[1] In a case where, after a fraudulent act, a creditor has been provided with real estate owned by a debtor or a third party as security, and the creditor has preferential rights to the total amount of the debt exceeding the amount of the debt in question at the time of the closure of arguments in the lawsuit for revocation of a fraudulent act, whether the creditor’s right of revocation is extinguished (affirmative)

[2] Where the act of disposal of the property by a joint guarantor constitutes a fraudulent act at the time of the act of disposal, but thereafter the creditor's preferential right to payment has been secured at the time of the conclusion of the arguments in fact-finding proceedings, the case holding that the judgment below erred in the misapprehension of legal principles since the fraudulent act was established

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

[1] Supreme Court Decision 2000Da21017 decided Dec. 8, 2000 (Gong2001Sang, 252) Supreme Court Decision 2002Da41589 decided Nov. 8, 2002 (Gong2003Sang, 46) Supreme Court Decision 2007Da63102 decided Mar. 26, 2009 (Gong2009Sang, 547)

Busan Steel Co., Ltd. (Attorney Tae-tae, Counsel for defendant-appellant)

Defendant (Attorney Kang Young-young, Counsel for defendant-appellant)

Daejeon High Court Decision 2012Na4204 decided June 12, 2013

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The right of revocation is recognized only for the remaining amount of claims, which is obtained by deducting the amount to be preferentially reimbursed from the security, if the right of preferential reimbursement is established in the future for the creditor regarding the real estate owned by the principal debtor or a third party, and the value of the real estate and the maximum debt amount are secured by the creditor regarding the whole amount of the debt in excess of the debt amount. Thus, even if the debtor performs a legal act that disposes of the sole property, it shall not be deemed a fraudulent act against the creditor. If the debt amount exceeds the value of the real estate and the maximum debt amount, then the creditor's right of revocation is recognized (see Supreme Court Decisions 2000Da21017, Dec. 8, 200; 200Da41589, Nov. 8, 2002).

In addition, the requirement of amnesty not only at the time of the act of disposal, but also at the time of the obligee’s exercise of the right of revocation (the time of closing argument in the court of fact-finding in the lawsuit of revocation. Thus, even if the obligee was harmed at the time of the act of disposal, if the obligor’s exercise of the right of revocation would not prejudice the obligee at the time of exercising the right of revocation due to reasons such as restitution of resources or reduction of obligations, the right of revocation terminates (see Supreme Court Decision 2007Da63102, Mar. 26, 2009).

Therefore, even if the obligor took a dispositive act detrimental to the obligee, if the obligee acquired the right to preferential reimbursement after being provided with the immovables owned by the obligor or a third party, and the obligee secured the right to preferential reimbursement over the amount of the obligation and the maximum debt amount at the time of closing argument in the lawsuit seeking revocation of fraudulent act, so that the obligee would not prejudice the obligee due to such dispositive act, the obligee’s right of revocation is extinguished as there is no need to preserve the property liable by the obligee’s right of revocation, and if the amount of the obligation exceeds the value of the immovables and the maximum debt amount, the obligee’s right of revocation shall

2. In full view of the reasoning of the lower judgment, the first instance judgment partially admitted by the lower court, and the evidence duly admitted, the following facts can be revealed.

A. On April 15, 2010, co-defendant 1 and 2 in the first instance trial (hereinafter “Co-defendant 1 in the first instance trial”) concluded a donation contract with the Defendant, who is his mother, on June 3, 2010, on the instant real estate as indicated in the lower judgment.

B. On March 4, 2010, the Boan National Credit Union (hereinafter “Innan National Credit Union”) established the first priority collective security right with respect to the said 17 commercial buildings among the above 17 commercial buildings owned by Boan-si ( Address omitted), which is the maximum debt amount of 1,339,000,000. On August 2, 2010, the said donation contract was concluded, the Plaintiff established the second priority collective security right with respect to the said 17 commercial buildings, which is the maximum debt amount of 40,000,000 among the said 17 commercial buildings.

C. On July 26, 201, upon the application of the non-party union, the auction procedure of real estate rent for the said 17 commercial buildings was commenced. According to the appraisal in the above auction procedure, the total value of the said 17 commercial buildings is KRW 2,108,00,000, and the total value of the said 6 commercial buildings, which is the second secured mortgage, is KRW 539,000,000.

3. Examining the above facts in light of the legal principles as seen earlier, even if the above donation contract constitutes a speculative act, if the amount to be preferentially reimbursed from the above six commercial buildings exceeds the Plaintiff’s credit amount at the time of the closing of argument, the Plaintiff’s right of revocation regarding the above donation contract shall be extinguished, and if the remainder is deducted from the amount to be preferentially reimbursed out of the Plaintiff’s credit amount, the Plaintiff’s right of revocation shall be recognized only for that amount. Therefore, the lower court should determine the amount to be preferentially reimbursed from the above six commercial buildings based on the determination of the amount of secured debt regarding the above right of collateral in the non-party union at the time of the closing of argument, and then should have determined whether the amount to be preferentially reimbursed exceeds the Plaintiff’s credit amount at the time of the said closing of argument.

Nevertheless, the lower court determined otherwise, on the contrary, that once a fraudulent act was established, the obligee’s right to revoke the said gift contract was recognized without examining the aforementioned circumstances, by misapprehending that the obligee did not have any influence on the obligee’s right to revoke the right to revoke, even if the obligee, etc. was subsequently granted preferential payment right by setting up

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the existence of a fraudulent act revocation lawsuit and its standard time, which affected the conclusion of the judgment, by failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)