1. The judgment of the court below

A. In full view of the evidence adopted, the lower court acknowledged the following facts.

(1) The Nonparty, in co-ownership with his wife and co-ownership, owned and operated the building of ○○○ Tourist Hotel on the ground level 2 and 5th above ground level (hereinafter referred to as “Gu office”).

(2) The Nonparty: (a) opened and repaired the Gu pipe; (b) newly constructed one tourist hotel (hereinafter referred to as “new hotel”) on the ground above ( Address 1, 2 omitted) (hereinafter referred to as the “instant land”); and (c) applied for a loan from the Tourism Promotion Development Fund at the former branch of the Plaintiff bank on January 10, 1997; and (d) obtained a loan from the Plaintiff within the amount of KRW 4 billion in order of the old library’s opening, repair, and new construction funds; (b) first, established the right to collateral with respect to the instant land and the old library as collateral; (c) concluded a transfer security agreement on the part of the new library with respect to the construction work, and set the right to collateral in the first order immediately after completing the preservation registration. Pursuant to the aforementioned agreement, the Plaintiff loaned the Nonparty KRW 4.2 billion in total from June 5, 1997 to April 17, 1998.

(3) While the Nonparty was performing construction works such as new construction of new units with the above loan funds, from the end of 197 to the economic crisis. On April 24, 1998, the registration of provisional seizure by the Korea Technology Credit Guarantee Fund was completed with respect to the instant land and the Gu section, and the Nonparty was in arrears with the agreement on the Plaintiff from May 15, 1998, and on May 21, 1998, the Nonparty was registered as the yellow Trade Office at the Gowon branch of the Jeonbuk Bank Co., Ltd., Seoul Special Metropolitan City on May 21, 1998. Accordingly, under the Plaintiff’s loan regulations, the Plaintiff suspended the loan because it is possible for the Nonparty to cancel the above provisional seizure registration, cancel the yellow Trade Office registration, or complete the new construction of the new unit. After that, the Nonparty requested the additional loan several times, but the Plaintiff rejected it.

(4) When additional loans from the Plaintiff were difficult, the Nonparty sought to the Defendant on August 10, 1998, without disclosing the fact that the new building was offered to the Plaintiff as a collateral for transfer, and that the Plaintiff was agreed to set the first priority collateral after completion of the construction, the Nonparty’s loan obtained a loan from the Plaintiff and conducted approximately 80% of the construction and alteration and repair of the new house, but it is difficult to proceed with the construction due to the non-party’s failure to obtain additional loan from the Plaintiff, and thus, it would be difficult to establish the first priority collateral security right as to the new building. Accordingly, the Nonparty requested to grant a loan of KRW 1.5 billion out of the construction fund.

(5) Meanwhile, on August 28, 1998, the defendant and the non-party concluded a collateral security contract to secure the existing loan amounting to KRW 475 million and the maximum debt amount of the defendant's name for the new building on the same day, and on the same day, registered the establishment of the collateral security contract of this case between the non-party and the non-party from August 29, 1998 to September 9, 1998. The defendant extended the non-party a loan of KRW 1.45 billion in total from August 29, 1998 to September 9, 1998.

(6) At the time of the above contract to establish a mortgage, the Nonparty’s property was equivalent to KRW 4.735 billion, while the debt was equivalent to KRW 6.678 billion, the Nonparty was in excess of the debt.

B. Based on such factual basis, the lower court determined that the Nonparty’s conclusion of the aforementioned mortgage contract with the Defendant in excess of his/her obligation constitutes a fraudulent act in relation to the Plaintiff, and that the Nonparty was aware that it would be prejudicial to the Plaintiff due to the said mortgage contract, and that the Defendant was aware of it at the time, barring any special circumstance, the said mortgage contract should be revoked as a fraudulent act, and that the Defendant was obligated to implement the registration procedure for cancellation of the establishment of the instant mortgage registration with the Nonparty as its restitution. In addition, the lower court rejected the Defendant’s defense on the grounds that there was no evidence to acknowledge the Defendant’s good faith as to the Defendant’s defense

2. Judgment of party members

A. However, we cannot accept the judgment of the court below for the following reasons.

(1) An obligor in excess of debt constitutes a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decisions 86Meu83, Sept. 23, 1986; 88Meu23186, Sept. 12, 1989; 97Da10864, Sept. 9, 197). However, barring any special circumstance, barring any special circumstance, an obligor’s act of establishing a security right does not constitute a fraudulent act in relation to the obligor’s lending of funds in a situation where it is difficult for the obligor to continue operating his/her business due to the financial crisis as in the instant case. In order to raise funds, it would be the best way for the obligor to exercise the ability to perform the obligation, and if it is inevitable to provide certain creditors with real estate as collateral and obtain new funds additionally from them, barring any special circumstance.

