Whether, in determining the debtor's insolvency in a lawsuit seeking revocation of a fraudulent act, the property with no property value should be excluded from active property (affirmative), and the requirements to include the right to benefit in trust property as active property and the method of evaluating the value thereof.

Article 406(1) of the Civil Act

Supreme Court Decision 2004Da58963 Decided January 28, 2005 (Gong2005Sang, 398) Supreme Court Decision 2012Da1449 Decided October 31, 2013

Gyeongdong Industrial Co., Ltd. (Law Firm Solar, Attorneys Sung Chang-in et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorneys Lee Dong-ho et al., Counsel for the defendant-appellant)

Busan District Court Decision 2012Na9086 Decided October 31, 2012

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. In a lawsuit seeking revocation of a fraudulent act, an active property shall be excluded from the assessment of an active property to determine whether the obligor’s insolvency is a debtor’s property, unless there are special circumstances. In the event that the property is a claim, the active property should be included only when it is reasonably affirmed that it is not certain to receive payment easily. This also applies to a case where the property is a beneficial right to trust property (see Supreme Court Decision 2004Da58963, Jan. 28, 2005, etc.).

Meanwhile, the value of the right to benefit to the trust property is calculated by deducting the necessary expenses and the remuneration from the value of the trust property anticipated at the time of the termination of the future trust, and then evaluating the remaining amount after deducting the debts owed to the preferential beneficiary at the present price at the time of the fraudulent act. The value of the right to benefit to the trust property is not simply assessed based on the market value of the trust property at the time of the fraudulent act (see Supreme Court Decision 2012Da1449, Oct. 31, 2013

2. Review of the reasoning of the lower judgment and the evidence adopted up to the lower court reveals the following facts.

A. From March 17, 2009, the Plaintiff began to supply ready-mixeds, etc. to Indones Integrated Construction Co., Ltd. (hereinafter “Indones Integrated Construction”). On September 25, 2009, Indones Integrated Construction Co., Ltd. (hereinafter “Indones Integrated Construction”), on the same day, purchased approximately 602.1m2m2 (hereinafter “the instant land”) and completed the registration of ownership transfer on the same day.

B. In the case of the Indones General Construction, the Defendant KB Real Estate Trust Co., Ltd. (hereinafter “KB Real Estate Trust”), on the ground of trust in the future, the registration of ownership transfer is completed on December 24, 2009 with respect to the Gu-si ( Address 2 omitted), the Gu-si (hereinafter “Gu-U.S. land”); and on March 30, 2010 with respect to the instant land, each registration of ownership transfer is completed.

C. On February 11, 2011, the payment order was finalized to order the Plaintiff to pay KRW 91,903,540 to the Plaintiff, who filed an application for payment order with the Busan District Court for the payment order for ready-mixed Construction (No. 2011 tea 2303).

D. In accordance with the agreement between Defendant KB real estate trust and priority beneficiary, who is the trustee under the trust agreement on the instant land, and Defendant 1, agreed to change the project implementer to Defendant 1. Accordingly, on May 27, 2011, as to the instant land, Defendant KB real estate trust from Defendant KB real estate trust, and returned the ownership by completing the registration of transfer from Defendant 1 due to the instant sales contract on the same day, and then completing the registration of transfer of ownership based on the trust in the future of Defendant KB real estate trust with Defendant 1 as the truster.

3. The lower court acknowledged that, at the time of the instant purchase and sale contract, personal aggregate construction had no other property except the instant land at the time of the instant purchase and sale contract, on the other hand, had been in excess of the obligation, such as the existence of goods payment liability against the Plaintiff, and based on its reasoning, determined that selling the instant land, the sole property for personal aggregate construction, which was in excess of the obligation, pursuant to the instant sales contract, constitutes a fraudulent act that reduces common security among general creditors, including the Plaintiff, and that the bad faith of Defendant KB real estate trust, the beneficiary, and the subsequent purchaser, was presumed, accepted all the Plaintiff’s claim against Defendant 1 for the registration of transfer of ownership in the future from personal aggregate construction and for the cancellation of ownership transfer registration, which was caused by the trust in the future of

4. However, we cannot agree with the above judgment of the court below.

In light of the above facts in light of the legal principles as seen earlier, in a situation where Raz General Construction is entrusted to Defendant KB Real Estate Trust with the land of this case and the old land of this case, active property is considered as beneficial rights under the trust agreement for the two land. Therefore, whether the above right to benefit in this case is in excess of debt should be determined based on the appraised value of the right to benefit in this case. Therefore, the court below should have first confirmed whether the above right to benefit in this case is valuable as active property by evaluating the right to benefit in this case (if the above right to benefit in this case is not valuable as active property, it shall not be deemed as fraudulent act due to the lack of a decrease in positive property even if Raz General Construction completed the trust contract and redeemed the land of this case and sold the land of this case). Furthermore, if the above right to benefit in this case has value as active property, it should have confirmed whether the value of active property, such as the right to benefit in this case’s two land, is capable of collecting debts to all creditors, and further should have reviewed whether it constitutes a fraudulent sales contract.

Nevertheless, the lower court held that the instant sales contract was a fraudulent act without considering the right to benefit from old and previous land, on the ground that the instant land, which was trusted, was the only active property for the comprehensive construction without any burden due to temporary recovery of the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on determination of fraudulent act and assessment methods of property in a lawsuit seeking revocation of fraudulent act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

In addition, the court below pointed out that the registration of transfer of ownership completed in the future of defendant 1 and the registration of transfer of ownership due to the trust completed in the future of defendant KB real estate trust as the plaintiff claims by the method of restitution following fraudulent act in the above cases, if the plaintiff's fraudulent act is cancelled, the creditor of the plaintiff et al., such as the plaintiff et al. does not result in securing more than the right to benefit than the right to benefit under the trust agreement held before the fraudulent act, and if such result can be a result, it is necessary to review whether the return of the original object is impossible and it is necessary to order restitution by the method of compensation for value.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court 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.

Justices Kim Chang-suk (Presiding Justice)