In order to revoke mortgage contract as a fraudulent act, in the event that another person acquires ownership as a result of the auction procedure and the registration of creation of mortgage is cancelled, the detailed method of restitution depending on whether the beneficiary's dividend was received, and in case where the creditor files a lawsuit of revocation of fraudulent act and the lawsuit of demurrer against distribution, the scope of

In the event that a mortgage contract is cancelled as a fraudulent act, if another person acquires ownership and the registration of creation of a mortgage was cancelled, it is impossible to return the original property. Therefore, if a beneficiary receives dividends due to the termination of the distribution, the beneficiary shall be ordered to return the dividends. In the event that the beneficiary is not actually paid dividends due to the provisional disposition prohibiting the payment of dividends even though the distribution schedule became final and conclusive, the beneficiary shall be ordered to notify the transfer of the dividend payment claim and the transfer of the claim. However, if the creditor was present on the date of distribution on the date of distribution and raised an objection against the part of the beneficiary's distribution, the creditor may file a lawsuit of demurrer against the distribution as a restoration in combination with the lawsuit of revocation of fraudulent act. In this case, the court may cancel the mortgage contract only to the extent that the creditor's claim is not satisfied without considering the existence of other creditors than the relevant creditor who filed a lawsuit of demurrer against the distribution, and only to the extent so corrected the amount of dividends as the amount of

Article 406(1) of the Civil Act; Article 154 of the Civil Execution Act

Supreme Court Decision 97Da8687 delivered on October 10, 1997 (Gong1997Ha, 3420) Supreme Court Decision 2000Da41844 Delivered on February 9, 2001 (Gong2001Sang, 613) Supreme Court Decision 2000Da44348 Delivered on February 27, 2001 (Gong49-1, 187, 2001Sang, 774)

Tae forest industry, Inc.

Defendant

Cheongju District Court Decision 2001Na735 delivered on December 26, 2002

The part of the judgment of the court below against the plaintiff shall be reversed, and that part of the case shall be remanded to the Cheongju District Court Panel Division.

1. On May 7, 1998, when Nonparty 1 was in a state of excess due to the Plaintiff’s obligations to many creditors including the Plaintiff, the lower court determined that the said mortgage agreement should be revoked by fraudulent act, on May 7, 1998, on the forest land owned by the Defendant, that the establishment of a mortgage was completed on the basis of the maximum debt amount of KRW 17 million, and that the said establishment of a mortgage was revoked by auction as a result of the voluntary auction procedure conducted on the said forest land upon the Defendant’s application. The auction court distributed dividends of KRW 17 million to the Defendant in the second priority among the sale price of the said forest land and set up a distribution schedule to distribute KRW 957,032 to the Plaintiff on the date of distribution, but the Plaintiff raised an objection to the part of the Defendant’s dividends.

However, the lower court rejected the claim of demurrer against distribution on the ground that it cannot be allowed as a means of restitution of fraudulent act, with regard to the claim of demurrer against distribution seeking correction of the part concerning the Defendant among the above distribution schedule as restitution due to revocation of fraudulent act, on the ground that the mortgage contract cannot be deemed null and void

2. However, we cannot accept the lower court’s decision that rejected the claim of demurrer against distribution.

Since a lawsuit for formation becomes effective only when the judgment becomes final and conclusive, it can not be filed concurrently with a lawsuit for formation and a performance lawsuit based on the legal relationship formed thereby (see Supreme Court Decision 68Da2425, Dec. 29, 1969, etc.). However, Article 406(1) of the Civil Act provides that the creditor may file a claim for revocation of fraudulent act and restitution to the court, thereby allowing the creditor to file a joint lawsuit for revocation of fraudulent act.

On the other hand, when revoking a mortgage contract as a fraudulent act, if the other party acquired ownership and the registration of creation of mortgage was cancelled, it is impossible to return the original property if the other party acquired ownership and the registration of creation of mortgage was cancelled, and thus, it is ordered to restore the dividend by compensation for value. If the beneficiary received the dividend due to the termination of the distribution, the beneficiary shall be ordered to return the dividend (see Supreme Court Decision 2000Da44348, Feb. 27, 2001). If the distribution schedule became final and conclusive but the beneficiary fails to receive the dividend in reality due to the creditor's provisional disposition prohibiting the payment of dividend, the creditor shall be ordered to notify the transfer of the dividend payment claim and the transfer of the claim (see Supreme Court Decision 97Da8687, Oct. 10, 1997). If the creditor was present on the date of distribution and raised an objection against the part of the beneficiary's dividend, the creditor may file a lawsuit of demurrer against the distribution as a reinstatement as

However, in this case, the court should cancel the contract to establish the right to collateral security without considering the existence of other creditors than the concerned creditors who have filed a lawsuit of demurrer against the distribution to the extent that the creditor's claim has not been satisfied, and only to the extent so, correct the amount as the amount of dividends of the creditor concerned by eliminating the amount of dividends of the beneficiary (see Supreme Court Decision 2000Da41844 delivered on February 9, 201).

Therefore, the court below should have deleted the amount of distribution and corrected it as the plaintiff's amount of distribution to the extent that the plaintiff's claim was not satisfied among the amount distributed to the defendant based on the above distribution schedule as the restoration of the original state, so long as the contract to establish a right to collateral security between the non-party 1 and the defendant as to the forest in its judgment was revoked, the court below erred in the misapprehension of legal principles as to the revocation of fraudulent act and the consolidation of the claims for objection to distribution, which affected the conclusion of the judgment.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)