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

[2] The case holding that even if there was a legal relationship which serves as the basis for the establishment of a claim at the time of the act of disposal of the property at issue, the mere fact that the debtor's small property was merely exceeded the active property or was urged to repay debts with respect to the separate guarantee obligation does not have high probability as to the occurrence of claims in the near future based on such legal relationship

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

[1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong1996Sang, 173), Supreme Court Decision 97Da3434 delivered on October 28, 1997 (Gong1997Ha, 3642), Supreme Court Decision 200Da17346 delivered on June 27, 200 (Gong2000Ha, 1759), Supreme Court Decision 200Da63516 Delivered on February 9, 2005 (Gong201Sang, 637), Supreme Court Decision 2000Da37821 delivered on March 23, 2001 (Gong201, 2048Da174284 delivered on March 24, 2005)

National Agricultural Cooperative Federation (National Agricultural Cooperative Federation)

For solar purposes

Jeonju District Court Decision 2004Na3423, 3430 Decided January 13, 2005

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

The grounds of appeal are examined.

1. In principle, a claim that can be protected by the obligee’s right of revocation should have arisen prior to the commission of an act that can be viewed as a fraudulent act. However, it is highly probable 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 because the probability is realized in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2004Da53173, Aug. 19, 2005).

2. In the instant case, the lower court determined that part of the sales contract concluded between the Defendant and the Defendant on April 26, 2001 with respect to each of the instant real estate (hereinafter “instant sales contract”) on the premise that the Plaintiff’s claim for indemnity based on the credit guarantee contract as of April 26, 2001 and the Plaintiff’s claim for indemnity based on the credit guarantee contract as of December 7, 2001 may be the preserved claim for obligee’s right of revocation constituted fraudulent act in relation to the obligee including the Plaintiff.

However, in light of whether the Plaintiff’s claim for recourse under the credit guarantee contract dated December 7, 2001 can be the preserved claim for obligee’s right of revocation, the date of the conclusion of the said credit guarantee contract was after September 20, 2001, which was the date of the conclusion of the instant contract, and there was no legal relationship which has yet been formed at the time of the instant contract, claiming that the Plaintiff is a fraudulent act, and thus, the claim for recourse under the said credit guarantee contract cannot be the preserved claim for obligee’s right of revocation.

Next, the Plaintiff’s claim for indemnity based on a credit guarantee contract dated April 26, 2001 is difficult to view that, according to the records, it was highly probable that the Plaintiff’s claim for indemnity based on the above credit guarantee contract was established on the ground that the credit guarantee contract of 16,90,000 won, which was issued by the Plaintiff as security, was delayed for the first time on January 1, 2003, and the Plaintiff lost the benefit of August 28, 2003, and the Plaintiff subrogated to several agricultural cooperatives for KRW 19,094,467 on December 26, 200 and acquired the claim for indemnity. In light of the above circumstances, it is highly probable that the Plaintiff’s claim for indemnity based on the above credit guarantee contract of 19,094,467 was established on the basis of the above credit guarantee contract of 200,000 won and its claim for reimbursement was established in the near future.

Therefore, the court below held that the plaintiff's claim for reimbursement based on the credit guarantee contract of April 26, 2001 and the plaintiff's claim for reimbursement based on the credit guarantee contract of December 7, 2001 can be the creditor's claim for the creditor's right of revocation, which affected the conclusion of the judgment by misapprehending the legal principles as to the elements for establishing a fraudulent act, and the ground of appeal assigning this error is with merit.

In addition, the court below's decision was omitted in addition to the claim for indemnity based on the credit guarantee contract of April 26, 2001 and the claim for indemnity based on the credit guarantee contract of December 22, 1998 prior to the incorporation of the plaintiff at the complaint of the Seoul District Court 2004Kadan743 case, and it seems that it is difficult for the above claim for indemnity to become the preserved claim of the creditor's right for revocation in light of the fact that the date of occurrence of the plaintiff's claim for indemnity based on the credit guarantee contract of December 30, 203 as well as the claim for indemnity based on the credit guarantee contract of December 22, 2001.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)