[2] Where the registration of establishment of a mortgage was cancelled after a fraudulent act was committed with respect to a real estate on which a mortgage was established, whether the purport of seeking partial cancellation of the contract and compensation for value is also included in the purport of seeking the return of the real estate itself, and whether the compensation for value can be immediately ordered without modification of the purport of the claim (affirmative)

[2] In the event that a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Thus, in the event that a registration of establishment of a mortgage is cancelled by repayment, etc. after a fraudulent act, the fraudulent act can only be cancelled within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and it cannot be viewed that the method would vary depending on who the person performing the debt would not be the case, barring any special circumstances. The purport of seeking partial revocation of the contract and the return of the real estate itself is also included in the purport of seeking compensation, and thus, the return of the value may be immediately ordered even if there is no modification

1. As to the remaining grounds of appeal except subparagraph 3 of the grounds of appeal

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment after compiling the adopted evidence. The plaintiff did not have the right to seek revocation of fraudulent act against the defendants, and thus rejected the lawsuit of this case as unlawful for the reasons as stated in the judgment below. On the plaintiff's assertion of fraudulent act, based on the facts acknowledged by the court below, the court below determined that the non-party 1 entered into a contract with the defendant 1, the wife on October 14, 1993 concerning the real estate listed in the attached list No. 1, 2 of each real estate recorded in the judgment of the court below, which was the last property of which the non-party 1 had the intention to harm the creditor, and completed the registration of transfer of ownership based on the above donation on March 31, 1994, after entering into a contract with the defendant 2 to purchase and sell the real estate listed in the same list No. 3, 4, and on April 11, 1994, the transfer of ownership was presumed to fall under the above non-party 1's claim.

Furthermore, the lower court rejected the Plaintiff’s claim on the grounds that there is no evidence to support the Defendants’ assertion that the instant claim made by Nonparty 3, one of his employees, should not be permitted against the good faith principle, on the following grounds: (a) the real estate indicated in the list 1 and 2, purchased or newly constructed by Defendant 1’s funds, was the unique property of the above Defendant, and only the registered name was entrusted to Nonparty 1, but the ownership was recovered by the gift method; and (b) Nonparty 3, who acquired, knowing that the promissory note issued by Nonparty 1, who was prohibited from endorsement, was a

In light of the records, the fact-finding and judgment of the court below are just and there is no such error as violation of the rules of evidence, violation of the rules of evidence, binding force of the judgment remanded, misunderstanding of the legal principles on the creditor's right of revocation

The grounds of appeal on this point are without merit.

2. Regarding ground of appeal No. 3

A. According to the records, the right to collateral security was established on November 26, 1992 with respect to each real estate listed in the same list 3 and 4, and the right to collateral security was established at KRW 200,000,000 with respect to each real estate listed in the same list 3 and 4, and the right to collateral security was revoked on April 2, 1998 following the provisional registration made in the future of Defendant 2 on April 11, 1994.

In a case where a provisional registration for preserving the right to claim for transfer registration of ownership is made as a fraudulent act, it is sufficient to cancel the sale reservation and cancel the provisional registration as a reinstatement, and the court below's conclusion that the provisional registration was cancelled after the provisional registration, or the obligation to be secured was partially repaid after the provisional registration, or that the provisional registration is de facto a provisional registration is a security registration, is not affected by the method of reinstatement, is justifiable. Therefore, the court below's conclusion to revoke the sale reservation and order the cancellation of the provisional registration under the name of Defendant 2.

Therefore, Defendant 2’s ground of appeal on this point is without merit.

B. In a case where a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act is established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of a mortgage is cancelled by repayment, etc. after a fraudulent act, the fraudulent act can only be cancelled within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate (see Supreme Court Decision 98Da41490, Sept. 7, 199). Barring special circumstances, it cannot be viewed that the method differs depending on who the payer is the person who performed the debt. The purport of the purport of the claim that the Plaintiff seeks partial revocation and return of the real estate itself is also included in the purport of seeking partial revocation and compensation, and thus, the purport of the claim can be immediately ordered to return the value even without any alteration in the purport

According to the records, the right to collateral security was established on September 18, 1993 with respect to each immovable set forth in the same list 1 and 2, and the right to collateral security was established on September 18, 1993 with a maximum debt amount of KRW 130,00,000,000. On October 15, 1993, the right to collateral security was cancelled on March 27, 1995. Thus, if the above donation constitutes a fraudulent act, the fraudulent act shall be revoked within the extent of the balance remaining after deducting the secured debt amount from the value of the above real estate.

However, the court below revoked the entire donation contract between Nonparty 1 and Defendant 1 with respect to each real estate listed in the same list 1 and 2, and ordered the implementation of the procedure for the registration of cancellation of ownership transfer registration made in the above defendant's future. Thus, there is an error of law by misunderstanding the legal principles on cancellation of fraudulent act, which affected the conclusion of judgment.

Defendant 1’s ground of appeal pointing this out is with merit.

3. Therefore, the part of the judgment of the court below regarding Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the appeal by Defendant 2 is dismissed, and the costs of appeal by the court below are assessed against the defendant as the losing party. It is so decided as per Disposition by the assent of all participating

Justices Lee Han-gu (Presiding Justice)