A. It is reasonable to view that, in the event that a debtor sells a real estate in an auction procedure due to the execution of a mortgage through a fraudulent act, and the registration of the establishment of a mortgage was cancelled due to the repayment of the secured debt to a beneficiary who is a mortgagee, barring any special circumstance, the aforementioned repayment was made in preference to general creditors based on the right to preferential reimbursement of the right to reimbursement of the right to reimbursement of the right to reimbursement of the mortgage. Therefore, it is unreasonable to require the beneficiary to hold profits from the cancellation of the mortgage. Therefore, a creditor who was damaged due to the registration of the establishment of a mortgage in the past has a benefit to seek cancellation of the mortgage contract, which is a fraudulent act, for restitution (see Supreme Court Decisions 2012Da65058, Nov. 15, 201; 2014Da82118, Apr. 23, 2015). If the mortgage contract was cancelled as a fraudulent act, it is impossible to obtain the ownership of another person and return the original property if the mortgage was cancelled (see Supreme Court Decision 2007Da70708, Feb. 2010.

B. The lower court acknowledged the following facts.

1) On June 15, 2015, Nonparty 1 concluded a mortgage contract with Defendant 1 on June 15, 2015 with respect to the instant immovable property, and concluded a mortgage contract with Defendant 1, and completed the registration of establishment of a mortgage with the maximum debt amount of KRW 130,000,000. On August 21, 2015, Nonparty 1 concluded a mortgage contract with Defendant 2 and completed the registration of establishment of a mortgage with the maximum debt amount of KRW 70,000,000.

2) Defendant 1 filed an application for voluntary auction on the instant real estate No. 2 with the Changwon District Court Msan Branch No. 2015, 7745, and the said court rendered a decision to commence voluntary auction on October 21, 2015.

3) On October 26, 2015, Nonparty 1 sold the instant real estate No. 2 to the Mapo-gu Saemaul Bank.

4) On October 27, 2015, the Defendants deleted the registration of the establishment of a neighboring community on the instant real estate No. 2, and on the same day, provisional registration was established in the name of the Mapo-nam Saemaul Bank.

5) On November 4, 2015, the Korea Saemaul Savings Depository paid KRW 200,000,000 to Nonparty 2, a representative of Defendant 1, and KRW 20,000 to Defendant 2, respectively.

6) On January 28, 2016, the ownership transfer registration based on provisional registration was completed on the second real estate in the name of the Mapo-nam Saemaul Depository.

C. In addition, based on the aforementioned factual basis, the lower court determined that the Defendants could not seek the return of the amount as compensation for the value of the cancellation of the mortgage contract without arguing the intent of the act of repayment itself, since the registration of establishment of a mortgage based on each of the aforementioned fraudulent acts was already cancelled, and the amount received by the Defendants was acquired by means of a repayment separate from each of the above mortgage contract.

D. However, it is difficult to accept the above determination by the court below for the following reasons.

The debtor non-party 1 sold the non-party 2 real estate of this case in the auction procedure due to the execution of the right to collateral security by fraudulent act to the Mapo-gu Saemaul Savings Depository, and since the above safe was cancelled the right to collateral security established in the future for the defendants, the defendants shall be deemed to have been paid prior to all general creditors, including the plaintiff, based on the right to preferential payment of collateral security, and it is unreasonable to have the defendants hold the money to be paid in return for the cancellation of the right to collateral security. Therefore, there is a benefit to seek cancellation of each right to collateral security contract, which is a fraudulent act, to the plaintiff, and as long as it is impossible to return the original property due to the cancellation of each right to collateral security, the defendant may claim restoration of the real estate of this case by means of compensation for the value

Nevertheless, the lower court rejected the Defendants’ claim for compensation for value on the grounds as indicated in its reasoning, even while maintaining the first instance judgment ordering the revocation of each of the mortgage agreement concluded between the Defendants and Nonparty 1 on the instant immovable property on the premise that it constitutes a fraudulent act. In so doing, the lower court erred by misapprehending the legal doctrine on compensation for value arising from the exercise of the obligee’s right of revocation, thereby adversely affecting the conclusion of the judgment.

2. As to the appeal against Defendant 1 on the claim for revocation of fraudulent act

In the final appeal, the Plaintiff was dissatisfied with the part on the claim for revocation of fraudulent act against Defendant 1, but the ground of final appeal did not state any grounds of final appeal as to the above part on the claim, and the final appeal does not state any grounds of final appeal as to this.

3. Therefore, the part of the judgment of the court below concerning the claim for compensation for value is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)