[1] The meaning of "the date when the creditor becomes aware of the cause of revocation" in the exercise of the right of revocation

[2] The establishment and scope of a fraudulent act in a case where a beneficiary made a provisional registration to preserve the right to claim ownership transfer registration based on a sale promise after he/she subrogated for a secured obligation for prior security established on a real estate owned by an obligor, and then made a provisional registration on such real estate

[3] In a case where a provisional registration for the preservation of the right to claim ownership transfer registration was made based on a pre-sale agreement which is a fraudulent act, and the statutory due date for the gift tax has been completed prior to the above provisional registration, whether the registration of seizure affects the establishment of the fraudulent act of the pre-sale agreement (negative)

[4] Where a provisional registration for preserving the right to claim ownership transfer constitutes a fraudulent act, the method of reinstatement

[1] In the exercise of the obligee's right of revocation, "date when the obligee becomes aware of the ground for revocation" means the date when the obligee became aware of the requirements for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that he/she conducted a disposal act of the property, and that the juristic act is an act detrimental to the obligee, i.e., a lack of joint security of the claim or a lack of common security of the claim, thereby making it impossible for the obligee to fully satisfy the claim, and further, that the obligor had the intent of harming the obligee.

[2] In order to establish a fraudulent act, the debtor's joint security by doing any legal act, i.e., the amount obtained by deducting a passive property from his active property, should be insufficient to transfer the legal act. Therefore, establishing a new provisional registration of security with the same amount as the secured obligation in lieu of cancelling the provisional registration by repaying the secured obligation with respect to the debtor's real property in excess of his/her obligation, cannot be deemed to lack the debtor's joint security, and thus, establishing a new provisional registration of security with the same amount as the secured obligation cannot be deemed to constitute a fraudulent act. However, if a provisional registration of the right to preserve ownership transfer registration has been made after cancelling the prior registration of security, the fraudulent act is established within the extent of the amount of the real property, i.e., the amount of the security

[3] Since national taxes cannot be collected from property not owned by a taxpayer, if a third party acquires ownership before the property is seized due to a disposition on default of national taxes, in principle, the right to preferential collection of national taxes shall not apply to such property. Thus, inasmuch as provisional registration of preservation of the right to claim ownership transfer registration under the name of a third party prior to the registration of seizure by the tax authority has been completed, if the statutory due date of gift tax imposed on the tax authority prior to the above provisional registration is prior to the above provisional registration, it cannot be said that a sale reservation, which

[4] In a case where a provisional registration for preserving the right to claim ownership transfer is made as a fraudulent act, it is sufficient to cancel the sales reservation and cancel the provisional registration as a restoration to the original state, and there is no effect on the method of restitution such as the cancellation of a mortgage after the provisional registration, the partial repayment of the secured debt, or the provisional registration is the actual provisional registration.

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code / [3] Article 406 of the Civil Code, Article 35 of the Framework Act on National Taxes, Article 24 of the National Tax Collection Act / [4] Article 40

[1] Supreme Court Decision 200Da15265 decided Jun. 13, 200 (Gong200Ha, 1652) Supreme Court Decision 2000Da3262 decided Sep. 29, 200 (Gong2000Ha, 2199) Supreme Court Decision 2001Da11239 decided Nov. 26, 2002 (Gong2003Sang, 1849 decided Jun. 15, 200) / [2] Supreme Court Decision 200Da53632 decided Dec. 27, 2001; Supreme Court Decision 2001Da3734 decided Dec. 27, 2001 (Gong2002Da33755 decided Dec. 27, 201) / [309Da375294 decided Nov. 27, 2005]

Korea

Defendant (Korea Law Firm, Attorneys Cho Jae-hoon et al., Counsel for defendant-appellant)

Busan District Court Decision 2002Na7418 delivered on March 27, 2003

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

1. As to the ground of appeal on the main defense of this case

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and that such a juristic act constitutes an act detrimental to the creditor. In other words, it is required to know the fact that the legal act was not sufficient to secure the joint security of the claim, or that the joint security already in the short situation was insufficient, making it impossible to fully satisfy the claim, and that the debtor had an intent to harm (see Supreme Court Decision 2001Da11239, Nov. 26, 2002).

