Whether the act of repayment according to the principal place of debt constitutes a fraudulent act (negative)

A creditor’s right to demand repayment of an obligation, as a natural exercise of his/her right, does not interfere with it on the ground that there exists another creditor, and the debtor also bears the obligation to perform his/her obligation according to the principal place of the obligation, and does not refuse to refuse the performance of the obligation even in cases where there is another creditor. Thus, even in cases where the debtor’s joint security of other creditors is reduced by repaying his/her obligation to a specific creditor in excess of his/her obligation, such performance does not constitute a fraudulent act in principle, except in cases where the debtor, in collusion with some creditors, has an intent to prejudice other creditors.

Article 406(1) of the Civil Act

Supreme Court Decision 67Da75 Decided April 25, 1967 (No. 15-1, 342), Supreme Court Decision 67Da847 Decided July 11, 1967 (No. 15-2, 166), Supreme Court Decision 80Da2613 Decided July 7, 1981 (Gong1981, 14158), Supreme Court Decision 94Da2961, 2978 Decided June 14, 1994 (Gong194Ha, 1956)

Plaintiff (Attorney Lee Im-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Park Jae-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na425 delivered on October 17, 2000

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

The grounds of appeal are examined.

1. Points of mistake of facts

Examining the relevant evidence in light of the records, the fact-finding by the court below that the defendant lent 441,510,000 won in total to the non-party 15 times from November 30, 1995 to August 31, 1996 (hereinafter referred to as the "non-party 1") and received some of them, is acceptable, and there is no error of misconception of facts as otherwise alleged in the ground of appeal.

In addition, according to the records, among the amounts that the court below rejected on July 5, 1996, the fact that the defendant received reimbursement of KRW 18 million on July 5, 1996 (the remainder of the payment asserted by the plaintiff is not recognized) but the nature of monetary payment from the non-party company cannot be a gift. Accordingly, the court below's mistake of facts as to this point shall not affect the conclusion of the judgment. The grounds for appeal on this point are dismissed.

2. Meritorious of legal principles

A creditor’s right to demand repayment of an obligation does not interfere with the exercise of his/her right by reason of existence of another creditor, and the debtor also bears the obligation to perform his/her obligation according to the nature of the obligation and does not refuse the performance of the obligation even in cases where there is another creditor. As such, even in cases where the debtor’s joint collateral of other creditors is reduced by repaying his/her obligation to a specific creditor in excess of his/her obligation, such performance does not constitute a fraudulent act in principle, except in cases where the debtor, in collusion with a certain creditor, intended to prejudice other creditors (see, e.g., Supreme Court Decisions 67Da75, Apr. 25, 1967; 67Da847, Jul. 11, 1967).

According to the records, the defendant's loan to the non-party company was originally due, so it seems that the defendant had arrived at the due date by demanding the repayment, the amount repaid is about 40% of the loan amount, and some of the loan amounts are additionally lent even during the period of repayment. Thus, even if the defendant's repayment received, it cannot be concluded that the non-party, who is the representative director of the non-party company and the non-party company, is actually married with the non-party company's representative director, even though the defendant and the non-party are actually married with the non-party company's representative director, it cannot be concluded that the defendant's act of repayment in collusion with the non-party company's representative director, which is the non-party company'

Although the reasoning of the court below is somewhat insufficient, it is legitimate to conclude that the fraudulent act is not a fraudulent act, and therefore, it cannot be deemed that there is an error of law by misunderstanding legal principles as alleged in the ground for appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)