Whether the obligor is presumed to have bad faith if he/she had bad faith in a fraudulent act

If the obligor's bad faith is recognized in fraudulent act, the beneficiary is presumed to be bad faith unless the good faith is proved.

Article 406 of the Civil Act

Supreme Court Decision 65Da548 delivered on May 31, 1965 (Supreme Court Decision 1957Da1447 delivered on October 18, 1966 (Supreme Court Decision 2284,2285 and Decision 406(32,33) 408 delivered on October 18, 1966

Plaintiff

Defendant 1 and two others

Daegu District Court (71 Gohap847) in the first instance

The judgment of the first instance is modified as follows.

(1) As to the Plaintiff’s 2,791,570 won and double 130,000 won, the amount calculated by applying the rate of 5 percent per annum from June 1, 1971 to August 2, 1972; the amount calculated by applying the rate of 25 percent per annum from August 3, 1972 to the full payment; and the remainder amount of 2,61,570 won to the Plaintiff at the rate of 5 percent per annum from October 3, 1971 to the full payment.

(2) The sales contract of September 10, 1971 between Defendant Young-gu and Defendant 2 on the land listed in the annexed Table 1 list shall be revoked.

On September 14, 1971, the defendant 2 implemented the procedure for cancellation registration of transfer of ownership on the ground of sale as the Daegu District Court's receipt of the Daegu District Court's 43186 registration office on September 14, 1971.

(3) The plaintiff's remaining claims are dismissed.

(4) The costs of lawsuit are assessed against the Plaintiff and Defendant Young-gu and Defendant 2 through the first and second trials. The costs of lawsuit between the Plaintiff and Defendant 2 are assessed against the same Defendants. The costs of the lawsuit between Defendant 3 are assessed against the Plaintiff.

(1) As to the Plaintiff’s 2,791,570 won and double 130,000 won, Defendant Young-gu shall pay to the Plaintiff the 30% annual interest rate from June 1, 1971 to the full payment rate, and as to the remaining 2,661,570 won, the 5% interest rate per annum from October 3, 1971 to the full payment rate.

(2) With respect to the real estate recorded in the separate sheet No. 1 between Defendant 2 and Defendant 3 (Preliminaryly the same Chuncheon as Defendant 2), the sales contract was revoked on September 10, 1971 with respect to the real estate recorded in the same list No. 2 between Defendant 2 and Defendant 3. Defendant 2 will implement the procedure for the cancellation of the registration of transfer of ownership as to the real estate recorded in the same list No. 1 on September 14, 1971 with respect to the same list No. 43,186 on September 14, 1971 with respect to the Daegu District Court No. 43,186 on September 14, 1971, and with respect to the same list No. 2

The defendant 3 executes the registration procedure for transfer of ownership on the ground of termination of the trust contract as to the real estate recorded in the second list to the same Gun.

(3) Litigation costs are assessed against the Defendants.

(4) A provisional execution may be effected only under Paragraph (1).

The part against the plaintiff in the original judgment shall be revoked.

same as paragraph 2 of the purport of the claim.

All the costs of lawsuit shall be borne by the defendants through the first and second trials.

(1) The plaintiff's attorney denies the power of attorney of the defendants, and therefore, according to the records of the notarial deed attached to the records, the defendants can recognize the fact that the defendants delegated to the non-party 1 of this case to the non-party 1 of this case, the above assertion is groundless.

(2) In full view of the testimony of Nonparty 2 and Nonparty 3 and Nonparty 4 of the lower court as well as all the purport of the parties’ arguments, the Plaintiff loaned KRW 130,000 to Defendant Young-gu with the interest rate of KRW 30,00 per month and May 31 of the same year, and KRW 2,61,570 per 10 per promissory notes from August 1 of the same year to October 10 of the same year. The Plaintiff loaned KRW 2,661,570 to Defendant Young-gu with the interest rate of KRW 130,00 from March 3, 1971, and the payment period of KRW 10 per notes from August 2 of the same year to October 2 of the same year. The Plaintiff may be admitted to the fact that the Plaintiff paid the money at face value to the bill holder on October 2 of the same year. Contrary to this, the Plaintiff’s testimony of Nonparty 2 of the lower court (excluding the foregoing part) and there is no evidence contrary to this.

