Whether a debtor may constitute a fraudulent act subject to an obligee's right of revocation after the extinctive prescription has expired (affirmative)

Since the debtor's act of waiver of the benefit of extinctive prescription after the expiration of the extinctive prescription is deemed not to have expired, and consequently, the debtor bears the obligation that has not been borne by the debtor, so it can be a fraudulent act subject to the creditor's right of revocation.

Articles 162, 184, and 406 of the Civil Act

K&C Co., Ltd. (Attorneys Song Jin-jin et al., Counsel for the defendant-appellant)

The debtor

Guate District Court Order 201Ra569 dated May 1, 2012

The order of the court below shall be reversed, and the case shall be remanded to the Panel Division of Suwon District Court.

The grounds of reappeal are examined.

Since the debtor's act of waiver of the benefit of extinctive prescription after the expiration of the extinctive prescription is deemed not to have expired, and consequently, the debtor bears the obligation that has not been borne by the debtor, so it can be a fraudulent act subject to the creditor's right of revocation.

According to the facts established by the court below, the Korea Mutual Savings and Finance Company loaned 700,000,000 won to non-applicant 1 on January 25, 1994 at the interest rate of 16.5% per annum on January 25, 1995 (hereinafter “instant loan”). The non-applicant 2, 3, 4, and 5 on January 25, 1995 jointly and severally guaranteed the liabilities for loans to the Mutual Savings and Finance Company of non-applicant 1. The claims arising from the instant loan of the Korea Mutual Savings and Finance Company of the Korea Mutual Savings and Finance Company of the Korea were assigned in sequence to the Korea Mutual Savings and Finance Company and the creditors were assigned on October 31, 203 by the same registry office as the above provisional registration No. 5 on June 198, 198 (hereinafter “the instant land transfer registration No. 1985, May 26, 198). The non-applicant 2 acquired the ownership transfer registration by the Korea Mutual Savings and Finance Company of the Korea Ltd.

In light of the above legal principles and related legal principles, the period of extinctive prescription has expired since the obligor exercised the right to complete the purchase and sale reservation on September 25, 1998, by failing to exercise the right to claim the principal registration based on the provisional registration on the instant land against 2 from the time when the obligor exercised the right to complete the purchase and sale reservation on September 25, 1998, and due to the failure to exercise the right to claim for the principal registration on the instant land for ten years. On August 18, 2011, the non-applicant 2, who received the right to claim for the principal registration based on the provisional registration of this case, exercised the right to claim for the statute of limitations on the instant land by completing the principal registration based on the provisional registration of this case in the debtor’s name on August 18, 201, and the waiver of the extinctive prescription benefit by non-applicant 2 and the debtor’

Nevertheless, the court below rejected the application for provisional disposition of this case on the ground that it is presumed that the act of completion of the principal registration of this case constitutes a series of acts in accordance with the effects arising from a juristic act which is the cause of provisional registration, and that the waiver of the prescription interest of the non-applicant 2 is merely evaluated differently from the act of application for the principal registration of non-applicant 2, which is the cause of the provisional registration, and ultimately, it cannot be determined that the juristic act which is the cause of the provisional registration of this case should be removed from the juristic act which is the cause of the provisional registration of this case, and it is apparent that the limitation period of five years under Article 406(2) of the Civil Act has elapsed since it is a true fact that the juristic act which is the cause of the provisional registration of this case was the promise to sell and purchase as of May 20, 1998, and it cannot be revoked, and therefore, the obligee's expression of intent to waive the claim

The lower court erred by misapprehending the legal doctrine on the act of waiver of extinctive prescription benefit subject to obligee’s right of revocation, etc., which affected the conclusion of the judgment. The ground of reappeal assigning this error is with merit.

Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)