Law Firm Sejong et al., Counsel for defendant-appellant

Attorneys Lee Jong-soo, Attorneys Park Jong-soo, Bag-won, and Park

Attorney Park Jong-chul, Counsel for the defendant-appellant

Public-service Advocates; use of the public-service advocate; Gangwon-do;

1. In the event that a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured claim amount from the value of the real estate. Therefore, in the event that a registration of establishment of a mortgage is cancelled by repayment, etc. after a fraudulent act, the fraudulent act may be revoked and sought compensation for the value thereof within the extent of the balance obtained by deducting the secured claim amount from the value of the real estate (see, e.g., Supreme Court Decision 96Da23207

2. The lower court revoked the fraudulent act within the scope of the amount obtained by deducting the full maximum debt amount of the instant real estate from the value of the instant real estate (which is less than the Plaintiff’s debt amount) and ordered to compensate for the equivalent amount with restitution, on the ground that the registration of the establishment of the neighboring real estate was revoked after the transfer of the instant real estate on which the right to collateral security was established to a fraudulent act.

3. However, in light of the following circumstances acknowledged by the record of the court below, the fact that the actual amount of collateral security at the time of the fraudulent act did not exist is acknowledged according to the fact inquiry results.

1) The registration of ownership transfer was completed on June 29, 2015 under the Defendant’s name with respect to the instant real estate subject to the revocation of a fraudulent act. At the time, the registration of ownership transfer was completed on April 4, 2008 with respect to the instant real estate, the registration of ownership transfer was revoked on July 10, 2015, after the transfer of ownership, and thereafter the registration of ownership transfer was completed again on July 14, 2015 with respect to the instant real estate.

2) On June 29, 2015, the Plaintiff filed the instant lawsuit seeking revocation of the instant contract by asserting that the instant real estate was a fraudulent act, and clearly indicating that the instant lawsuit was intended to specify the amount of compensation for restitution as of December 12, 2016 in the first instance trial, and filed an application for appraisal of the market price of the instant real estate and an inquiry of the fact as to the actual amount of the secured debt at the time of the said contract.

3) On January 4, 2017, the fact-finding inquiry reply, which was made to the creditor Co., Ltd. on the purport that the secured debt of the instant mortgage was partially repaid and that all of the creditors were repaid as of April 20, 2015, prior to the conclusion of the said sales contract. The result of the appraisal on January 31, 2017, the real estate value of which was KRW 154 million, arrived, and on April 28, 2017, the fact-finding inquiry results and the appraisal results were all notified at the date of pleading on April 28, 2017.

4) On June 8, 2017, the Plaintiff submitted an application for modification of the purport of claim and the cause of claim to seek compensation for the full amount of the Plaintiff’s claim, which is less than the real estate value of the instant real estate, as of June 8, 2017, after the confirmation of fact

4. In light of such circumstances, even though the Plaintiff sought compensation within the scope of the Plaintiff’s claim amount, which is less than the real estate value of the instant real estate, the lower court can find that the lower court erred by misapprehending the scope of compensation for value by recognizing the fact that the amount of the secured debt of the instant mortgage does not coincide with the fact-finding result. Therefore, the lower court erred by misapprehending the conclusion of the judgment by recognizing the facts not based on evidence

5. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Cho Jae-sik in charge