Methods of exercising the right to claim revocation of fraudulent act

Where an obligor has done a juristic act aimed at a property right with the knowledge that such act would prejudice the obligee, the obligee may not file a lawsuit for revocation of the fraudulent act with a court, but may not claim it as an attack and defense method in a lawsuit.

Article 406 of the Civil Act

Supreme Court Decision 78Da404 delivered on June 13, 1978 (Gong1978, 10948) 92Da11008 delivered on January 26, 1993 (Gong1993Sang, 852) 95Da8409 delivered on July 25, 1995 (dong) 95Da8416 delivered on July 25, 1995 (dong)

Korea Exchange Bank (Attorney Han Jin-ho et al., Counsel for defendant-appellee)

Defendant-Appellant Park Jin-jin, Counsel for defendant-appellant

Busan High Court Decision 94Na4134 delivered on December 29, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal (to the extent of supplement in case of the supplemental application) are examined as follows.

As to the grounds of appeal Nos.1 and 2

In light of the records and the circumstances leading up to the conclusion of a contract for payment in kind with the above non-party 1, the court below's decision accepting the defendant's bona fide acquisition defense is justified in its conclusion, and even if the defendant did not make a decision as to whether he was negligent in believing the above non-party 1 as a legitimate owner, such mistake does not affect the conclusion of the judgment, even if it did not affect the conclusion of the judgment. All arguments are without merit.

As to the third ground for appeal

Where a debtor performs a legal act with the knowledge that he would prejudice the creditor, the creditor can file a lawsuit for revocation of the fraudulent act with the court, and cannot claim it as a means of attack and defense in the lawsuit (see, e.g., Supreme Court Decisions 78Da404, Jun. 13, 1978; 92Da11008, Nov. 26, 1993). It can be known that the plaintiff, on the 23th day of the same month as stated in the 6th day of the court below (1994 Nov. 24, 1994), stated that the payment contract entered into by the defendant constitutes a fraudulent act, and thus, it constitutes a fraudulent act, and therefore, the plaintiff's assertion that the revocation of the fraudulent act by the plaintiff is not only a mere means of attack and defense in the lawsuit, and therefore, it cannot be viewed that the plaintiff's assertion that the plaintiff's assertion of revocation of the fraudulent act was legitimate and has no merit in the conclusion of the judgment below, and there was no error in the plaintiff's conclusion.

As to the fourth ground for appeal

According to the records, since the defendant acquired and managed a direct possession of the steel part located in the new-name 125-7 located in the north-dong 125-7 of the Busan Metropolitan City, Nowon-gu, Busan Metropolitan City, upon concluding the above contract for payment in substitutes, the plaintiff also filed an application for provisional disposition under the premise that the above steel part is occupied by the defendant, and then filed the lawsuit of this case. Thus, the judgment of the court below that the defendant acquired the above steel part in good faith by delivery is justified, and there is no reason to dispute.

Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)