(2) However, according to the facts acknowledged by the court below in this case, at the time when the non-party was granted a new loan from the defendant and promised to grant the defendant the above right to collateral security, the non-party was unable to obtain an additional loan of KRW 3 billion from the plaintiff, and thus it is difficult for the non-party to continue to implement the construction, alteration, and repair of the new company due to the financial difficulties. The non-party already obtained a loan from the plaintiff in the above work, and the construction has been conducted a process of approximately 80% since the construction was conducted, it was inevitable for the non-party to set up the collateral security right in this case to believe that it was the best method to recover the debt and to complete the construction by receiving the additional loan of KRW 4 billion,000,000,000,000,000,0000,0000 from the defendant to complete the construction, and thus, it does not constitute the non-party's new act of fraud, barring any special circumstances.

(3) In light of the fact that the non-party, after receiving a new loan from the defendant, paid only KRW 100 million as construction cost to the non-party, the contractor of the new construction project, and used only new loan for the above construction project, and that the non-party's liability property has no increased since receiving a new loan, the court below recognized that the non-party concealed the new loan after obtaining a new loan from the defendant, and recognized that the non-party was an important basis for recognizing the non-party's intention to understand the non-party's intention. In addition, as recognized by the court below, if the non-party provided a new building as collateral and concealed the new loan from the defendant, the non-party's intention to understand may be recognized. However, according to the records, the non-party stated at an investigative agency that the non-party was to complete the new construction project after obtaining a new loan from the defendant and completed the new construction project, and that the non-party's new loan needs to be used only for the new construction of the new one after the completion of the construction project after the fact-finding of the new loan.

(4) In a lawsuit seeking revocation of a fraudulent act, the beneficiary's bad faith is presumed to have been committed, and thus, the beneficiary must prove his/her good faith in order to be exempted from liability. However, it is the best way for the debtor to continue his/her business by financing funds in a situation in which it is difficult to continue his/her business due to financial difficulties, and there is no other way to lend funds to the beneficiary. Thus, if the beneficiary acquired the collateral by offering real estate as collateral and seeking financing funds from the beneficiary, and the beneficiary was aware that the debtor would have attempted to conceal the funds at the time, barring special circumstances, the beneficiary would have known that the debtor would have been able to do so. Therefore, in this case, the court below cannot be understood as denying the defendant's bona fide defense against the defendant.

(5) The lower court deemed that the Defendant did not appraise the value of the new building upon receiving the Nonparty’s request for a loan from the Nonparty, and did not see the Plaintiff as the existing lender, and that the Defendant’s loan was based on the fact that it was in violation of the Defendant’s loan limit, and such circumstance appears to have affected the lower court’s rejection of the Defendant’s defense. However, in a lawsuit seeking revocation of a fraudulent act, the issue is only whether the beneficiary acted in good faith, and whether there was negligence on the part of the beneficiary is not an issue. Therefore, even if considering the circumstances cited by the lower court, the circumstances cited by the lower court were considered as follows: (a) the Nonparty’s business was conducted in this case; (b) the Nonparty had no choice but to request the loan of KRW 475 million; and (c) the existing loan amount was KRW 1.455 million compared to the amount of KRW 5 million, barring any special circumstances, it cannot be deemed that the Defendant had had had had had the intention of

B. Nevertheless, the court below determined that the act of establishing a mortgage of this case by the non-party constitutes a fraudulent act on the grounds as stated in its reasoning, and therefore, it is clear that there was an error of law by misunderstanding the legal principles as to fraudulent act and failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment 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 Lee Han-gu (Presiding Justice)