사해행위취소
The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.
The grounds of appeal are examined.
1. Where a right to collateral security has been established to secure a third party's obligation on the real estate transferred by the debtor, the liability property, which is the joint collateral of the general creditors, is the remainder after subtracting the amount of the secured debt actually borne by the general creditors within the maximum debt amount.
Therefore, in a case where the secured claim amount of the right to collateral security and the maximum debt amount of the right to collateral security exceed the price of the real estate, the transfer of real estate does not constitute a fraudulent act, as there is no property jointly secured by the general creditors (see, e.g., Supreme Court Decisions 97Da10864, Sept. 9, 197; 2000Da42618, Oct. 9, 2001). In a case where the debtor disposes of the real estate with the right to collateral security, and the debtor disposes of the real estate with the right to collateral security and cancels the right to collateral security, barring special circumstances, the disposal of real estate cannot be deemed a fraudulent act.
2. According to the evidence duly admitted by the lower judgment and the lower judgment, the following facts are revealed.
H The representative director B of the H Co., Ltd. (hereinafter referred to as “H”) is the Korea Exchange Bank (hereinafter referred to as “Korea Exchange Bank”) with respect to the real estate of this case, which is less than the real estate listed in the attached list of the original judgment of the court below.
In the future, on June 4, 2005 and March 17, 2008, the debtor H and the maximum debt amount are KRW 300,000,000,000, and the registration of the establishment of a new mortgage is completed.
B. On October 9, 2007, the Plaintiff’s credit guarantee agreement between H and the credit guarantee agreement with respect to the obligation to issue the import letter of credit to the Korea Exchange Bank.
B. The credit guarantee principal was set at KRW 960 million and the guarantee term from October 9, 2007 to October 6, 2008.
Since then, the guaranteed principal was changed to KRW 864 million, and the term of guarantee was changed to December 24, 2012.
B around that time, H. according to the credit guarantee agreement of this case.