Plaintiff (Attorney Kim Jin-jin, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Gap, Attorneys Kim Gi-ri et al., Counsel for the defendant-appellant)

July 11, 2018

Busan District Court Decision 2016Kadan11497 Decided November 28, 2017

1. Of each lawsuit against the Defendants, the part of the claim for revocation of the sales contract as of July 2, 2015, which was changed in exchange by this court, shall be dismissed in entirety.

2. The Plaintiff’s appeal against the Defendants is dismissed in entirety.

3. The costs of lawsuit after filing an appeal shall be borne by the Plaintiff.

1. Purport of claim

The sales contract concluded on July 2, 2015 with respect to the land of this case (hereinafter “instant land”) 843 square meters prior to permanent residence (hereinafter “instant land”) was revoked. Defendant 1 performed the registration procedure for cancellation of ownership transfer registration concluded on October 20, 2015 with respect to the land of this case to Nonparty 3, the Daegu District Court’s permanent resident registration office, and the registration procedure for cancellation of ownership transfer registration completed on October 20, 2015 to Defendant 1 (hereinafter “Defendant trust company”) was revoked on the land of this case to Defendant 1 by the above permanent resident registration office of this case (hereinafter “the above permanent resident registration office of this case”) and the above permanent resident registration office of 23863 square meters. The purport of the sales contract should be revoked on November 30, 2015 with the trust company of this case to Defendant 1 and the trust company of this case seeking cancellation of ownership transfer registration concluded on October 16, 2015.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the Plaintiff is revoked. Defendant 1 performed the procedure for registration of cancellation of ownership transfer registration, which was completed as of October 20, 2015 by the permanent resident registry office of the above permanent resident registration office of the land of this case, to Nonparty 3, and Defendant trust company fulfilled the procedure for registration of cancellation of ownership transfer registration, which was completed as of November 30, 2015 by the above permanent resident registry office of the above permanent resident registration office of the land of this case (the part of the judgment of the court of first instance on winning part of the Plaintiff for the development of two industry, which was co-defendants of the first instance court, became final and conclusive as of the development of two industry of the first instance judgment of the above permanent resident registration office of the above permanent

1. Basic facts

A. On September 23, 201, the Plaintiff lent KRW 100,000,000,000 to January 20, 2012, and KRW 250,000,000 to December 14, 2012, respectively. On August 30, 2014, the Plaintiff prepared and issued a cash custody certificate to the Plaintiff that “60,000 won will be repaid by October 30, 201.”

B. On March 25, 2014, Nonparty 2 completed the registration of ownership transfer based on the “transaction on March 24, 2014,” with respect to the instant land, and on June 2, 2014, Nonparty 1 completed the registration of ownership transfer claim on the ground of “sale reservation on June 2, 2014.”

C. On June 12, 2014, Nonparty 1 completed the additional registration prior to the above provisional registration with respect to the instant land for industrial development on the same day, and Nonparty 2 completed the principal registration of transfer of ownership based on the above provisional registration on the ground of “trade on July 8, 2014” with respect to the instant land for industrial development on July 9, 2014.

D. On July 8, 2015, two industry development completed the registration of ownership transfer for the instant land to Nonparty 3 on the ground of the instant sales contract, and Nonparty 3 completed the registration of ownership transfer for Defendant 1 on October 20, 2015 on the instant land on the ground of “sale on October 16, 2015,” and Defendant 1 completed the registration of ownership transfer for the instant land to Defendant trust company on November 30, 2015.

E. On May 20, 2016, the Plaintiff was subject to a decision of provisional injunction against disposal (Seoul District Court Decision 2016Kadan10060, Daegu District Court Branch Decision 2016Kadan1060) against the right to claim the cancellation of registration of ownership transfer on the ground of the revocation of fraudulent act as to the instant land, and on the same day, the provisional injunction entry registration was completed as to the instant land.

F. On July 20, 2016, the Plaintiff filed the instant lawsuit against Nonparty 3 and the Defendants. The purport of Nonparty 3’s claim stated in the instant complaint against Nonparty 3 was to cancel the instant sales contract concluded on July 2, 2015 with respect to the instant land between Nonparty 3 and the development of the two industries. Nonparty 3 was to cancel the instant sales contract. Nonparty 3 was to “The procedure for the cancellation of ownership transfer registration completed on July 8, 2015 by the Daegu District Court’s Permanent Residential Branch Office for Supporting the instant land, which was completed on July 8, 2015 by the Daegu District Court’s Permanent Residential Branch Office for Supporting the instant land.”

G. On November 9, 2016, the presiding judge of the first instance court ordered the Plaintiff to rectify Nonparty 3’s address, but ordered the Plaintiff to dismiss the Plaintiff’s complaint against Nonparty 3, who did not correct Nonparty 3’s address. Around that time, the order to dismiss the complaint became final and conclusive.

[Ground of recognition] Facts without dispute, Gap 1 and 2 evidence, purport of the whole pleadings

2. Determination on the defense prior to the merits

The Plaintiff asserted that the instant sales contract was a fraudulent act and sought revocation of the instant sales contract against the Defendants. The Defendants asserted that the Plaintiff’s claim for revocation of this part is unlawful after the lapse of the exclusion period of one year.

The action for cancellation of a fraudulent act shall be brought within one year from the date on which the creditor becomes aware of the cause of cancellation (Article 406 (2) of the Civil Code).

