2. As to each real estate listed in the separate sheet, the contract to establish a mortgage concluded on June 22, 2007 between Pungyang-ro Co., Ltd and the defendant Industrial Bank of Korea shall be revoked.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Samsan Commercial Co., Ltd. is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Industrial Bank

A. The Plaintiff’s claim for indemnity against Pungyang Co., Ltd.

(1) On February 9, 2006, the Plaintiff entered into a credit guarantee agreement (hereinafter “first guarantee agreement”) and issued a credit guarantee agreement to P P P P P P P P P P P P P P P P P P P P P P P P P P P P P PP with P P P P P P P P P P P P P P P PPP (hereinafter “P P P P P P P P P P P P P P P P P P P P PPP”) by setting the guarantee limit of 654,50,000, and the guarantee period of 21 October 2006. On the following day, P P P P P P P P P P P P P PP

(2) On March 31, 2006, the Plaintiff entered into a credit guarantee agreement (hereinafter “second guarantee agreement”) and issued a credit guarantee agreement to P P P P P P P P P P P P P P P P P PP by setting the guarantee limit of 224,00,000, and the guarantee period of 30 March 30, 2007. On the same day, P P P P P P P P P P P P PPP borrowed KRW 280,00,000 from the Defendant Industrial Bank as security.

(3) On April 28, 2006, Pungyang Pung-ro lost the interest due to delay in paying the principal to each of the above banks. Accordingly, on September 21, 2006, the Plaintiff paid the principal and interest of KRW 228,605,194 to the Defendant Industrial Bank of Korea based on the second guarantee, and on September 28, 2006, paid the principal and interest of KRW 676,503,973 by subrogation to the new bank on September 28, 2006.

(4) The Plaintiff filed a lawsuit against Pungyang-ro on the claim for reimbursement at this court 2006Gahap89140, and this court rendered on April 18, 2007 the judgment ordering the Plaintiff to pay KRW 906,321,787 to Pungyang-ro and its delay damages. The above judgment on June 16, 2007 became final and conclusive.

(b) An act of disposing of property on a Pungyang Paint;

(1) On October 14, 2005, Pungyang-ro purchased the real estate listed in the attached Table 1 (hereinafter “instant land”) as a site for the expansion of gas station facilities on the ground, such as Yangyang-gun, Yangyang-gun, Gyeonggi-do Yang-gun, which was established and operated a gas station on the ground, such as Yangyang-gun, Yangyang-gun, Seoul. On December 14, 2005, Pungyang-ro purchased the real estate listed in the attached Table 1 (hereinafter “instant land”). On December 14, 2005, Pungyang-ro purchased the instant land as collateral from the Defendant Industrial Bank of Korea, borrowed the instant land from the Defendant Industrial Bank of Korea as collateral and completed the registration of the transfer of ownership on the instant land on the same day, and at the same time, completed the registration of the creation of superficies with the maximum debt amount of 78,000,000, and the duration of the establishment of superficies over the instant land 30 years. At that time, Pungyang-do

(2) Thereafter, Pungyang-ro obtained a loan from the Plaintiff’s credit guarantee or the instant land as collateral in order to raise funds for the management of gas stations, as seen earlier, from the financial rights including the Defendant Industrial Bank of Korea. On March 31, 2006, regarding the instant land, the establishment of a collateral security right of KRW 360 million with respect to the Defendant Industrial Bank of Korea’s maximum debt amount is one of the most important.

(3) From November 2005, Pungyang Pung-ro began to engage in the transaction of supplying oil from Defendant Samsan Co., Ltd. (hereinafter “Defendant Samsan”). On February 9, 2006, in order to secure the payment of oil price, in relation to the instant land, the right to collateral security (hereinafter “the first right to collateral security”) was established regarding the instant land, which was KRW 900 million with the maximum debt amount, and continued to engage in oil transaction with Defendant Samsan-si until April 2006.

(4) Around April 2006, as the management status of Pungyang becomes worse rapidly, multiple provisional seizures were entered with respect to the instant land, including the provisional attachment No. 2006Kadan1413, upon Nonparty 1’s application by Nonparty 1, regarding the instant land, and Pungyang set a number of cases of collateral security on the instant land to Co-Defendant 2, etc. prior to withdrawal of the lawsuit. Defendant Samsan requested a voluntary auction on the instant land on May 12, 2006 and the decision to commence auction was rendered on May 12, 2006, and Defendant Industrial Bank requested a voluntary auction on the instant land on August 7, 2006.

