[1] Whether a fraudulent act is established in a case where a debtor sells the sole property and alters or transfers it to another person with or without compensation for consumption (affirmative), and whether the beneficiary's intent is presumed (affirmative), and the burden of proof as to the beneficiary's bad faith

[2] Whether a credit union's failure to give notice to the guarantor can be a ground for exemption from the liability for fidelity guarantee on the ground that the former director of the credit union knew of the concern about causing the fidelity guarantor's liability due to his or her negligence in the course of performing his or her duties and that the union knew of such fact (negative)

[1] The debtor's act of selling real estate, which is the only property of the debtor, and replacing it with money easily consumed or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring special circumstances. Therefore, the debtor's intention of prejudice is presumed, and the burden of proving that the purchaser or the transferor did not have bad faith is the beneficiary.

[2] Even if a private person is committed jointly with the representative of a juristic person, if the representative of a juristic person knew that it might cause the fidelity guarantor's liability due to the private negligence committed in the course of his duties, the juristic person shall not be deemed to have been aware of such fact. However, in light of the provisions of Articles 23 and 23-3 of the former Credit Union Act (amended by Act No. 5506 of Jan. 13, 1998), the former director of a credit union shall be deemed to be not the representative or the executive officer, but the executive officer of the union. Thus, even if the former director of the union knew that there was a private negligence in the course of his duties and caused the fidelity guarantor's liability, it cannot be deemed that the union knew that the former director of the union knew such fact, and therefore, the union may not be deemed to have known that it did not notify the fidelity guarantor of the fact.

[1] Article 406 (1) of the Civil Code, Article 261 of the Civil Procedure Act / [2] Articles 4 and 5 of the Guarantee of Personal Identity Act, Articles 23 and 23-3 of the former Credit Unions Act (wholly amended by Act No. 5506 of Jan. 13, 1998)

[1] Supreme Court Decision 95Da51908 decided May 23, 1997 (Gong1997Ha, 1858 decided April 14, 1998) 97Da5420 decided April 14, 1998 (Gong1998Sang, 1325), Supreme Court en banc Decision 76Da1853 decided June 7, 197 (25-2, 99Da28340 decided August 24, 199 (Gong199Ha, 1961)

Plaintiff Credit Union (Attorney Lee Jong-soo, Counsel for defendant-appellant)

Defendant 1 and one other (Law Office of Daejeon, Attorneys Oh Dong-dong, Counsel for the defendant-appellant)

Daejeon High Court Decision 99Na3950 delivered on July 5, 2000

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. The court below rejected the Plaintiff’s assertion that: (a) on July 10, 1993 and July 10, 1996, Nonparty 2, the managing director of the Plaintiff’s association, entered into a contract of fidelity guarantee with the Plaintiff for three years; (b) during the period from July 1994 to December 31, 197, Nonparty 1 embezzled large amount of loans; (c) during the period from July 1994 to December 31, 1997, Nonparty 2 embezzled large amount of loans; and (d) on December 17, 1997, Nonparty 2 did not know that Nonparty 2 did not know the Plaintiff’s non-party 1’s non-party 2, the sole property of the court below’s decision, which was the Plaintiff’s own property, and concluded the donation contract of this case with the Plaintiff’s consent to donate it to Nonparty 2, the debtor of this case, and did not know the Plaintiff’s non-party 1’s non-party 2’s non-party faith.

2. We first examine the decision on the will of the injury.

Unless there are special circumstances, the debtor's act of selling real estate, which is one of his own own property, and replacing it with or transferring it to another person without compensation, becomes a fraudulent act against the creditor. Therefore, the debtor's intent of deception is presumed to exist, and the burden of proof that the purchaser or the transferor did not maliciously act is presumed to exist in the beneficiary (see, e.g., Supreme Court Decisions 66Da1535, Oct. 4, 1966; 95Da51908, May 23, 197; 97Da54420, Apr. 14, 198; 97Da5420, Apr. 14, 1998). In this case, as acknowledged by the court below, the court below should have acknowledged the defendant's intention of fraudulent act as to the plaintiff, regardless of whether the non-party 2 was liable to guarantee the plaintiff, and it should have been presumed that the non-party 2 did not have any such intent.

Nevertheless, the court below's rejection of the plaintiff's assertion of fraudulent act on the ground that there is no evidence that the non-party 2 had known that he was liable for the fidelity guarantee to the plaintiff at the time of entering into the donation contract of this case. The court below erred by misapprehending the facts against the rules of evidence or misapprehending the legal principles as to the presumption of intention to understand, and failing to exhaust all necessary deliberations. Therefore, the

3. Next, we examine whether to judge the duty to give notice.

Although a private trust in the course of performing its duties is made jointly with the representative of a juristic person, if the representative of the juristic person knew that it might cause the fidelity guarantor's liability due to the private negligence in which the representative of the juristic person works in good faith, the juristic person shall not immediately be deemed to have been aware of such fact (see Supreme Court Decision 76Da1853, Jun. 7, 197). However, under the former Credit Union Act (amended by Act No. 4556, Jun. 11, 1993; Act No. 5506, Jan. 13, 1998; Act No. 5506, Jan. 13, 1998; Act No. 23 (1)); Act No. 2000, Feb. 1, 1998; Act No. 20060, Feb. 3, 200; Act No. 2010, Feb. 3, 2006>

The judgment of the court below 76Da1853 cited by the court below is related to the case where Article 110 (1) of the former Agricultural Cooperatives Act (amended by Act No. 670 of Jul. 29, 1961, by Act No. 2577 of Mar. 5, 1973) provides that "the former Agricultural Cooperatives Act (amended by Act No. 2577 of Mar. 5, 197) provides that "the former president shall assist the president of the association, handle the affairs of the association, and represent the association with respect to the affairs prescribed by the articles of association." The former Act provides that "the former president of the association shall represent the daily affairs of the association in accordance with the articles of association and the rules on the duties of the executive officers of the association, determine them as the highest person with respect to loans and collection of funds, and supervise the union employees." This case shall not be applied to this case since Article 23-3 (3) of the former Credit Cooperatives Act provides that "the former president or the executive director shall handle handle the financial and accounting affairs of the association, keep evidentiary documents, receipts and disbursements of money, and accounting."

Therefore, the court below's determination that the plaintiff union was aware that the non-party 1, who is the employee of the plaintiff union, knew of the possibility that the non-party 1, who is the employee of the plaintiff union, would cause the fidelity guarantor's liability in his/her unfaithful private case of his/her duties, and that the plaintiff union was aware of such fact, which is a ground for exemption from liability for fidelity Guarantee Act, cannot be erroneous

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)