2017Da25009 Revocation of Fraudulent Act

Credit Guarantee Fund

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11. K;

12.N

13.0

Busan High Court Decision 2016Na58089 Decided July 19, 2017

December 5, 2017

The part concerning Defendant N andO among the judgment below is reversed, and that part of the case is remanded to Busan High Court.

All appeals by the Defendants other than Defendant N andO are dismissed.

The costs of appeal between the Plaintiff and the Defendants other than Defendant N andO shall be borne by the remaining Defendants.

The grounds of appeal are examined.

1. Determination on the grounds of appeal by Defendant N andO

A. Since the beneficiary’s bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is liable to prove his/her good faith in order for the beneficiary to be exempted from his/her liability. In such cases, the issue of good faith shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the following: (a) the relationship between the debtor and the beneficiary; (b) the details and motive leading up to the act of disposal between the debtor and the beneficiary; (c) the process and motive leading up to such act; (d) there are no special circumstances to suspect that the terms and conditions of the act of disposal are normal and reasonable; and (e) there are objective materials to support that the act of disposal

B. As to the Defendants’ assertion that P’s act constitutes a fraudulent act, Defendant N andO was a bona fide beneficiary, in light of the following: (a) the registration of ownership transfer in the above Defendants’ name was completed without paying the remainder following the date following the conclusion of a sales contract; (b) the sales price was lower than the officially announced price; (c) the P demanded payment of the remaining KRW 100 million in cash; and (d) all transaction procedures were conducted only seven days; and (e) the purchaser would have been doubted as to the reason, if the purchaser was ordinarily,; and (b) the Defendants did not endeavor to purchase the land for the purpose of constructing a new building but rather leased the land to P, it was insufficient to recognize it as a bona fide good faith.

C. However, we cannot accept the above judgment of the court below as it is.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The debtor P filed a lawsuit claiming ownership transfer registration on the ground of the completion of prescriptive acquisition with respect to the land (hereinafter “the instant land”) located in the name of U against U on September 27, 2013, and the judgment became final and conclusive around October 15, 2013. (B) The above Defendants purchased the instant land from P through the brokerage of the CA, an authorized broker, and the CA requested P to dispose of the instant land at around that time, and the CA introduced the land for construction of the usual rental building to Defendant N, “P stored at a level of KRW 1-20 million compared to the market price of the instant goods at the time,” and stated to the effect that “the above Defendants, not the P name, displayed the judgment and the confirmation of the above Defendants, and made registration under the name of P.C.”

C) The Defendants purchased the instant land in KRW 250 million on November 1, 2013, and paid KRW 150 million on the date of the contract as cash and check. On the following day, the said Defendants completed the registration of ownership transfer in the name of P at the same time, and paid the remainder KRW 100 million on November 20, 2013.

D) After that, around November 29, 2013, the said Defendants conducted a cadastral survey on the instant land and prepared a plan to build a commercial building. Since the instant land was leased to a P who owned an adjacent building for a parking lot site, the said Defendants currently leased the instant land to the CY Co., Ltd., which acquired the instant building.

2) As can be seen, the above Defendants purchased land through the brokerage of the CA, a real estate broker, and paid in full KRW 250 million as an end-user of the instant land under the circumstance that there is no relationship of relationship with P or transactional relationship with P, and it is difficult to understand the credit or credit status of P. In view of the following: (a) the purchase price is somewhat low and the price was paid in cash and check; and (b) the remainder was registered before the payment was made; (c) the payment was made in cash and check at the seller’s request while adjusting the price in the real estate transaction intended to sell as the so-called “sale”; and (d) the payment was made in cash and check at the seller’s request; and (e) it is difficult to view that the above Defendants’ determination of the purchase price and prompt transaction procedure was out of ordinary transaction terms and conditions. The aforementioned Defendants requested cadastral surveying of the instant land to the Cadastral Corporation around November 29, 2013 immediately after the purchase and sale of the instant land; and (e) the Defendants did not assert any motive or assertion that the instant land.

3) In light of the aforementioned legal principles in light of the aforementioned circumstances, there is sufficient room to view the said Defendants as a bona fide beneficiary who did not know that the said Defendants would prejudice the Plaintiff, a creditor at the time of the instant sales

D. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the good faith of the beneficiary of the fraudulent act, or by misapprehending the facts contrary to the rules of evidence, thereby adversely affecting the conclusion of the judgment. The Defendants’ ground of appeal assigning this error is with merit.

2. Determination on the remaining Defendants’ grounds of appeal

For reasons indicated in its holding, the court below rejected the Plaintiff’s claim for indemnity against P and L becomes a preserved claim for the obligee’s right of revocation, and the donation of each real estate held by the obligor should be revoked as a fraudulent act; further, it did not constitute a fraudulent act on the grounds stated in its holding that each of the above real estate was registered in P name only because it was registered in P name as a property owned by P or a subsequent purchaser, and that the above real estate was completed in accordance with the agreement to distribute land around 1994. In light of the relevant legal principles, the court below’s aforementioned determination is just and there is no error in the misapprehension of legal principles as to P’s obligation, the actual ownership and distribution agreement, the mistake of facts against the rules of evidence as to the Defendants’ good faith, and the burden of proof as to the preserved claim and the duty of good faith.

3. Conclusion

Therefore, the part of the judgment below regarding Defendant N andO is reversed, and this part of the case is remanded to the court below for a new trial and determination. All of the remaining Defendants’ appeals are dismissed. The costs of appeal between the Plaintiff and the remaining Defendants are assessed against the remaining Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Jae-tae

Chief Justice Lee Dong-won

Justices Kim Jae-in