The case reversing the judgment of the court below which acknowledged a fraudulent act against the creditor where the debtor disposes of the real estate which is in progress of auction under the condition that it would be no less than auction.

The case reversing the judgment of the court below that recognized the act of disposal as a fraudulent act on the ground that it is difficult to view that the debtor had an intent to harm the creditor, on the grounds that, in the event that the debtor sells the auction immovables after the decision of permission of auction, and where the debtor sells the immovables to the creditor after the decision of permission of auction, the sale thereof shall be invalidated if the debtor fully pays the debts, but if the debtor fails to repay the debts within one month, the disposal of such immovables shall be made in lieu of claims equivalent to the successful bid price against the mortgagee, and the creditor agrees that the sale shall become null and void if the creditor fails to perform an agreement to solve the auction procedure and to present an alternative plan accordingly, the creditor fails to dispose of such immovables on the condition that at least the remaining auction at the risk of loss of the real estate due to the excessive payment date is in excess of the auction to the third party.

Article 406 of the Civil Act

Supreme Court Decision 94Da32597 delivered on June 9, 1995

Plaintiff 1 et al., Counsel for the defendant-appellant

Attorney Kim Jong-sung, Counsel for the defendant-appellee-appellee-appellant

Seoul High Court Decision 93Na15955 delivered on June 2, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

Among the grounds of appeal and the statement of the supplemental appellate brief submitted after the lapse of the period, the supplement to the grounds of appeal is also examined.

According to the reasoning of the judgment below, while the non-party 1 was in excess of the debt amounting to 4 billion won, including 532,430,000 won against the plaintiffs, the non-party 1 agreed to sell the real estate of this case and its ruling to the plaintiffs for 50 million won under the condition that the purchase price be set off against the plaintiffs around May 10, 1991, and the transfer registration was completed until November 15, 1991. The court below decided that the non-party 1 was to cooperate with the defendant in the sale of the real estate of this case to the non-party 10, the non-party 1, who was the collateral security right holder of this case, for the purpose of the above disposal of the real estate of this case with the non-party 1's disposal of the real estate of this case 90,000 won, and that the non-party 1, who was the non-party 1, who was the non-party 1, was not aware of the above disposal price of this case.

However, according to the sales contract and each letter (No. 7-1 and No. 8-2) signed by the court below on September 12, 1991, which was accepted by the court below, the above non-party 1 and the plaintiffs reduced the purchase price of the real estate of this case after the decision of approval of the successful bid, and if the above non-party 1 repays all the obligations to the plaintiffs, the sale would be null and void, but if the above non-party 1 did not repay all the obligations to the plaintiffs within one month, the sale shall not be made, and if the payment is not made within one month, the plaintiffs shall pay the claims equivalent to the successful bid price to the non-party 1, and if the plaintiffs fail to organize the above successful bid and the auction procedure, the above sale would become null and void. Meanwhile, according to each statement by the witness non-party 4 of the court of first instance and the witness non-party 1 of the court below, the plaintiffs did not know the claims to the non-party 1 under the above agreement, and the defendant did not dispose of the above real estate or request the above real estate security security.

In general, in the real estate auction procedure, if the debtor disposes of the real estate of this case by paying the successful bid price and acquiring ownership are the same in light of the general circumstances, it is difficult to deem that the debtor had an intention to impair the creditor in disposing of the real estate under the condition that the debtor would lose the real estate under the circumstances where the creditor did not perform an agreement to repay the claim for auction and to resolve the auction procedure, and where the creditor did not provide an alternative, it is difficult to deem that the payment date is imminent and the debtor would have an intention to impair the creditor in disposing of the real estate under the condition that the debtor would lose the real estate under the condition that the auction is

Nevertheless, the court below's determination that the above non-party 1 was aware of the intention of deception in disposing of the real estate of this case and that the defendant acted in good faith is also a fraudulent act. The court below's determination that the evidence that the above non-party 1 acted in good faith constitutes a fraudulent act is a result of misunderstanding the legal principles as to the intention of deception or misconception of facts in violation of the rules of evidence, and it is clear that such illegality had influenced the judgment. Therefore, it is reasonable to point this out.

Therefore, without examining the remaining grounds of appeal, 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.

Justices Ahn Yong-sik (Presiding Justice)