The meaning of "the date when the creditor becomes aware of the cause of revocation" under section 406 (2) of the Civil Code, if the debtor sells real estate which is the sole property.

Unless there are special circumstances, it is easy for the debtor to sell and consume real estate, which is the only property, to change the money to a money that can be easily consumed by the debtor. The intent of the debtor's deception, which is the subjective element of a fraudulent act, refers to recognizing that there is a shortage of joint collateral for claims, and thus, it does not require any intent to harm or intent to harm creditors. If the debtor sells real estate, which is the only property, and alters to a money that is easy for the debtor to consume, it is presumed that the debtor's intent to cause harm would be presumed. Thus, if the debtor sells real estate, which is the only property, and if the creditor knows that there is no particular property other than the pertinent real estate, the creditor knew that the debtor committed a fraudulent act knowing that

Article 406(2) of the Civil Act

Supreme Court Decision 66Da1535 Decided October 4, 1966 (No. 14-3, 130) Supreme Court Decision 88Meu26475 Decided September 12, 1989 (Gong1989, 1463)

Dr. Dr. D.

Mayoung (Attorney Kim Young-ju, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na25836, 25843 delivered on December 5, 1995

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The Defendant-Counterclaim Plaintiff (hereinafter “Defendant-Counterclaim”)’s ground of appeal is examined.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, upon citing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that on June 4, 1991, the transfer registration of ownership in the name of the plaintiff (Counterclaim defendant; hereinafter the plaintiff) was completed with respect to 30/121 of 120 square meters among 10 to 400 square meters in the name of the plaintiff Kim Young-gun, Gyeonggi-gun, which was owned by the non-party Kim Young-si and the Han River (hereinafter the non-party) based on the reasoning of the judgment of the court of first instance. In light of the records, the court below rejected the defendant's assertion that the above measures of the court below are legitimate, and there is no error of law by misconceptioning the facts against the rules of evidence. The argument is without merit.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below, citing the reasoning of the judgment of the court of first instance, concluded a fraudulent act on December 20, 1974 with the non-party 1's 9m2 of the above land owned by the defendant, and completed the registration of ownership transfer on the 30/121 of the above land's convenience while selling 9m2 of the above land to the non-party 1's 9m2 of the above land and the non-party 1's 9m2 of the above land's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's 9m2 of this case's land and the building's 9m2's 9m3 of this case's 9m2 of this case's land.

Article 406 (2) of the Civil Code, which is the initial date in which a creditor may file a revocation suit, "the date when the creditor becomes aware of the cause for the revocation" means the time when the creditor knows that a juristic act was done by the creditor while he knows that it would prejudice the creditor, and it is not sufficient to say that the creditor was aware of the objective fact of the fraudulent act, and it cannot be presumed that the debtor knew of the objective fact of the damage.

However, it becomes a fraudulent act unless there are special circumstances to change the sale of real estate, which is the only property of the debtor, into money that can be consumed. The intent of the debtor's deception, which is the subjective element of a fraudulent act, refers to recognizing that there is a shortage of joint collateral for claims, and it does not require any intent or intent to harm the creditor. If the debtor sells real estate, which is the only property, and alters into money that can be consumed easily, it is presumed that the debtor's intent of deception is presumed (see Supreme Court Decision 66Da1535 delivered on October 4, 1966). If the debtor sells real estate, which is the only property, to the extent that the creditor knows that there is no specific property other than the pertinent real estate, if the creditor knows that there is no property other than the pertinent real estate, the creditor becomes aware of the fact that the debtor committed a fraudulent act while knowing that there is no

As duly determined by the court below, if the defendant applied for provisional seizure on the land of this case owned by the non-party at the time of around April 191 on the ground that the non-party had a claim for return of unjust enrichment equivalent to the land rent against the non-party, it would be confirmed that the defendant would have known the non-party that there was no property other than the land of this case and the building of this case in light of the property status of the non-party at that time. In addition, according to the records, the non-party's order of management of the defendant's property for the defendant could have known that the non-party had known the non-party that there was no property other than the land of this case since the time when the defendant applied for provisional seizure on the land of this case, the defendant knew that the non-party had been aware of the fact that the non-party had sold the land of this case and the building of this case to the plaintiff at that time, and that the non-party had filed a claim for provisional disposition and the lawsuit for removal of the building against the plaintiff.

In this regard, the fact-finding and decision of the court below that the defendant's counterclaim that was filed more than one year after the plaintiff knew that the non-party had committed a fraudulent act to sell the land and the commercial building of this case to the plaintiff even though he knew that he would prejudice the defendant who is the creditor on April 10, 192, and that the plaintiff's counterclaim that was filed more than one year thereafter, is unlawful because of the lapse of the exclusion period, is just and acceptable. In this regard, there is no violation of the rules of evidence, any incomplete deliberation or incomplete deliberation, or any misapprehension of the legal principles as to the requirements for the revocation right, the starting

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)