Seoul High Court 201Na98145 (24 August 2012)

Since it is difficult to see it as the most complicated, it does not constitute a fraudulent act.

It is merely a mere fact that the communications fee, newspaper price, etc. have been borne by the bank account under the name of the defendant, and such circumstance is difficult to deem that such circumstance constitutes a special circumstance that can lead to a divorce by agreement, and thus, it is reasonable to deem it as division

2012Da82084 Revocation of Fraudulent Act

Korea

EAA

Seoul High Court Decision 2011Na98145 Decided August 24, 2012

February 28, 2013

The part of the judgment below against the defendant is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Divorce by agreement provides that the effect of divorce shall take place upon reporting as prescribed by the Family Court Act on the registration of family relations upon confirmation of the intention of divorce. Thus, to recognize divorce as null and void as a divorce by agreement, any special circumstances that anyone would have obtained should be recognized. If so, it is reasonable to deem that any person had the intention of temporary divorce between the parties to divorce or to have the intention of legitimate divorce by law (see, e.g., Supreme Court Decision 2000Da59579, May 29, 2001) in light of the legal and de facto seriousness of the declaration of divorce (see, e.g., Supreme Court Decision 200Da59579, May 29, 200). Meanwhile, division of property at the time of divorce is too excessive to the extent that it cannot be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and it is limited to the extent of revocation by fraudulent act that is subject to obligee’s right of revocation due to the above special circumstances (see, e.

2. The court below acknowledged the facts as stated in the judgment of the court of first instance, citing the reasoning of the judgment, and the formerB and the defendant were legally married on December 6, 1974, but they divorced on May 30, 2008, and the formerB paid KRW 000,000,000,000, which was paid by cashier's checks, out of the remainder of the purchase price of the third real estate in this case on December 4, 2007, paid to the defendant on December 5, 2007, and the defendant deposited the above amount into the Seoul Securities Account in the name of the defendant. The court below rejected the defendant's assertion that the above amount was paid by the defendant as a division of property according to divorce in consultation with the formerB, and in light of the circumstances as stated in its reasoning, it is difficult to view that the payment of the amount in this case is a division of property against the defendant.

3. However, it is difficult to accept the judgment of the court below for the following reasons.

A. As the lower court first determined, if the Defendant received the instant amount equivalent to a significant percentage of the active property of the formerB from the former BB on December 5, 2007, which was recognized by the lower court, from the former B on May 30, 2008, and the payment of the instant amount was made six months prior to the filing of a divorce report, it cannot be concluded that the instant amount was not division of property upon divorce. Furthermore, the remainder of the lower court’s determination seems that the formerB still lives together with the Defendant’s residence until October 201, or that the formerB did not appear to have made a share transaction with the Defendant’s account, or that the former B would have been more likely to have been subject to the Defendant’s agreement on the share transfer from December 26, 2008 to December 22, 2010, based on the following circumstances, it is difficult to view that the agreement was made between the Defendant and the former B’s account under the name of the Defendant, and that it would have been more reasonable to deem that the Defendant’s property division had been revoked.

B. Nevertheless, solely on the grounds stated in its reasoning, the court below concluded that the advance payment cannot be deemed as division of property following divorce. The judgment below erred by misapprehending the legal principles on revocation of fraudulent act and division of property, thereby failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.