In cases where a favorable judgment becomes final and conclusive by filing a claim for cancellation of the registration in the name of the beneficiary due to the cancellation of fraudulent act and restitution, whether the creditor may claim compensation for the value by exercising the right to recover against the beneficiary again, or claim for the performance of the procedure for the registration of ownership transfer in the future of the debtor as the original return (negative)

If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution. If it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary shall compensate for the equivalent amount of the value of the subject matter of the fraudulent act as performance to the duty of restitution. Here, the cases where the return of the subject matter is impossible or considerably difficult refer to cases where the creditor cannot expect the realization of the performance from the beneficiary or the subsequent purchaser in light of social experience rules or transaction norms, rather than simply absolute or physical impossibility. Therefore, in cases where a third party acquires the right of mortgage, superficies, etc. after the transfer of real estate due to fraudulent act, the creditor may seek compensation against the beneficiary in lieu of the return of the subject matter, but on the contrary, the creditor cannot claim for the cancellation of the registration in the name of the beneficiary, or seek for the cancellation of ownership transfer registration against the beneficiary in the name of the beneficiary, as one of the costs of restitution becomes final and conclusive, even if the creditor’s right of restitution becomes final and conclusive.

Article 406(1) of the Civil Act; Article 216 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 2004Da54978 delivered on December 7, 2006 (Gong2007Sang, 115)

[Defendant-Appellee] Plaintiff 1 and 3 others (Law Firm Han, Attorneys Lee Ho-soo et al., Counsel for defendant-appellee

Defendant (Law Firm White, Attorney Kang Young-chul, Counsel for defendant-appellant)

Gwangju High Court ( Jeonju) Decision 2017Na10164 decided September 7, 2017

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Case history

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On February 1, 2010, Nonparty 1 entered into a sales contract (hereinafter “instant sales contract”) with the Defendant as to each real estate listed in the separate sheet of the first instance judgment, which is the only property owned by the Defendant under his/her own name (hereinafter “each of the instant real estate”). On the fourth day of the same month, Nonparty 1 completed each ownership transfer registration (hereinafter “each of the instant real estate transfer registration”).

B. (1) On July 25, 2011, the Plaintiff filed a lawsuit claiming return of unjust enrichment against Nonparty 1 on the ground that Nonparty 1 used the Plaintiff’s funds in acquiring each of the instant real estate, and received a favorable judgment ordering the payment of KRW 289,058,60 in the Gwangju High Court (Seoul High Court) 2012Na1042, May 2, 2013, and the said appellate court rendered a favorable judgment.

(2) On July 25, 2011, the Plaintiff filed a lawsuit against the Defendant for the revocation of fraudulent act, etc. against the Jeonju District Court 201Kahap4345, the Plaintiff rendered a judgment on January 16, 2014 that “The first instance judgment is revoked, and the instant sales contract is revoked, and the Defendant shall implement the procedure for the cancellation of each transfer of ownership registration of this case against Nonparty 1,” and the said judgment became final and conclusive (hereinafter “prior judgment”).

C. However, on December 4, 2013, the Defendant completed the registration of the establishment of a neighboring mortgage on each of the instant real estate to the Gimindo Agricultural Cooperative and Nonparty 2 on January 17, 2014.

D. (1) On March 24, 2014, the Plaintiff filed a lawsuit seeking compensatory damages for reasons of nonperformance of the obligation ordered by the preceding judgment or nonperformance of the execution of the preceding judgment against the Defendant on the grounds that (i) the previous Jeju District Court Decision 2014Da1804 decided March 24, 2014, (ii) the Plaintiff expressed his/her intention to accept the procedure for cancellation registration of each ownership transfer registration of the instant case against the Gegin Agricultural Cooperatives, Nonparty 2, etc., (iii) the cancellation of the above mortgage contract and the procedure for cancellation registration of the establishment registration of a mortgage based thereon

(2) In the appellate trial, the Plaintiff withdrawn the lawsuit against the Gimman Agricultural Cooperative and Nonparty 2, and the Defendant changed the purport of the claim and the cause of the claim that ① compensate for value on the grounds that the instant sales contract was revoked by fraudulent act, ② compensate for compensatory damages on the grounds that the Defendant’s obligation to cancel the registration of ownership transfer is impossible or impossible to execute, ③ the Defendant’s establishment of the right to collateral security was illegal, ④ the Defendant’s claim for return of unjust enrichment on the grounds that the Defendant’s establishment of the right

On November 12, 2015, the appellate court dismissed the lawsuit on the grounds that there is no benefit in the protection of rights to seek compensation or compensatory damages equivalent to the actual value, even though the judgment was finalized prior to the revocation of fraudulent act and the order to return the original claim, by filing a lawsuit seeking restitution of the original claim for the primary claim and the primary claim for restitution of the original claim, and rendered a judgment dismissing the lawsuit on the grounds that there is no benefit in the protection of rights (Article 2015Na231 of the Gwangju High Court (former High Court)). The Plaintiff’s appeal against the foregoing was dismissed (Supreme Court Decision 2015Da72262 Decided March 24, 2016).

E. On June 8, 2016, on the ground that the instant sales contract was revoked by fraudulent act, the Plaintiff filed the instant lawsuit against the Defendant seeking to implement the registration procedure for ownership transfer of each of the instant real estate to Nonparty 1 as restitution thereafter.

2. Judgment of the Supreme Court

A. If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution. If it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary shall be liable to compensate for the equivalent amount of the value of the subject matter of the fraudulent act as a performance to the duty to restore. If it is impossible or considerably difficult to return the subject matter, this refers to cases where the creditor cannot expect the realization of the performance by the beneficiary or subsequent purchaser, not simply absolute or physical impossibility, but also in light of social experience rules or transaction norms. Therefore, in cases where a third party acquires the right of mortgage, superficies, etc. after the transfer of ownership of real estate by fraudulent act, the creditor may seek compensation against the beneficiary equivalent to the value of the subject matter by restoring the subject matter of the fraudulent act in lieu of the return of the subject matter. However, the creditor is entitled to claim for cancellation of the right of restitution to the beneficiary under the name of the beneficiary and claim for cancellation of ownership transfer registration under the name of the beneficiary and claim for cancellation of ownership transfer registration under the name of the beneficiary.

B. We examine the judgment of the court below in light of the above legal principles. The plaintiff filed a lawsuit against the defendant to revoke the sales contract of this case as a fraudulent act and received the judgment in favor of the defendant ordering the defendant to cancel each of the registration of transfer of ownership of this case. Thus, the lawsuit of this case where the plaintiff again exercises the right to restitution following the revocation of fraudulent act and seeks to implement the procedure for ownership transfer registration directly in the future of the debtor is unlawful. Nevertheless, the court below rejected the defendant's principal safety defense that the lawsuit of this case is unlawful because there is no benefit for protection of rights. This judgment erred by misapprehending the legal principles as to res judicata effect and benefit for protection of rights of the final judgment, which affected the conclusion of the judgment. The ground of

3. Conclusion

Therefore, 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 Park Jung-hwa (Presiding Justice)