1. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that since the actual secured amount of prior collateral at the time of the establishment of the defendant's right to collateral security does not exceed KRW 1,242,606,270, which is equivalent to the market price of the real estate of this case, as at the time of the establishment of the defendant's right to collateral security of this case, the non-party, who is over the debt, concluded with the defendant as to the real estate of this case, constitutes a fraudulent act, the non-party's right to collateral security of this case should be determined on the basis of the maximum debt amount

In light of the relevant legal principles and records, the fact-finding and judgment of the court below are just, and there is no violation of the principle of pleading as otherwise alleged in the ground of appeal.

2. Plaintiff’s ground of appeal

A. According to the reasoning of the judgment below, in a case where a real estate on which a mortgage is established is transferred by a fraudulent act, the fraudulent act is established within the scope of the balance remaining after deducting the amount of claim actually accrued from the market price of the real estate at the market price of the real estate. Thus, even in the case of the contract to establish the mortgage of this case, the court below determined that a fraudulent act is established only within 154,359,416 won after deducting the amount of claim secured by the prior mortgage of this case from 1,242,606,270 won at the market price of the real estate at the time of entering into the contract and deducting from 1,08,246,854 won, which is the amount of claim secured by the prior mortgage of this case at the time of entering into the contract, only 154,359,416 won among the contract to establish the mortgage of this case. The defendant who is the beneficiary of this case, expressed his/her intention to transfer the claim to the non-party, who is the debtor.

B. However, we cannot accept the above determination by the court below for the following reasons.

(1) In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be revoked, and an order shall be issued to restore the real estate itself by cancelling registration effected by such fraudulent act. Only when it is impossible or considerably difficult to restore the real estate itself, an exceptional order may be issued to compensate for the amount equivalent to the value of the object of the fraudulent act as an obligation to restore the real estate (see Supreme Court Decision 2007Da4004, Jun. 11, 2009, etc.)

In addition, in the event that the act of transfer, etc. was conducted with the debtor's intent to commit a fraudulent act with respect to real estate on which a mortgage is established, it constitutes a fraudulent act only within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in the event that the registration of creation of a mortgage is cancelled by payment, etc. after a fraudulent act, etc., the order to restore the real estate itself by cancelling the whole act, such as transfer, etc. is to restore the portion that was not originally secured by the general creditors to the portion that was not jointly secured by the general creditors. Thus, the order to restore the real estate itself would result in a violation of fairness and fairness. Thus, the transfer, etc. can only be cancelled within the extent of the balance after deducting the secured debt amount of the mortgage

However, in the event that a beneficiary newly acquired a mortgage by a fraudulent act on an immovable on which a mortgage is established, and the mortgage on the ground of the execution of the preceding mortgage was cancelled, and the dividend to be returned to the beneficiary was not paid due to a provisional disposition against the prohibition of the payment of dividends, etc., it should be restored to the original state by means of transferring the right to claim dividends acquired by the beneficiary to the debtor after cancelling the act of causing the acquisition of the mortgage which is a fraudulent act. Ultimately, this would be the form of ordering the debtor to transfer the dividend claim and notify the transfer of the claim (see Supreme Court Decisions 2004Da67806, May 27, 2005; 2010Da97525, Sept. 8, 2011).

(2) In light of the above legal principles and records, in the instant case, since the Defendant, a beneficiary, acquired the instant right of collateral by fraudulent act with respect to real estate on which the prior right of collateral is established, and both the instant right of collateral and the prior right of collateral are cancelled by the execution of the prior right of collateral, it shall be deemed that the Defendant, a fraudulent act, has the duty to cancel the instant right of collateral and to notify the obligor of the transfer of the claim with respect to all the dividend claims acquired by the beneficiary.

Nevertheless, the lower court determined otherwise on the ground that only the part of the mortgage contract of this case 154,359,416 won was established, deeming that the fraudulent act was established, and that only this part was revoked. On the other hand, the lower court determined that the Defendant was obligated to express his/her intent to transfer the claim and notify the assignment of the claim to the Republic of Korea only with respect to the amount of KRW 154,359,416 out of the dividend payment claim of KRW 41,60,986, which was acquired by the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the method and scope of restitution due to revocation

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiff, the part against the plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of

Justices Kim Shin (Presiding Justice)