The requirements for a third party’s act to constitute a tort and the criteria for determining its illegality in a case where it is difficult for a third party to enforce and satisfy a claim by means of an act that reduces a debtor’s responsible property, and thus, it is difficult for the third party to do so.

Article 750 of the Civil Act

[Plaintiff-Appellant] Plaintiff 2005Da25021 decided September 6, 2007 (Gong2007Ha, 1526)

Plaintiff 1 and 27 others (Law Firm Volcan, Attorneys Yoon Woo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han-hee, Attorneys Kim Jong-hee et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Na13047 Decided October 8, 2008

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

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

Generally, the infringement of a claim by a third party may constitute a tort, but it does not always constitute a tort, but it should be determined by specifically examining whether the infringement of a claim by a third party is established in accordance with the mode of the infringement of a claim. If the third party's act of reducing the debtor's responsible property makes it impossible or difficult for the creditor to execute or satisfy the claim, it may be deemed that the infringement of a claim constitutes a tort. However, the mere fact that the third party's act is involved in the reduction of the debtor's property to constitute a tort against the creditor is insufficient to say that the third party's act is merely involved in the act of reducing the debtor's property. The intention, negligence, and illegality of the infringement of a claim should be determined by comprehensively taking into account the contents of the infringing claim, the attitude of the infringement, the intent or the existence of the infringer's intentional act, the need to guarantee the freedom of transaction, the public interest including economic and social policy factors, and the interests between the parties, etc. (see, e.g., Supreme Court Decision 2007Da5206575.).

Based on the facts established in the judgment of the court below, the court below rejected the defendant's claim for tort liability based on the defendant's claim infringement on the ground that it is difficult to view that the defendant actively conspired with the debtor or used unlawful means contrary to social norms with the intent to obstruct the exercise of the plaintiffs' claim in the conclusion of the contract and the acquisition of the property in light of the defendant's execution of the contract of this case and the result of the lawsuit for cancellation of fraudulent act between ○○ Industry and the defendant, namely, the motive and circumstance of concluding the contract of this case, the amount of the purchase price, the progress and the result of the lawsuit for cancellation of related fraudulent act, etc.

Meanwhile, according to the records, the plaintiffs asserted that the scope of liability for tort liability due to the defendant's claim infringement should be "total amount of claims and interest in arrears of the plaintiffs," and they did not claim damages due to the revocation of fraudulent act and the impossibility of execution of final and conclusive judgment to return original property, and therefore, the court below's failure to deliberate and decide on it, which affected the conclusion of the judgment, cannot be said to be erroneous in the misapprehension of the judgment, etc.

Therefore, all appeals are 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 on the bench.

Justices Shin Young-chul (Presiding Justice)