The court below accepted the judgment of the court of first instance, and judged that it is not sufficient to recognize that the plaintiff knew that the provisional registration of this case was a fraudulent act against the plaintiff merely because the plaintiff knew of the fact that the provisional registration of this case was registered to preserve the right to cancel provisional registration due to the cancellation of the fraudulent act in the name of the non-party 1 in the name of the new World Mutual Savings and Finance Company. There is no error in the misapprehension of legal principles as to the mistake of facts or the limitation period due to the violation of the rules of evidence, and there is no error in the misapprehension of legal principles as to the mistake of facts or the limitation period due to the violation of the rules of evidence, and the defendant's address

2. As to the ground of appeal on the merits

A. In order to constitute a fraudulent act, the debtor's joint security by doing any juristic act, i.e., the amount obtained by deducting a passive property from his active property, should be insufficient to transfer the juristic act (see Supreme Court Decision 2000Da53632, Jun. 15, 2001). Thus, establishing a new security provisional registration with the same amount as the secured obligation in lieu of cancelling the provisional registration by repaying the secured obligation with respect to an obligor's real property in excess of the obligation, cannot be deemed as not being a lack of the obligor's joint security, and thus, it cannot be deemed that a fraudulent act is established. However, if a provisional registration for preserving the right to claim ownership transfer registration has been made after cancelling the senior security provisional registration, the fraudulent act is established within the extent of the balance remaining after deducting the secured obligation from the market value (see Supreme Court Decision 200Da1954, Jan. 10, 203).

The court below held that, on December 29, 1997, the provisional registration of the right to claim ownership transfer registration (hereinafter referred to as the "provisional registration of this case") based on a pre-sale in the name of the defendant was made on February 5, 1998 when the provisional registration of the above provisional registration was cancelled on the same day on February 5, 1998 when the provisional registration of the right to claim ownership transfer registration (hereinafter referred to as the "provisional registration of this case") was made on the real estate of this case, and the provisional registration of the right to claim ownership transfer registration based on the pre-sale in the name of the defendant was made in relation to other creditors.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts against the rules of evidence or misunderstanding of legal principles as to the establishment

In addition, since national taxes cannot be collected from property not owned by the taxpayer, if a third party acquires ownership before the property is seized due to the disposition on default of national taxes, it does not in principle affect the right to preferential collection of national taxes (see Supreme Court Decision 98Da24396, Aug. 21, 1998). Thus, inasmuch as the provisional registration of this case has been completed prior to the Plaintiff’s registration on seizure, the statutory due date of gift tax imposed by the Plaintiff against Nonparty 1 is prior to the provisional registration of this case, the reservation of this case cannot be deemed to constitute a fraudulent act. Moreover, it cannot be deemed that the provisional registration of security was finalized only on the ground that five years have passed since the provisional registration of security was already cancelled, and that the provisional registration of Nonparty 2 and Nonparty 3 was not established. Therefore, the allegation in the grounds for appeal on this part

B. In a case where a provisional registration for preserving the right to claim ownership transfer is made as a fraudulent act, it is sufficient to cancel the sales reservation and cancel the provisional registration as a reinstatement, and the provisional registration is not affected by the method of restitution such as the cancellation of a mortgage after the provisional registration, the repayment of a part of the secured debt, or the provisional registration is de facto a provisional registration (see Supreme Court Decision 9Da20612, Jun. 12, 2001).

The court below is just in accordance with the above legal principles that the contract of this case was revoked on the ground that it was a fraudulent act, and that order the cancellation registration procedure of the provisional registration of this case to be restored to its original state, and there is no error in the misapprehension of legal principles as to the scope

3. 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 on the bench.

Justices Son Ji-yol (Presiding Justice)