[1] The case where a claim which was not yet established at the time of the fraudulent act may exceptionally become a preserved claim

[2] The case holding that it cannot be a preserved claim for the obligee's right of revocation on the ground that it is difficult to deem that there was a high probability of establishing the claim at the time of fraudulent act

[1] In principle, a claim protected by the obligee’s right of revocation needs to be protected prior to the occurrence of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been legal relations that form the basis of establishment of the claim, and that the claim should be established in the near future. In the event a claim has been created because of its de facto in the near future, the claim may also become a preserved claim of the obligee’s right of revocation.

[2] The case holding that it cannot be a preserved claim for the obligee's right of revocation on the ground that it is difficult to view that there was a high probability of establishing the claim at the time of fraudulent act

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

[1] Supreme Court Decision 94Da2534 delivered on February 10, 1995 (Gong1995Sang, 1284 delivered on February 10, 1995), Supreme Court Decision 94Da2534 delivered on February 10, 1995 (Gong1995Sang, 1284 delivered on November 28, 1995), Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong196Sang, 173)

The Korea Technology Finance Corporation (Law Firm Central Law Firm, Attorney Jeong Jae-han, Counsel for defendant)

[Defendant-Appellant] Plaintiff (Attorney Jeong Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 94Na19510 delivered on February 8, 1995

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

We examine the grounds of appeal.

On the first ground for appeal

In principle, it is required that a claim that can be protected by the obligee's right of revocation has arisen before an act that can be viewed as a fraudulent act was conducted (see Supreme Court Decisions 77Da2467, Nov. 28, 1978; 94Da2534, Feb. 10, 1995; 94Da2534, Feb. 10, 1995; 95Da29659, Nov. 26, 1995; 95Da29659, Nov. 26, 1995).

Nevertheless, the court below duly recognized the facts as stated in its reasoning based on the evidences, and dismissed the creditor's application for provisional disposition of this case on the ground that the creditor did not acquire the right of revocation of this case on the ground that the creditor did not acquire the right of revocation of this case on the ground that the creditor did not have obtained the right of revocation of this case before the fraudulent act, the creditor's claim for indemnity against the non-applicant person (which seems to be a clerical error in the law of Libers Co., Ltd.) or the claim against the debtor (which is the joint guarantor of the non-applicant person's claim) who is the joint guarantor of the claim for indemnity amount was incurred on January 25, 1994 when the creditor performed the guaranteed obligation under the credit guarantee agreement of this case.

However, according to the facts duly established by the court below, the Industrial Bank of Korea notified the creditor of the credit guarantee accident on October 4, 1993, other than the Industrial Bank of Korea, on September 26, 1993 due to delinquency in payment of interest on the loan obligation of this case on September 26, 1993, and the creditor performed the guarantee obligation to the non-applicant bank on January 25, 1994. The non-applicant of this case completed the registration of transfer on September 1, 1993 to the debtor of this case as his wife on August 30, 1993, and even according to the records, there is no evidence to acknowledge the financial status of the above Liber Textiles fiber Textiles at the time of the above registration of transfer of ownership. Thus, it is difficult to view that the above circumstance alone was high probability that the creditor's exercise at the time of the debtor's transfer of ownership at the time of the transfer of ownership, or that the situation where the next creditor exercised the right to claim reimbursement.

Therefore, the judgment of the court below is erroneous as seen earlier, but the conclusion that the creditor did not acquire the right of revocation regarding the above gift contract is justified as a result, and the creditor's claim for reimbursement was established under the condition of revocation on March 16, 191, which is the time of the credit guarantee agreement in this case, cannot be accepted.

On the second ground for appeal

The judgment of the court below on the point that the theory of lawsuit points out (in the case of provisional attachment, etc. on the property of lurgical fiber, etc. outside the application at the time of a credit guarantee agreement, however, it is agreed to assume the obligation of prior indemnity, but the obligation of prior indemnity is extinguished in the case of cancellation of the above provisional attachment) is justifiable, and there is no error of law by misunderstanding the legal principles as to the extinguishment

All arguments are without merit.

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 on the bench.

Justices Ahn Yong-sik (Presiding Justice)