2018Da223986 Revocation of Fraudulent Act

A

Attorney Cho Jae-hwan et al., Counsel for the defendant

B

Attorney Han-chul, Attorney Lee Jong-chul, Lee Jong-sung, Counsel for the plaintiff-appellant

Suwon District Court Decision 2017Na67001 Decided February 14, 2018

July 26, 2018

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

The grounds of appeal are examined.

1. Where a principal registration has been made on the basis of a provisional registration, the determination as to whether a legal act which is the cause of a provisional registration and a legal act which is the cause of a principal registration meet the requirements for a fraudulent act ought to be made at the time of the juristic act that is the cause of a provisional registration, unless it is clearly different (see Supreme Court Decision 2013Da1518, Mar. 27, 2014).

(1) On July 28, 2014, G and the lower judgment made a promise to sell and purchase each real estate listed in the separate sheet No. 1 of the lower judgment, and on July 29, 2014, C completed the procedure for provisional registration of ownership transfer claim based on the said promise to sell and purchase each real estate in the name of G.

(2) On December 5, 2014, G completed the additional registration procedure prior to the transfer of ownership transfer claim based on the transfer of contract as of each of the above real estate under the name of the Defendant on December 4, 2014.

(3) On December 15, 2014, C sold each of the above immovables to the Defendant, and on the same day, C completed the procedure for principal registration of transfer of ownership based on the above provisional registration with respect to each of the above immovables under the Defendant’s name.

3. As to the Plaintiff’s claim seeking the cancellation of the sales contract as of December 15, 2014 between C and the Defendant on each of the above real estate and restitution thereof, the lower court affirmed the first instance judgment ordering compensation for damages for the value following the cancellation of the sales contract and the restitution thereof, on the ground that, even though C had been in excess of the obligation at the time of the above sales contract, since the sale of each of the above real estate to the Defendant was reduced in the property of general creditors including the Plaintiff, even though it was in excess of the obligation, the above sales contract constitutes a fraudulent act, which is recognized as C’s intention, and is presumed

However, as seen earlier, since the transfer registration made on the ground of the above sale contract is based on the above provisional registration, the lower court should have determined whether the requirements for fraudulent act were met at the time of the above sale contract, unless the above sale contract, which is the ground for provisional registration, is clearly different from the above sale contract, which is the ground for provisional registration.

Nevertheless, the lower court erred by misapprehending the legal doctrine on the judgment of fraudulent act in a case where the principal registration was completed on the basis of provisional registration in determining whether the said purchase and sale agreement and the above sale and purchase agreement are clearly different, and thereby failing to exhaust all necessary deliberations.

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

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in