Seoul High Court 201Na43909 (Law No. 17 December 2012)

There is an error of law that affected the conclusion of the judgment by concluding that donation was made.

Although the court should have deliberated and judged whether there was a mutual agreement with the intention to provide money free of charge, the court below erred by recognizing the fact that the money was donated only for the reasons stated in the judgment, which affected the conclusion of the judgment.

2012Da51127 Revocation, etc. of Fraudulent Act

Korea

XX

Seoul High Court Decision 2011Na43909 Decided May 17, 2012

December 27, 2012

The part of the lower judgment against the Defendant regarding the amount of KRW 000 and the amount of money deposited on March 26, 2009 out of the amount of money deposited by May 3, 2007 shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, Park Jong-young deposited KRW 000 on May 3, 2007 with the Defendant's Han Bank account on March 10, 2008, delivered KRW 00 on March 10, 2008 to the Defendant, and paid KRW 00 on May 15, 2007, KRW 00, KRW 000 on June 26, 200, KRW 200 on the money deposited by the Defendant's Han Bank account on March 26, 200, KRW 00 on March 26, 200, KRW 00 on the money deposited by the Defendant's Saemaul Bank account on March 26, 200, KRW 00 on the money deposited by the Defendant's Saemaul Bank account on March 10, 200, KRW 00 on the remainder of the money deposited in the Defendant's Saemaul Bank account on March 10, 200, KRW 00 on the Defendant's repayment account deposit account.

Furthermore, the court below rejected the defendant's assertion that Park Jong-chul entrusted each of the above amounts to the defendant's subrogation at the request of the defendant, except for those acknowledged as above, that the defendant paid 00 won, 000 won to Park Jong-A-do's creditors, 100 won on July 7, 2009, and 200 won on June 10, 2009, 200 won, the court below rejected the defendant's assertion that the defendant paid 200 won to Y-A-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

2. However, the lower court’s determination of the amount set off with KimD out of the above KRW 000 and the monetary payment act on the amount deposited on March 26, 2009 as a gift is not acceptable for the following reasons.

A. With respect to the creditor who seeks revocation of a fraudulent act asserts that an act of payment of money to the beneficiary is a gift to the beneficiary by the debtor, when the beneficiary contests that the debtor received the payment of money to a third party by subrogation, etc., this constitutes denial of creditor's assertion, and thus, it should be proved that the said act of payment of money constitutes a gift in order to be recognized as a fraudulent act, and the burden of proof therefor lies in the assertion of a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007). In this case, in order to constitute a gift, it should be interpreted that there exists a mutual agreement between the debtor and the beneficiary that the money transferred as such belongs to the beneficiary by the "donation" and without compensation among the parties related to the grant of money to the beneficiary (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

B. First of all, according to the facts acknowledged by the court below, the set-off amount of KRW 000, which the defendant received from KimD, was set-off against the amount equivalent to KRW 000,000 out of his debt owed to Park Jong-D, and the defendant is obligated to pay the set-off amount to KimD after the set-off disposition. If there are such circumstances, it is sufficient to view that at least KRW 000 out of the above KRW 00 was remitted after the set-off disposition, even if it was remitted after the set-off disposition, it was remitted as a result of the set-off disposition to the defendant, or as a payment for performing the defendant's obligation to pay the full-time deposit.

Therefore, the court below should have deliberated and judged more on whether ParkA had agreed to grant 00 won out of the above 000 won to the defendant free of charge between ParkA and the defendant, but the court below concluded that all of the above 000 won was donated to Park K by the defendant for the reasons stated in the judgment. The court below erred by misapprehending the legal principles on donation or failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Next, according to the facts acknowledged by the lower court and the evidence admitted by the lower court on March 26, 2009, the amount deposited as of March 26, 2009 was used as repayment of principal and interest of the Defendant’s Saemaul Savings Depository as of March 26, 2009, and was cancelled on March 26, 2009 when the establishment registration of a neighboring community credit cooperative in the name of the Defendant was cancelled on March 26, 2009, on which the said community credit cooperative’s establishment registration was established on March 26, 2009 with respect to the above building on the grounds of sale and purchase on June 18, 2009, the total amount of KRW 300 and KRW 70,000,000 transferred from each of the above creditors under the name of the Plaintiff’s account and KRW 40,700,000,000,000 changed from June 10, 2009.

In light of the circumstances, it is sufficient to view that ParkA and the defendant provided the amount of money deposited on March 26, 2009 to cancel the right to collateral security established on the above building owned by the defendant, and the defendant sold the above building after cancelling the right to collateral security, and the defendant agreed to pay the money equivalent to the above amount of money deposited to ParkA’s creditor to the F&F and F&E, a creditor of the above building, from the purchase price. Accordingly, it is sufficient to view that ParkA transferred the money deposited on March 26, 2009 to the non-party company through the non-party company.

Therefore, the court below should have deliberated and judged whether ParkA had agreed to grant money to the defendant free of charge on March 26, 2009 by ParkA and the defendant. However, the court below concluded that the above amount was donated from Park K for the reasons stated in its holding. The court below erred by misapprehending the legal principles on donation or failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Meanwhile, according to the records, even though the defendant filed an appeal against the whole part of the judgment of the court below against the defendant, there is no ground of appeal as to the remaining part of the appeal against the defendant except the above part as above.

4. Therefore, the part of the judgment of the court below against the defendant as to the amount of 000 won and 26 March 2009 out of the entrance fee of May 3, 2007 is reversed, and that part of the case is remanded to the court of the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.