Whether the court may ex officio examine evidence in cases where there is doubt as to whether the period for filing a lawsuit for revocation by a creditor has been complied with (affirmative), and whether the court has a duty to ex officio confirm compliance with the period, even in cases where no circumstance is found to suspect that the period has lapsed from all the litigation materials presented to the court (negative)

[1] Article 406 (2) of the Civil Code, Article 292 of the Civil Procedure Act

Supreme Court Decision 95Da50875 Decided May 14, 1996 (Gong1996Ha, 1850) Supreme Court Decision 2000Da44348 Decided February 27, 2001 (Gong2001Sang, 774) Supreme Court Decision 2001Da73138, 73145 Decided July 26, 2002 (Gong2002Ha, 2051)

Seoul High Court Decision 2001Na14488 decided May 1, 2001

Goyoung (Attorney Kim Jong-chul, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2004Na840 Delivered on November 10, 2004

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

1. As to the appeal period and argument

A lawsuit for revocation by a creditor shall be instituted within one year from the time when the creditor becomes aware of the cause for revocation. Since the period for exercising the above right of revocation is the period for filing a lawsuit, the court shall ex officio investigate whether the said period is observed and dismiss the lawsuit for revocation by a creditor filed after the said period expires as illegal. Thus, where there is doubt as to whether such period has been observed, the court may ex officio examine the evidence to the extent necessary, but the court does not have a duty to ex officio examine the additional evidence to confirm whether the period has been observed unless there is any circumstance to suspect that the period has lapsed when examining all the litigation materials presented to the court through all the litigation materials (see Supreme Court Decision 200Da44348, Feb. 27, 2001).

According to the records, the provisional registration was made under the name of the defendant on August 5, 199 with respect to the real estate of this case, and the non-party new bank, on October 4, 200 with the right to claim the cancellation registration of the provisional registration as the right to preserve the right to claim the cancellation registration of the provisional registration, received a provisional disposition registration on October 6, 200, and completed the provisional disposition registration pursuant thereto, and thereafter filed a lawsuit against the defendant for the revocation of the provisional disposition on August 5, 1999. However, unless there is no evidence to prove that the plaintiffs had known of the above provisional registration and provisional disposition registration at the time of the filing of the lawsuit of this case, it cannot be said that the plaintiffs had been aware of the existence of the provisional registration as of August 5, 199, and there is no other evidence to suspect that the plaintiff had committed the fraudulent act of this case since 1 year prior to the filing date of the lawsuit of this case.

Therefore, the court below did not ex officio examine evidence to determine whether the period of filing a lawsuit under Article 406 (2) of the Civil Code has expired, and there is no error of law such as misunderstanding of legal principles as to ex officio investigation matters asserted in the judgment below as the ground for appeal.

2. As to the assertion on the intent of fraudulent act and deception

According to the reasoning of the judgment of the court below, the court below rejected the defendant's loan of 10,00,000 won on March 30, 1998 and 60,000,000 won on March 29, 199 to the non-party good offices and concluded a pre-contract for sale and purchase as of August 5, 199 to secure it. Accordingly, the court below concluded a provisional registration of this case on October 6, 199, and then lent 50,000 won additionally to the above good offices on October 6, 1999, and rejected the defendant's promise to sell and purchase the above total amount of 110,00,000,000 won borrowed from the defendant as the new construction of the existing obligation and the defendant's promise to sell and purchase the above real estate for 19,000 won on March 29, 199, and it was presumed that the defendant's promise to sell and purchase the above real estate for 195,0,09,0.5.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to fraudulent act and intention of deception, as otherwise alleged in the grounds of appeal.

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

Justices Shin Shin-chul (Presiding Justice)