[1] The case where a lawsuit seeking revocation of a fraudulent act does not ex officio examine whether the period of filing a lawsuit is observed

[2] The meaning of "the date on which a legal act that forms the basis for filing a lawsuit in a lawsuit for revocation of a fraudulent act exists"

[3] In a case where a separate registration of ownership transfer has been completed without following the principal registration procedure based on provisional registration, whether the registration of transfer can be requested for cancellation by fraudulent act revocation (affirmative)

[1] A lawsuit for revocation of a fraudulent act shall be brought within five years from the date of the juristic act, and since this period is the period for filing a lawsuit, the court shall ex officio investigate whether the period is observed and dismiss the lawsuit for revocation of a fraudulent act which is brought after the period is expired as illegal. Thus, if there is doubt as to whether the period is observed, the court may ex officio examine evidence to the extent necessary, but even if there is no circumstance to suspect that the period is too excessive when examining all the litigation materials presented to the court, the court does not have the obligation to ex officio examine additional evidence and confirm compliance with the period.

[2] In a lawsuit for revocation of a fraudulent act, "the date on which the legal act was the basis for filing the lawsuit" refers to the date on which the legal act corresponding to the fraudulent act was actually committed.

[3] In a case where a person holding a provisional registration receives a separate registration of transfer without following the procedure of principal registration based on provisional registration, unless there are special circumstances, the person holding a provisional registration may request the principal registration based on the provisional registration again, and thus, it cannot be deemed that the same as the principal registration based on the provisional registration of a separate registration of transfer of ownership is not the same as the principal registration based on the provisional registration of transfer of ownership, so long as the legal act causing the separate registration of transfer of ownership is revoked as a fraudulent act, such registration of transfer should be cancelled as its restoration. It does not change depending on whether the provisional registration is restored by the legal principle of confusion or whether the title holder of the transfer registration can re-

[1] Article 406 (2) of the Civil Code, Article 265 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 292) / [2] Article 406 (2) of the Civil Code / [3] Article 406 (1) of the Civil Code

[1] Supreme Court Decision 95Da50875 delivered on May 14, 1996 (Gong1996Ha, 1850), Supreme Court Decision 2000Da44348 delivered on February 27, 2001 (Gong2001Sang, 774) / [3] Supreme Court Decision 87Da1637 delivered on September 27, 198 (Gong1988, 130), Supreme Court Decision 92Da3410, 3417 delivered on April 26, 1994 (Gong194, 147), Supreme Court Decision 95Da29888 delivered on December 26, 195 (Gong196, 532)

Korea

Defendant (Attorney Lee Yong-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2001Na1203, 1210 delivered on October 10, 200

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

A lawsuit for revocation of a fraudulent act shall be instituted within five years from the date of the juristic act, and since this period is the period for filing a lawsuit, the court shall ex officio investigate ex officio as to whether the period is observed and dismiss the lawsuit for revocation of a fraudulent act which has been filed after such period has expired. Thus, if there is doubt as to whether such period has been observed, the court may ex officio examine the evidence to the extent necessary. However, even if there is no circumstance to suspect that the period has lapsed when examining all the litigation materials presented to the court through all the litigation materials, the court does not have an obligation to ex officio examine additional evidence and confirm compliance with the period (see, e.g., Supreme Court Decisions 95Da50875, May 14, 1996; 200Da44348, Feb. 27, 2001).

In addition, the date of the legal act means the date on which the legal act corresponding to the fraudulent act was actually done.

According to the records, if Non-party 1 agreed on the transfer registration between the defendant and the defendant at the end of June 14, 1995, and the transfer registration is made on the same day, it can be recognized that the cause and date of the registration was entered in the sale on January 5, 1992. Thus, the date on which the juristic act which was the cause of the above transfer registration was actually constituted between the above non-party 1 and the defendant was actually entered in the sale on June 14, 1995. Thus, the lawsuit of this case is clearly recorded in the records that it was filed on July 24, 1999 and it is apparent that the lawsuit of this case was filed on July 24, 199. Thus, the lawsuit of this case was brought within the litigation period.

The court below's decision that "the disposition date of this case" on June 14, 1995, which was the registration date of the above transfer, was cancelled, but it stated that the date of actual sales contract and the date indicated as the contract date are different from each other in the sales contract, and that it was not the legal act of January 5, 1992. Thus, the court below's decision that the lawsuit of this case is legitimate is not erroneous, and it did not err in the misapprehension of legal principles as to the period of lawsuit or the requirements for lawsuit, or incomplete deliberation, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

In light of the records, the court below rejected the evidence that the defendant held the above non-party 1 with the claim for the price of goods, the claim for reimbursement, and the claim for the loan, and rejected the defendant's assertion that the 2/3 share of the real estate in this case was registered as a substitute for the payment of the claim, and there is no illegality such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

3. As to the third ground for appeal

In a lawsuit for revocation of a creditor, where a debtor performs a legal act aimed at a property right with the knowledge that it would prejudice the creditor, the debtor's legal act is revoked in relation to the beneficiary or the subsequent purchaser, and the debtor claims restitution. Therefore, in cases where the debtor's act of transferring the ownership of real estate to the beneficiary constitutes a fraudulent act, in relation to the beneficiary, the legal act causing such transfer should be revoked and the registration of transfer in the name of the beneficiary shall be cancelled, and in such cases, the beneficiary shall not be ordered to cancel the registration of transfer in the name of the beneficiary, on the ground that

In addition, in cases where a provisional registration holder receives a separate registration of ownership transfer without following the procedure of principal registration based on provisional registration, the provisional registration holder may request the principal registration based on the provisional registration (see Supreme Court Decision 95Da29888 delivered on December 26, 1995), barring any special circumstance, it cannot be deemed that the separate registration of ownership transfer is the same as the principal registration based on the provisional registration.

In this case, even though the defendant had made a provisional registration before the above non-party 1 received the registration of transfer from the above non-party 1, the above registration of transfer should not be deemed to be the same as the principal registration based on the above provisional registration inasmuch as the defendant received a separate registration of transfer without going through the procedure of principal registration based on the provisional registration and then cancelled the above provisional registration, so long as the legal act which caused the above registration of transfer is cancelled as a fraudulent act, the above registration of transfer should be cancelled as its original state, and it should not be viewed as different depending on whether the above provisional registration is restored by the legal principle of confusion or whether the defendant can make the principal registration again on the basis of the restored provisional registration.

The judgment of the court below in the same purport shall be justified, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles or rules of experience.

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the defendant who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)