[1] Whether an agreement to change the name of the building owner constitutes a fraudulent act where an obligor who has no specific property other than a building under construction agrees to change the name of the building owner in the beneficiary's future to transfer the building that is a responsible property to the beneficiary (affirmative)

[2] The meaning of "the case where it is impossible or substantially difficult to return originals," where compensation for the value of the object of the fraudulent act is acknowledged as a performance of the obligee's duty to restore following the revocation

[1] If an obligor, other than a building under construction, has agreed to transfer the above building, which is a responsible property, to the beneficiary, to change the name of the owner in the future, then the agreement to change the name of the owner, which can be deemed to include the above transfer agreement, may be deemed to have the effect of reducing the obligor's property, and may be a fraudulent act detrimental to

[2] If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary or subsequent purchaser is obligated to return the subject matter of the fraudulent act to the debtor as restitution. If it is impossible or considerably difficult to return the subject matter, the beneficiary or subsequent purchaser is liable to compensate for the equivalent amount of the value of the subject matter of the fraudulent act as a performance of the duty to restore, and the case where the return of the subject matter is impossible or considerably difficult is not simply absolute or physical impossible, but it is difficult for the creditor to expect the realization of the performance from the beneficiary or subsequent purchaser in light of the concept of social experience

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

[2] Supreme Court Decision 97Da58316 delivered on May 15, 1998 (Gong1998Sang, 1627)

Plaintiff

Defendant (Attorney Han-hee et al., Counsel for defendant-appellant)

Seoul High Court Decision 2015Na2756 decided December 7, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

If an obligor, in addition to the building under construction, has agreed to transfer the above building, which is a responsible property, to the beneficiary, to change the name of the beneficiary in the future, the agreement to change the name of the owner, which can be deemed to include the said agreement, may be an act that causes the effect of reducing the debtor's property, and may be a fraudulent act that

In full view of the circumstances as indicated in its reasoning, the lower court determined that the agreement between the Nonparty and the Defendant, who had no particular property other than the instant building in an incomplete state, was a fraudulent act detrimental to the Plaintiff, the obligee, and that there was no evidence to reverse the presumption of bad faith as to the said fraudulent act by the Defendant, the beneficiary.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to fraudulent act, presumption of beneficiary's bad faith, and attribution of building ownership.

2. Regarding ground of appeal No. 4

If a creditor’s revocation of a fraudulent act and a claim for restitution are acknowledged, the beneficiary or subsequent purchaser is liable to return the object of the fraudulent act to the debtor as restitution. If it is impossible or considerably difficult to return the original object, the beneficiary or subsequent purchaser is liable to compensate for the value equivalent to the value of the object of the fraudulent act as a performance of the duty to restore the original object. In this context, where it is impossible or considerably difficult to return the original object, it refers not to cases where the return of the original object is not simply absolute or physical impossible, but cases where the creditor cannot expect the realization of the performance from the beneficiary or subsequent purchaser in light of the rules of experience in the social life or the transaction concept (see Supreme Court Decision 97Da5831

For the reasons indicated in its holding, the lower court determined that, on the ground that the name of the owner of the instant building was changed in the future of the Defendant, the Defendant completed the construction of the instant building and obtained approval for the use thereof, and completed the registration of ownership preservation, the lower court should further assume that it was impossible to implement the procedure for the change of the name of the building owner due

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the duty of restoration.

3. Regarding ground of appeal No. 5

In full view of the circumstances indicated in its holding, the lower court determined that the Plaintiff was liable to compensate the Plaintiff for the said money within the scope of KRW 128,03,570 for the amount of the Plaintiff’s preserved claim amounting to KRW 129,79,79,000, less than KRW 257,000,000, which is less than KRW 579,79,799,000, which was the secured debt amount of the lien extinguished due to the repayment of fraudulent act.

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the method or scope of compensation for value.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jo Hee-de (Presiding Justice)