Korea

Defendant (Attorney Lee Dong-won, Counsel for defendant-appellant)

April 11, 2014

Suwon District Court Decision 2012 Gohap5049 Decided July 5, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

In the first place, the defendant and the non-party 1 cancel the donation contract of KRW 1,030,00,000, which was concluded on October 16, 2007 between the defendant and the non-party 1, and the defendant shall pay to the plaintiff 1,030,000,000 with 5% interest per annum from the day following the day when the judgment became final and conclusive to the day when the full payment is complete. Preliminaryly, the defendant and the non-party 1 shall cancel the deposit share title trust contract between the defendant and the non-party 1 on October 16, 2007, within the scope of KRW 1,030,000,000, and the defendant shall pay to the plaintiff 1,030,000,000 and 5% interest per annum from the day after the day when the judgment became final and conclusive to the day when the full payment is complete.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Quotation of the first instance judgment

This court's reasoning is the same as the remaining part of Article 420 of the Civil Procedure Act, except for the case where the defendant added a judgment on the argument that the defendant emphasizes in particular or re-convened in this court, since it excludes the judgment on the main claim as stated in the reasoning of the judgment of the first instance.

2. Judgment on the defendant's assertion

The defendant asserts that there is no deposit claim between the non-party 1, non-party 3, and non-party 4 for the use of the payment in this case, the title trust of the deposit owner is terminated or invalidated, and there is no object of revocation of fraudulent act. The defendant did not use the payment in this case at all, and thus does not constitute the beneficiary of the lawsuit seeking revocation of fraudulent

In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in the statement of the real name verification deposit contract, it is reasonable to interpret that the deposit title holder, the actor, and the intent of a financial institution acting as the deposit owner in the deposit contract is to be the party to the deposit contract, and it is reasonable to clarify the legal relationship as to the party to the deposit contract. Furthermore, such legal principle as to the interpretation of the party to the deposit contract is equally applicable in cases where the deposit title holder himself appears in the financial institution and entered into the deposit contract or a third party such as the fund contributor, etc. entered into the deposit contract as the proxy according to the delegation by the deposit title holder (see Supreme Court en banc Decision 2008Da45828, Mar. 19, 209). Meanwhile, the fraudulent act refers to the act of disposal of the debtor's property that makes it impossible to fully satisfy the claim due to the lack of joint collateral or lack of joint collateral which is already insufficient due to the debtor's act of disposal.

In light of the following circumstances, which are acknowledged in full view of the evidence adopted in the reasoning of the judgment of the court of first instance as follows: (i) in order to terminate a fraudulent act under the purport of the Act on Real Name Financial Transactions and Confidentiality and to ensure that the title trust of the deposit owner does not exist due to the termination of a fraudulent act, Nonparty 1 may be deemed to have restored the responsible property of Nonparty 1, who was deviates from the Defendant by taking over the claim to return deposits to financial institutions or taking the procedure to change the name of the deposit owner; (ii) rather, Nonparty 1, etc., without undergoing the above procedure, withdrawn the payment in this case under the name of the Defendant in order to avoid the creditor’s compulsory execution, and used the said deposit in the name of the Defendant in existence of the above deposit owner in order to avoid the creditor’s title trust, and thus, it cannot be said that there is no subject of revocation of the fraudulent act; and (iii) considering the purport of the fraudulent act cancellation system focusing on the debtor’s responsible property as seen earlier, it is reasonable to deem that the deposit contract and the Defendant still did not have been cancelled the deposit contract.

Therefore, since the plaintiff's right of revocation has occurred as to the deposit share trust agreement between the non-party 1 and the defendant, the above argument by the defendant is without merit.

3. Conclusion

Thus, the defendant's appeal is dismissed as it is without merit.

Judges Kim Dae-ro (Presiding Judge)