[1] The meaning of the intention of amnesty, which is a subjective element of the obligee's right of revocation

[2] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act

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

[1] Supreme Court Decision 97Da57320 decided May 12, 1998 (Gong1998Sang, 1615), Supreme Court Decision 99Da29916 decided Nov. 12, 199 (Gong1999Ha, 2490) / [2] Supreme Court Decision 95Da27905 decided Nov. 28, 1995 (Gong1996Sang, 1734 decided Oct. 28, 1997) (Gong1997Ha, 3642), Supreme Court Decision 200Da17346 decided Jun. 27, 200 (Gong2000Ha, 1759) and Supreme Court Decision 203Da32849 decided Oct. 28, 2005 (Gong20350 decided Mar. 23, 2005)

Korea

Cho River-gu et al. (Attorney Cho Jong-sik et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2003Na4578 delivered on January 30, 2004

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below rejected the defendants' assertion that each purchase and sale reservation of this case's real estate stated in the purport of the claim does not constitute a fraudulent act because it was inevitable for the defendants to provide financing because a beneficial construction corporation (hereinafter referred to as "profit-making construction") was in financial difficulties, and therefore made a provisional registration for sale or purchase of each of the real estate stated in the purport of the claim against the defendants. Rather, in full view of the evidence stated in Paragraph 1 of the reasoning of the judgment of the court of first instance, the defendants can find the facts that each of the above provisional registration of this case was completed based on the security of the existing claim against a beneficial construction or the promise for sale or purchase of each of the real estate as a substitute payment. In light of the records, the above fact-finding and judgment of the court below are justified, and there is no violation of the rules

2. Regarding ground of appeal No. 2

The court below accepted the judgment of the court of first instance and recognized the fact that the beneficial construction was in excess of the debt amounting to 18,97,747,721 won in total and 19,980,262,953 won in total, and the beneficial construction was in excess of the debt amounting to 19,98,980,262,953 won in case of the assets of beneficial construction as of December 31, 2001 and the assets of beneficial construction were in excess of the debt amounting to 19,980,747,721 won in total. In light of the records, the court below held that the above fact-finding and judgment of the court below are just and there is no violation of the rules of evidence as alleged in the records.

3. As to the third ground for appeal

The so-called obligor’s bad faith, i.e., the obligor’s awareness that the obligor, as a subjective element of the obligee’s right of revocation, should not prejudice the obligee, that the obligor would not be able to fully satisfy the obligee’s claims because the obligor’s property has been reduced by the obligor’s act of disposal of property, and that the obligor’s joint security, which has already been insufficient or insufficient, may not be sufficient to satisfy the obligee’s claims, and such recognition does not require awareness that it would prejudice a specific obligee (see Supreme Court Decision 97Da57320, May 12, 1998, etc.).

The court below accepted the judgment of the court of first instance, it is not sufficient to recognize that the statement in Eul evidence No. 1 alone did not intend to cause harm to the defendants, and there is no other evidence corresponding thereto. Rather, the defendants recognized the excess of the liability for beneficial construction at the time of each purchase and sale reservation and provisional registration of this case, and recognized the fact that each purchase and sale reservation of this case and provisional registration of this case reduced the liability property for beneficial construction, and thus, there is a shortage of joint security. In light of the above legal principles and records, the above fact-finding and determination of the court below are just, and there is no error of law such as violation of the rules of evidence

4. As to the fourth ground for appeal

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been established a legal relationship that serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future, and in the near future, the claim may also become a preserved claim in the obligee’s right of revocation in the near future (see Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 200Da64038, Nov. 26, 2002, etc.).

The court below affirmed the judgment of the court of first instance, and judged that the Plaintiff’s claim for value-added tax of KRW 140,844,850 among the Plaintiff’s tax claims was established on December 31, 2001, which was after the date of the fraudulent act in this case, but the tax liability was established on December 31, 2001, which was after the date of the fraudulent act in this case, but there was a high probability that the legal relationship, which was the basis of the establishment of the claim, has already been established in the near future, and that the claim is established in the near future, and that the tax claim was established in the near future. In light of the above legal principles and records, the judgment of the court below that each of the tax claims in this case includes the preserved claim of the obligee in this case, is just in

5. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)