[1] Whether a legal act between a beneficiary of a fraudulent act and a subsequent purchaser may be subject to a claim for revocation (negative)

[2] Whether a subsequent purchaser can be demanded to cancel the registration of a subsequent purchaser's name on the ground of a subsequent purchaser's fraudulent act without seeking revocation of the fraudulent act (negative)

[1] In a lawsuit seeking revocation of a fraudulent act, the obligee is the obligor’s legal act subject to a claim for revocation, and the legal act between the beneficiary and the subsequent purchaser cannot be the subject of a claim for revocation. The same applies to the case where the obligee only becomes the obligor of a

[2] In a lawsuit where the creditor did not separately seek revocation of the legal act between the debtor and the beneficiary, who is a fraudulent act, and the subsequent purchaser of a fraudulent act, the creditor cannot immediately seek revocation of the establishment registration of a neighboring mortgage in the name of the subsequent purchaser, by asserting that the legal act is a fraudulent act. In a case where the creditor had filed a separate lawsuit claiming revocation of the fraudulent act against the beneficiary, even if the creditor had already filed a lawsuit against the beneficiary, the revocation lawsuit on the fraudulent act is relative and its validity is not effective against the subsequent purchaser, so the creditor should not demand revocation of the fraudulent act between the debtor and the beneficiary, separate from the lawsuit.

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code

[2]

[Plaintiff-Appellee] 84Ma610 decided Nov. 24, 1984 (Gong1985, 347)

Industrial Bank of Korea (Attorney Kang Jae-hun et al., Counsel for the defendant-appellant)

Civil Water Month (Attorney Lee Young-young et al., Counsel for the defendant-appellant)

1. The part concerning the claim for cancellation of the mortgage contract among the lawsuit of this case is dismissed.

2. The plaintiff's remaining claims are dismissed.

3. Litigation costs shall be borne by the plaintiff.

The contract to establish a mortgage concluded on January 7, 1995 with respect to each real estate listed in the separate sheet between the defendant and the non-party 2 shall be revoked. The defendant will implement the procedure for registration of cancellation of the registration of the establishment of a mortgage to the plaintiff, which was made under the receipt No. 468 of January 9, 1995 with respect to each of the above real estate.

1. Determination as to the legitimacy of a lawsuit on the part of the revocation claim

The plaintiff, while being aware that the non-party 1 would harm the plaintiff, he donated the real estate recorded in the attached list, which is the only property of the non-party 2, to the non-party 2. The non-party 2 and the defendant knowingly concluded a mortgage contract concerning the above real estate and completed a mortgage establishment registration under the name of the defendant. The defendant and the non-party 2 seek cancellation of the above mortgage contract

However, in a lawsuit seeking revocation of a fraudulent act, a creditor is the subject of a debtor's claim for revocation, and a juristic act between the beneficiary and the subsequent purchaser cannot be the subject of a claim for revocation, which is the same as in the case where the creditor only files a lawsuit seeking revocation against the subsequent purchaser as the defendant in the lawsuit seeking revocation. Thus, the lawsuit on the part of the claim seeking revocation of the mortgage contract between the non-party 1 and the subsequent purchaser, who are the beneficiary, by asserting that the donation contract between the

2. Determination on the claim for cancellation of the registration of creation of a neighboring mortgage

(a) Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence 1 to 36, Gap evidence 2-1 to 2-7, Eul evidence 3-1 to 7, Eul evidence 13, and Eul evidence 14, and there is no counter-proof.

(1) On March 21, 1994, the Plaintiff entered into a credit transaction agreement with the non-party vice versa Co., Ltd. (hereinafter referred to as the "non-party company"), and on the same day, the non-party 1, a director of the non-party company, guaranteed the non-party company's obligation to the plaintiff within the limit of 450,000,000 won.

(2) Under the above credit transaction agreement, the non-party company borrowed 643,62,063 won in total over 34 times between November 2, 1994 and January 6, 1995, and repaid only 14,80,000 won among them, and defaulted on December 30, 1994.

(3) On November 28, 1994, Nonparty 1 completed the registration of ownership transfer for each real estate listed in the separate sheet (hereinafter referred to as the “instant real estate”) under the name of Nonparty 2, the wife of Nonparty 2, which was the Seoul Civil District Court receipt No. 45327 on the same day donation. At the time, Nonparty 1 did not have any property other than the above real estate.

(4) On January 9, 195, Nonparty 2 and the Defendant completed the registration of creation of a mortgage consisting of KRW 70,000,000 for the maximum debt amount under the name of the Defendant on the ground of a mortgage-backed contract concluded on January 7, 1995, which was the Seoul District Court receipt No. 468 of the Gwanak-gu District Court No. 468 regarding the instant real estate.

(5) On the other hand, on March 14, 1995, the plaintiff filed a lawsuit seeking the cancellation of the above gift contract between the non-party 2 and the non-party 1 with the defendant, and won the lawsuit seeking the cancellation of the above transfer of ownership (party 95 Gohap21773, etc.) in the non-party 2's above transfer of ownership (the plaintiff is still pending in the appeal trial).

(b) Markets:

(1) The Plaintiff asserted as stated in the above 1. Paragraph, and sought the cancellation of the registration of the establishment of the establishment of the above neighboring to the real estate in the name of the Defendant.

(2) However, the creditor did not separately seek revocation of the legal act between the debtor and the beneficiary, who is the fraudulent act, in a lawsuit where the subsequent purchaser of the fraudulent act was the defendant, and merely asserted that the said legal act is a fraudulent act and cannot immediately seek revocation of the registration of the establishment of a neighboring mortgage in the name of the subsequent purchaser. Therefore, the plaintiff's above claim is not reasonable in itself (such as acknowledged above, that the plaintiff filed a separate lawsuit seeking revocation of the fraudulent act against the non-party 2, who is the beneficiary, but the validity of the lawsuit seeking revocation of the fraudulent act is relative, and thus the subsequent purchaser, who is not the defendant of the lawsuit, is not effective. Thus, the plaintiff should not file a claim seeking revocation of the fraudulent act between the above non-party in relation to the defendant in the lawsuit

(3) On the other hand, the above facts are as follows: (a) it was clear that the above facts were 0-party 1 and the above facts were as follows; (b) it was hard for the above 0-party 2 to resolve the disputes; (c) it was decided that the above facts were 0-party 1 and the above facts were 0-party 1 and the above facts were as follows; (d) it was decided that the above facts were 0-party 1 and the above facts were 0-party 10-party 1 and the above facts were as follows; (d) it was decided that the above facts were 0-party 2 and the above facts were 9-party 10-party 1 and 8-party 10-party 1 and 10-party 10-party 1 and the above facts were 9-party 2 were as follows; (e) it was decided that the above facts were 0-party 1 and the above facts were 9-party 1 and the above facts were 9-party 2 were 10-party 1 and 2.

3. Conclusion

Therefore, the plaintiff's lawsuit concerning the claim for revocation of fraudulent act among the lawsuit in this case is dismissed, and the request for cancellation of the registration of creation of a neighboring mortgage is dismissed as per Disposition.

[Attachment]

Judges Sho-hee (Presiding Judge) Kim Chang-hee