect the conclusion of the judgment.

4. 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 on the bench.

Justices Lee Han-gu (Presiding Justice)