2018Da219970 Revocation of Fraudulent Act

A Limited Liability Company

Law Firm after Law Firm

Attorney Park Jin-Jin, Park Jin-Jin, Heung-Jin, Doo-Jin

B

Law Firm Tae-il, Counsel for defendant-appellant

Attorney Kim Jong-ju

Seoul Eastern District Court Decision 2017Na23198 Decided January 17, 2018

July 12, 2018

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

The grounds of appeal are examined.

1. The “date when the obligee becomes aware of the ground for exclusion in the exercise of the obligee’s right of revocation” refers to the date when the obligee becomes 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 it would prejudice the obligee. In such cases, in order for the obligee to be aware of the ground for revocation, it is insufficient to say that the obligor merely knew of the fact that the obligor conducted a disposal of the property, and further, the obligor was aware of the existence of a specific fraudulent act, and that the obligor had the intent to know of the existence of the fraudulent act, and that the obligor had the intent to know of the intent to commit a fraudulent act. In addition, in cases where the obligee transferred the preserved claim and the assignee exercises the obligee’s right of revocation in order to preserve the claim upon the knowledge of the ground for revocation, the determination of whether the transferor of the claim is subject to exclusion period based on

2. According to the reasoning of the first instance judgment as cited by the lower court and the record, C, a joint guarantor of the instant loan claims, completed the registration of the instant claim for transfer of ownership on June 26, 2013 on the instant real estate based on the reservation to sell and purchase the instant real estate, and D, a creditor of the instant loan, filed an application for provisional attachment on December 29, 2014 with the Seoul Central District Court 2014Kadan5801, stating that the said joint and several debt claim against C, as the preserved right, had no other property than the instant real estate, in the written application for provisional attachment filed at the time of the application for provisional attachment. Upon D’s application for provisional attachment, D’s provisional attachment registration was completed in the future on January 13, 2015, D’s revocation of provisional attachment and transfer of the instant loan claim against the Plaintiff on August 20, 2015.

Examining these circumstances in light of the legal principles as seen earlier, there is room to deem that D had known that the instant promise constitutes a juristic act detrimental to the creditor at the time of the application for provisional attachment, and if based on such time, it may be deemed that the instant lawsuit passed one year, which is the exclusion period. The lower court first judged whether D, the transferor of the claim for loans of this case, was aware of the cause for cancellation before the transfer of the assignment of the assignment of the assignment of the assignment of the claim, and then determined whether D was subject to the exclusion period. Nevertheless, the lower court erred by misapprehending the legal principles as to the starting point of the exclusion period at the time of the transfer of the preserved claim, and thereby adversely affected the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Kim Jae-tae

Justices Kim Jae-in

A person shall be appointed.