[1] The standard for determining the existence of an act in a case where a debtor reduced the liability property and caused or deepens the shortage of common security for general creditors

[2] In a case where a debtor in excess of his/her obligation transfers claims and other active properties other than the original purpose of the obligation with respect to the performance of the obligation to some of the multiple creditors, the standard for determining the existence of such act

[3] In a case where Company A, a debtor, transferred part of monetary claims to be paid by Company B through transaction with Company B, a third-party debtor Byung for the payment of monetary obligations to Company B, the case holding that the court below erred in the misapprehension of legal principle on the ground that the above assignment of claims could, in principle, be a fraudulent act, but the above assignment of claims could not be a fraudulent act, since there are many circumstances and there are cases where the existence of harm is denied, it is difficult to see that Company A, in collusion with Company B, transferred claims with the intent to harm other creditors, and it cannot be deemed that the above assignment of claims was a fraudulent act

[1] In a case where a debtor's act of reducing liability property causes or deepens the shortage of common security for general creditors, whether the act constitutes a fraudulent act subject to revocation shall be determined by comprehensively taking into account all the circumstances revealed in the act such as the ratio of the debtor's entire responsible property to the whole responsible property, the degree of insolvency, the legitimacy of the economic purpose of the juristic act and its realization means, the reasonableness of the act in question as well as the reasonableness of the act in question, the duty to act or the inevitable nature of the act, and the degree of the party's awareness of the risk of lack of common security, such as the existence of the debtor and the beneficiary'

[2] The act of a debtor in excess of his/her obligation to transfer other claims and active properties, which are not the original purpose of the obligation, with respect to the performance of the obligation only to some of the multiple creditors, may, in principle, constitute a fraudulent act in relation to other creditors, unlike the case where the debtor pays the obligation to a certain creditor according to the principal place of the obligation. However, in such a case, if the act cannot be seen as an act detrimental to the general creditor ultimately, the establishment of a fraudulent act may be denied.

[3] The case holding that the court below erred in the misapprehension of legal principles as to a fraudulent act on the ground that it is not necessary to establish a fraudulent act on the ground that, in case where Company A transferred part of the monetary claim to be paid by Company A to Company B for the purpose of paying a monetary obligation to one of the existing creditors to Company B, it cannot be viewed as a repayment according to the nature of the monetary obligation to be borne by Company B to Company B, and thus, if Company A was in excess of the monetary obligation at the time of transferring the claim, the above assignment of claim can be viewed as a fraudulent act in principle in relation to other creditors. However, there may be cases where the degree of insolvency of Company A caused by the transfer of the claim to be transferred, the degree of insolvency of Company A caused by the transfer of the claim, the circumstance and economic purpose of the transfer of the claim, and the content of communication between the debtor Company A and the beneficiary Party B, it is difficult to see that Company A transferred the claim with intent to harm other creditors in collusion with the insolvent company at the time of transferring the claim.

[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] [2] Supreme Court Decision 2007Da2718 Decided September 30, 2010 (Gong2010Ha, 1967) Supreme Court Decision 2010Da52416 Decided March 10, 201

3. A person who holds the right to request the transfer of a bond to another person, and a person who holds the right to request transfer of the bond to another person

Dong Bank Co., Ltd. (Law Firm Han & Yang LLC, Attorney Han-sung et al., Counsel for defendant-appellant)

Incheon District Court Decision 2010Na11200 decided February 18, 2011

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

In a case where a debtor's act of reducing liability property causes or deepens the shortage of common security for general creditors, whether the act constitutes a fraudulent act subject to revocation shall be determined based on whether the act ultimately constitutes an act detrimental to general creditors, by comprehensively taking into account the following circumstances: (a) the proportion of the debtor's entire responsible property among the debtor's entire responsible property; (b) the degree of insolvency; (c) the justification of the economic purpose of the juristic act; (d) the reasonableness of the act in question; (e) the degree of inevitability of the act in collusion between the debtor and the beneficiary; and (e) the degree of perception of the parties as to the risk of lack of common security, such as the existence of a joint security between the debtor and the beneficiary; and (b) whether the act of transferring claims and other active property, other than the original purpose of the obligation, to some of the creditors, can be deemed a fraudulent act in relation to other creditors, as a matter of principle, unlike the case where the debtor performs his obligation to a specific creditor. However, even in such a case, if the act cannot be deemed an act detrimental to the general creditor, it can be deemed a fraudulent act.

According to the reasoning of the judgment below and the record, on April 23, 2008, the Guro Korea Co., Ltd. (hereinafter “Rovis Korea”) transferred to the Defendant the claim amounting to KRW 100 million per month (hereinafter “the claim of this case”) out of the transaction price claims to be paid for the transport of container (hereinafter “the claim of this case”) with the third party obligor until the settlement of the above obligation is completed for the payment of all the claims claimed due to the reasons such as KRW 365,918,806 for the container loading and unloading expenses owed to the Defendant for which the due date has already arrived, and the due date has not yet been due, and for the payment of all the claims claimed, including the amount of KRW 365,918,806 for the container loading and unloading expenses owed to the Defendant, KRW 365,980,90 for the container loading and unloading expenses, KRW 360,400 for the container transport expenses, KRW 360,40529,500 for the Plaintiff.

In light of the legal principles as seen earlier, since the assignment of the instant claim cannot be deemed as a repayment according to the principal place of the container loading and unloading payment obligation against the Defendant of Rovis, if Rovis had been in excess of the obligation at the time of the assignment of the instant claim, the assignment of the instant claim, in principle, may constitute a fraudulent act in relation to other creditors, including the Plaintiff, etc. Provided, That if the instant claim is in a position of exceeding the obligation at the time of the assignment of the instant claim, the proportion of the instant claim to the entire responsible property of Rovis, the degree of insolvency caused by the instant assignment of claim, the background or economic purpose of the instant assignment of claim, and the content of communication between the Defendant and the beneficiary, etc., may be denied.

Nevertheless, the court below concluded that the assignment of the claim in this case cannot be deemed a fraudulent act solely on the ground that it is difficult to deem that Rovis transferred the claim in this case with the intent to harm other creditors in collusion with the defendant, even though Rovis were insolvent at the time of the transfer of the claim in this case, based on the circumstances in its holding. The court below erred by misapprehending the legal principles on the establishment of fraudulent act, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment.

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.

Justices Shin Young-chul (Presiding Justice)