As to the instant case, on May 20, 2016, the Plaintiff received a provisional disposition against the prohibition of disposal against the claim for cancellation of ownership transfer registration on the ground of cancellation of fraudulent act on the instant land. On the same day, the registration of the above provisional disposition was completed on the instant land, and the Plaintiff filed the instant lawsuit against Nonparty 3 on July 20, 2016, and the purport of the claim against Nonparty 3 as indicated in the instant complaint against the Plaintiff was as follows: “The instant sales contract is revoked. Nonparty 3 fulfilled the procedure for cancellation of ownership transfer registration completed on July 8, 2015 by the Daegu District Court’s permanent registry office for branch of the Daegu District Court, Dong Branch of the District Court, Dong Branch of the District Court, for the instant land development.”

According to the above facts, it is reasonable to view that the Plaintiff, at least on July 20, 2016, was aware of the grounds for cancellation of the instant sales contract, and only on April 19, 2018, the Plaintiff filed an application for modification of the purport of the instant sales contract with the Defendants to the instant court. As such, it is apparent in the record that the Plaintiff filed an application for modification of the purport of the appeal against the Defendants for cancellation of the instant sales contract. Accordingly, the part requesting cancellation of the instant sales contract among the lawsuit against the Defendants was filed after the lapse of the exclusion period of one year.

Therefore, the defendants' defense is justified.

3. Judgment on the merits

A. The plaintiff's assertion

1) On July 2, 2015, two family industry development, which had been in excess of the debt due to the debt owed to the Plaintiff, etc., predicted the creditor's compulsory execution, and in collusion with Nonparty 3, concluded the instant sales contract without receiving the purchase price as to the instant land, which was the only property, and completed the registration of ownership transfer due to the instant purchase and sale to Nonparty 3 on July 8, 2015. Thereafter, Nonparty 3 completed the registration of ownership transfer due to the instant land to Defendant 1 on October 20, 2015 upon the request of the two-party industry development, which is the actual owner of the instant land. Upon the request of the two-party industry development, Defendant 1 completed the registration of ownership transfer due to the instant land’s trust with Defendant trust company on November 30, 2015.

2) Therefore, the instant sales contract concluded on July 2, 2015 with respect to the instant land between Nonparty 3 and Defendant 2 should be revoked as it constitutes a fraudulent act. Accordingly, the Defendant trust company is obligated to restore the original state to its original state, and Defendant 1 is obligated to implement the registration procedure for cancellation of each transfer of ownership as to the instant land to Nonparty 3, respectively.

3) In addition, Nonparty 3 and Defendant 1 concluded a sales contract on July 2, 2015 and October 16, 2015 with respect to the instant land for the purpose of evading the creditors’ compulsory execution of the two industry development, respectively, and completed the registration of ownership transfer at that time. The Defendant trust company concluded a trust contract on the instant land on November 20, 2015 for the same purpose and completed the registration of ownership transfer on November 30, 2015, based on the above trust. Each of the above sales contracts and the trust contract on the instant land constitute false agreement or anti-social legal act, and each of the above registrations of ownership transfer filed by Nonparty 3 and the Defendants on the instant land are invalid. Accordingly, the Plaintiff seek cancellation of each of the above registration of ownership transfer with respect to each of the instant land that was completed against the Defendants by subrogation of two industrial development as the creditors of two heading industries.

B. Determination on the assertion of restitution following the revocation of fraudulent act

1) In cases where a creditor claims revocation of a fraudulent act and reinstatement pursuant to Article 406(1) of the Civil Act, only the revocation of a fraudulent act may be first claimed and then a later claim for restitution may be made. However, insofar as the revocation of a fraudulent act, which is the premise of restitution, is not recognized, the right to claim restitution cannot be claimed without seeking revocation of the fraudulent act (see Supreme Court Decision 2007Da69162, Dec. 11, 2008). Moreover, the revocation of a fraudulent act can only be claimed by means of filing a lawsuit with the court and cannot be asserted by means of attack and defense in the lawsuit (see Supreme Court Decision 95Da4859, 48605, Mar. 13, 1998).

2) As seen earlier, the part of the Plaintiff’s claim for the cancellation of the instant sales contract among the lawsuits against the Defendants was filed after the limitation period has expired, and is unlawful. As such, insofar as the instant sales contract was not revoked as a fraudulent act, the Plaintiff’s claim for restitution against the Defendants is not recognized.

Therefore, this part of the Plaintiff’s assertion that the instant sales contract was revoked as a fraudulent act is to be restored to its original state, thereby seeking the cancellation of each transfer registration of ownership to the Defendants as to the instant land is without merit.

C. Determination as to the assertion of invalidation as a conspiracy, false representation or anti-social legal act

The evidence evidence evidence Nos. 1, 2, and 3 alone is insufficient to recognize that the instant sales contract concluded on July 2, 2015 between the development of two industries and Nonparty 3, the sales contract concluded on October 16, 2015 between Nonparty 3 and Defendant 1, and the trust contract concluded on October 30, 2015 between the Defendants was invalid as either a false agreement or an anti-social legal act, respectively, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, among each lawsuit against the Defendants, the part of the claim for cancellation of the sales contract of this case against the Defendants is unlawful and all of the claims for cancellation against the Defendants are dismissed. Therefore, among each lawsuit against the Defendants, the part of the claim for cancellation of the sales contract of this case that was altered in exchange in this court shall be dismissed in all (the part of the claim for cancellation of the sales contract of this case against Defendant 1, the former part of the claim for cancellation of the sales contract of this case, and the part of the claim for cancellation of the trust contract of this case as of November 30, 2015 against the Defendant trust company, were withdrawn by the exchange change of the lawsuit made in this court, and the judgment of the first instance as to the claim for cancellation of the sales contract of this case becomes null and void). The judgment of the first instance as to each of the claims for cancellation

Judges Mao (Presiding Judge) (Presiding Judge) and Hun-Ga