[1] The meaning of "the intention to commit fraud", which is a subjective element for revocation of fraudulent act, and the burden of proof as to the good faith of the beneficiary (=beneficiary)

[2] The scope of revocation of fraudulent act and the method of restitution in case where the beneficiary performed the obligation to return the lease deposit with preferential payment right after fraudulent act was conducted on the real estate which has the requirements for counterclaim and the fixed date under the Housing Lease Protection Act

[3] In a lawsuit seeking revocation of a fraudulent act, whether a creditor and a beneficiary may order the return of the original property if both the creditor and the beneficiary want to return the original property (affirmative with qualification), and the base point of time to determine the intent of the beneficiary who wants to return the original property (=the time of closing of argument in the facts-finding trial)

[1] Article 406 (1) of the Civil Code, Article 288 of the Civil Procedure Act / [2] Article 406 (1) of the Civil Code / [3] Article 406 (1) of the Civil Code

[2] Supreme Court Decision 97Da6711 decided Feb. 13, 1998 (Gong1998Sang, 727) Supreme Court Decision 2007Da29119 decided Jul. 26, 2007 (Gong2007Ha, 1366)

Industrial Bank of Korea (Law Firm Han & Yang LLC, Attorneys present Ba-ho et al., Counsel for the defendant-appellant)

Defendant (Law Firm Seo-ho, Attorneys Kim Young-chul et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2012Na2031 decided November 14, 2012

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Upon examining the reasoning of the judgment below in light of the records, it is reasonable that the court below determined that the non-party, who is the debtor, was in excess of the debtor's obligation due to the sale and purchase of the real estate of this case on the grounds as stated in its reasoning, and there is no violation of law by misapprehending the

2. Regarding ground of appeal No. 2

In the revocation of a fraudulent act, a subjective requirement means recognizing the fact that the debtor's property is reduced by the debtor's act of disposal of the property that makes it impossible to fully satisfy the creditor's claims because the joint security of claims is insufficient or the joint security already insufficient is more deficient than one story, and the beneficiary is responsible for proving that the beneficiary is bona fide.

For the reasons indicated in its holding, the lower court determined that the evidence submitted by the Defendant alone was insufficient to recognize that the Defendant was a bona fide and bona fide presumption of bad faith as the beneficiary of the fraudulent act.

Examining the records in light of the above legal principles, the above determination by the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to the good faith of the beneficiary, as otherwise alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

In cases where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the fraudulent act shall be cancelled and the order to recover the real estate itself, such as cancellation of the registration of transfer of ownership, is required. However, in cases where a fraudulent act was committed with respect to the real estate held by a lessee or a small-sum lessee who has requirements for counterclaim and a fixed date as prescribed by the Housing Lease Protection Act, such fraudulent act shall be established only within the extent of the balance remaining after deducting the deposit amount from the value of the real estate. Therefore, in cases where the beneficiary performed the obligation to return the deposit with a preferential right to reimbursement after the fraudulent act, the cancellation of the fraudulent act and the order to recover the real estate itself would result in a violation of fairness and fairness because it would restore the portion which was not initially secured by the general creditors, to the extent of the balance remaining after deducting the deposit amount (see, e.g., Supreme Court Decisions 97Da6711, Feb. 13, 199; 2007Da2919, Jul. 26, 2007).

On the other hand, even if restitution should be made by the method of equivalent compensation, both the creditor and the beneficiary want to return originals, and even in accordance with the return of originals, if there is no particular obstacle to achieving the objective of the obligee’s right of revocation, which is to preserve the general obligees’ property for the sake of preserving the originals, it would rather be in accord with the concept of fairness rather than raising the value compensation, and rather, it would be more fair to return originals, which is the method of restoring the originals in accordance with the revocation of the fraudulent act. Such intent of the beneficiary would be reasonable to be determined at the time of the conclusion of arguments in the lawsuit for revocation of the fraudulent act, when the beneficiary bears the duty of restoration due

The court below held that the restoration in this case is reasonable in view of the fact that the non-party, the debtor, sold the real estate in this case to the defendant and completed the registration of ownership transfer against the plaintiff, and on the premise that the defendant returned the whole or part of the lease deposit to some lessees after the registration of ownership transfer of the real estate in this case, but on the ground that it is dangerous for the defendant to be exposed to obligations more than the market price of the real estate in this case, such as filing a lawsuit for revocation of fraudulent act even from other creditors of the non-party, and thus, the plaintiff's primary claim was accepted.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the method of restitution for fraudulent act revocation.

4. Conclusion

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 Park Poe-dae (Presiding Justice)