(5) On June 5, 2007, Pungyang-ro obtained approval for the use of the newly constructed gas station building on the instant land (attached Form 2 real estate; hereinafter “instant building”). On July 22, 2007, the Defendant Industrial Bank of Korea granted a registration of preservation of ownership on the instant building under the approval of the Defendant Small and Medium Enterprise holding the superficies of the instant land. In this regard, the Defendant Industrial Bank of Korea extended or refunded the maturity of the existing loan, and revoked the application for auction, and at the same time, revoked the application for auction of the instant land and buildings with a maximum claim amount of KRW 30 million (hereinafter “second priority mortgage”). At the same time, Defendant Sam-si also revoked the application for auction of the instant land and buildings with a maximum claim amount of KRW 300 million (hereinafter “third priority mortgage”). In fact, on July 2, 2007, the Industrial Bank of Korea withdrawn the application for auction against the instant land.

(c) The status of the property of a P P P P P P P P P PP boat;

As seen below, as of June 22, 2007, the active property of Pungyang-ro is the entire land and the building and its main oil facilities (hereinafter “instant real property”) equivalent to the total value of KRW 1,274,58,500 in total, and the small property was in excess of its liability due to its total liability of KRW 4,41,750,324.

(i)affirmative property;

Table classification appraisal in the main text (based on October 25, 07) KRW 984,00,000 for the land of this case, KRW 833,794,600 for the sale price of this case, KRW 168,248,50 for the building of this case, KRW 168,248,990 for the gas supply facilities of KRW 92,00,000 for the oil supply facilities of this case, KRW 77,956,406 for the aggregate of KRW 1,274,58,500 for the land of this case, KRW 1,00 for the total of KRW 1,274,58,500 for the

* It is the result and actual proceeds of appraisal conducted in the auction case of 2007taeng 32682 and 44753 of the Government District Court.

(2) Petty property

본문내 포함된 표 순번 채권자 채무액 비 고 1 중소기업은행 812,140,072원 근저당권자, 이자 포함시 1,017,111,635원 2 삼미상사 805,274,446원 근저당권자, 이자 포함시 1,265,329,506원 3 소외 3 240,528,000원 근저당권자 4 소외 2 438,980,000원 상 동 5 소외 4 상사 580,523,413원 상 동 6 소외 1 33,264,000원 가압류채권자 7 소외 5 279,088,000원 상 동 8 소외 6 주식회사 30,000,000원 상 동 9 소외 7 44,220,000원 상 동 10 소외 8 36,268,709원 상 동 11 소외 9 19,268,709원 상 동 12 소외 10 59,400,000원 상 동 13 소외 11 104,270,000원 상 동 14 원고 906,321,787원 상동(가압류 청구채권액 : 878,500,000원) 15 소외 12 41,400,000원 가압류채권자 16 소외 13 주식회사 10,803,188원 상 동 ？ 합 계 4,441,750,324원 ？

* The amount of secured debt and the amount of debt of provisional seizure of the right to collateral security established on the instant real property

D. Auction of the real estate of this case

(1) On November 18, 2008, the real estate of this case was sold upon the Plaintiff’s application for compulsory auction based on the above claim for indemnity, and the ownership transfer registration was completed on November 14, 2008, and accordingly, all obligations, including the first-third collateral, were cancelled and extinguished.

(2) On December 14, 2007, the Defendant Industrial Bank of Korea transferred the secured claim of the second mortgage to a limited liability company specializing in asset-backed securitization in accordance with the Asset-Backed Securitization Act. On December 8, 2008, the auction court distributed KRW 16,262,523 to the limited liability company specializing in asset-backed securitization and KRW 41,659,027 to the Defendant Samsan Co., Ltd., the third collateral mortgagee, respectively, who was the successor of the second collateral mortgagee, out of the proceeds from the sale of the instant building on December 8, 2008. On the other hand, all of the proceeds from the sale of the instant land was preferentially distributed to the senior creditors, and the Defendant Sam-si was not paid dividends based on the first collateral mortgage.

In reference, with respect to the mortgage contract between Pungyang-ro on February 19, 2008 and Defendant Samsan Commercial Co., Ltd., which was concluded as of June 22, 2007 with respect to the instant building, the Plaintiff is currently pending a lawsuit seeking revocation of a fraudulent act under the Seoul Northern District Court Decision 2008Gadan9270, which was filed on June 22, 2007.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 15, Eul evidence Nos. 1 through 14 (including each number), the purport of the whole pleadings

2. Determination on the legitimacy of a lawsuit

A. The part of the claim against the defendant Sam-American Commercial

We examine the defenses set forth in the preceding part of the main claim of the defendant Samchina ex officio.