Defendant Young-gu’s legal representative asserted that he repaid the total face value of KRW 1,00,000 to the Plaintiff after borrowing a promissory note from the Plaintiff, but there is no evidence to acknowledge this in addition to the testimony of Non-Party 2 (except for the part of trust) of the lower court witness who is not believed to be a party member, and thus, the above assertion is groundless. (No objection is raised to the part of the lower court’s recognition of the said money and only the Plaintiff appealed)

Therefore, Defendant Young-gu has a duty to pay to the Plaintiff the amount of KRW 2,791,570 and KRW 130,000 per annum from June 1, 1971 to August 2, 1972; KRW 25 percent per annum within the scope prescribed by the Interest Limitation Act from August 3, 1972 to the full payment; and KRW 2,61,570 from October 3, 1971 to the full payment.

(3) The portion of the claim against the real estate stated in the Schedule No. 1.

In accordance with the above recognition that the plaintiff has a monetary claim against the defendant Young-gu, and in light of the witness of the court below, the testimony of the non-party 2 (excluding the part not trusted in the preceding), the testimony of the non-party 3, and the whole purport of the party's argument in the first and second verification results (excluding the part not trusted in the future), it can be recognized that the defendant Young-gu, while knowing that it would prejudice the plaintiff as the creditor, he would sell the land as the only property of the defendant on September 13, 1971, to the defendant 2,660,00 won, like the above ground building. The testimony of the defendant 2 and the statement of the suspect examination of the non-party 5 and the statement of the party examination of the non-party 5 among the testimony and the statement of the party examination of the non-party 5 of the court below as to the non-party 5 and the non-party 5,

In addition, as long as the defendant Young-gu, who is the debtor, was in bad faith, the defendant 2, who is the beneficiary, is presumed to be in bad faith. However, although the defendant alleged that he had acted in good faith at the time of the above sale and had known that he would prejudice the creditor, the above assertion is groundless since there is no evidence other than the evidence not accepted by the above member.

Thus, the contract for the cancellation of the sale on September 10, 1971 between Defendant Young-gu and Defendant 2 on the real estate listed in the annexed list No. 1 list between Defendant Young-gu and Defendant 2 shall be revoked, and Defendant 2 shall be obligated to implement the procedure for the cancellation of the registration of the transfer of ownership on September 14, 1971 on the said real estate by the Daegu District Court No. 43186.

(4) Part on the claim for the real estate described in separate list No. 2

The plaintiff's attorney argues that the house at issue was owned by the defendant Young-gu and entrusted by the defendant 3, the wife on December 24, 1970, and that the defendant Young-gu sold the house to the defendant 2 on September 10, 1971 with the knowledge that it would prejudice the creditor, and thus, the trust contract was terminated by subrogation of the above long-term Gun through service of the copy so long as it was sold to the defendant 2 on September 10, 1971, and that the defendant 3 and the defendant 2 (preliminaryly, between the defendant 3 and the defendant 2) seek the cancellation of the above sale contract and the cancellation of the ownership transfer registration due to the above sale. Thus, in the case of the trust, the trustee is an externally complete owner in the case of the trust, and it is apparent that the defendant 3, the trustee under the plaintiff's argument itself, was selling the house at issue to the defendant 2, so it cannot be claimed that the trust contract was cancelled after the disposal of the entrusted goods, and the transfer registration between the plaintiff 2 and the above defendant 3.

Therefore, the plaintiff's claim for objection is reasonable within the above scope of recognition, and the remaining part is dismissed as it is without merit. The judgment of the court of first instance is unfair with the purport of this, and the plaintiff's appeal is reasonable. Thus, the judgment of the court of first instance is modified as the judgment of the court of first instance, and it is so decided as per Disposition by applying Article 95, 89, 92, and 93 of the Civil Procedure Act to the burden of

[Attachment List omitted]

Judges Sho-ho (Presiding Judge) Nowho-ho