As seen earlier, the first and third collateral mortgages were cancelled ex officio as the ownership of the instant real estate was knocked out to a third party during the auction procedure, and the Defendant Samsan did not receive any dividend on the instant land, and otherwise, there is no possibility that the Plaintiff would receive any benefit from the establishment of the right to collateral security, so long as the Plaintiff’s claim seeking revocation of the contract to establish the first and third collateral mortgages on the instant land against the Defendant Samsan Commercial as there is no benefit of lawsuit, and thus, is unlawful.

B. Claim against the defendant Industrial Bank of Korea

The defendant Industrial Bank of Korea asserts on December 14, 2007 that the right to collateral security of this case was transferred to a limited company specializing in asset-backed securitization, and thus, the defendant is not qualified.

On the other hand, even if a subsequent purchaser was incurred after a fraudulent act, a creditor may select a beneficiary and a subsequent purchaser from among the beneficiary and the subsequent purchaser, and seek cancellation of a fraudulent act and restitution of the original status. As long as a contract to establish a mortgage between the debtor and the beneficiary is fraudulent, it would be contrary to the purport of Article 406(1) of the Civil Act to require the beneficiary to hold the consideration for the transfer of the right to collateral even if the registration of the establishment of the right to collateral was cancelled due to the successful bid after the transfer of the right to collateral security and the subsequent purchaser received dividends as a transferee of the right to collateral security. Therefore, the creditor who is damaged by the right to collateral security may seek cancellation of the fraudulent act against the subsequent purchaser, as well as to seek cancellation of the right to collateral

Therefore, Defendant Industrial Bank of Korea’s defense prior to the merits is without merit.

3. Judgment on the merits

A. As seen earlier, Pungyang-ro is deemed to have been in excess of its obligation at the time of entering into a contract to establish a second-class mortgage. Therefore, in such circumstance, it is presumed that Pungyang-ro entered into a contract to establish a mortgage with the Defendant Industrial Bank of Korea, one of the creditors constitutes a fraudulent act against the Plaintiff, which is the creditor, barring special circumstances, and that as Pungyang-ro was aware that it would prejudice the creditor at the time, and furthermore, it is presumed that the Defendant Industrial Bank of Korea, the beneficiary, was malicious.

B. Judgment on the assertion by the Defendant Industrial Bank of Korea

The defendant Industrial Bank of Korea asserts to the effect that it does not intend to do so as part of normal business for normalization of financial transactions on Pungyang-ro in light of the circumstances of creation of the second collateral mortgage.

In the case of a fraudulent act, the intention to commit a fraudulent act means recognizing the fact that it is impossible to fully satisfy the creditor's claims due to the deficiency in the joint security of claims or the lack of the joint security already in the state of shortage by the debtor's act of disposal of assets, and there is no need to avoid or intended to avoid undermining the creditor's claims.

In this case, at the time of concluding the second collateral mortgage contract, Pungyang-ro was in excess of the obligation, and even if only the register of the land and the building in this case is revealed, it seems that the Defendant Industrial Bank was aware of the aforementioned circumstances at the time of concluding the second collateral mortgage contract.

Furthermore, the defendant Industrial Bank of Korea has already established the right to collateral security corresponding thereto with respect to the land of this case at the time of the implementation of the existing loan. Since the building of this case had already been newly constructed, the security value did not take into account thereafter, and accordingly, measures such as filing an application for auction, withdrawal, extension of loan period, etc. of the management status of P P P P P P P P P P P P P P P P P P P P P P P P P PP would be contrary to equity in relation to other creditors, including the plaintiff, if the defendant Industrial Bank of Korea has priority over the building of this case newly incorporated into the P P P P P P PPP

Therefore, as otherwise alleged by the Defendant Industrial Bank of Korea, the second collateral mortgage contract cannot be viewed as a fraudulent act in relation to the general creditors including the Plaintiff.

4. Conclusion

As such, the part of the claim against the defendant Samsan Co., Ltd. in the lawsuit of this case is unlawful, and thus, it is so decided as per Disposition by the assent of all participating Justices on the ground that the contract to establish a second-class mortgage between the defendant Industrial Bank of Korea and Pungyang Pung

[Attachment of List]

Judges Cho Jae-chul (Presiding Judge)