In principle, restitution following the cancellation of fraudulent act shall be based on the return of the object itself, and compensation for value shall be exceptionally made only when it is impossible or considerably difficult. In case only part of the contract to establish a mortgage constitutes a fraudulent act, the restitution should be made by ordering the execution of the procedure for registration of change of the right to collateral security, which reduces the maximum debt amount of the establishment of a mortgage, unless there are special circumstances.

According to the records, on July 12, 2002, the establishment of a mortgage agreement consisting of KRW 520 million with respect to each immovable stated in the attached list of the non-party's judgment on July 12, 2002, with regard to the non-party's attached list of the judgment below, was completed. The non-party borrowed KRW 1.5 billion with the defendant on October 28, 2002 from the debt excess, and concluded a contract to establish a mortgage agreement, and completed the establishment of a mortgage agreement consisting of KRW 200 million with the remainder of the debt guaranteed by the non-party on July 12, 2002, with the exception of the above maximum debt amount repaid by the non-party on July 28, 200, the remainder of the debt secured by the mortgage agreement out of KRW 201,232,000,000 for the remainder of the debt secured by the non-party on July 12, 2002.

Nevertheless, the court below ordered the defendant to compensate for the value. Thus, there is an error of law by misunderstanding the legal principles on the revocation of fraudulent act, which affected the judgment.

2. Regarding ground of appeal No. 2

The court below rejected the defendant's assertion that the non-party's debt amounting to KRW 290,000,000 against the Industrial Bank of Jinchi Co., Ltd. on October 28, 2002 shall be excluded from the scope of fraudulent act, on the grounds that there is no evidence to prove that the non-party bears the debt to the Industrial Bank of Korea, such as joint and several surety in relation to the above debt amounting to KRW 290,00,000. In light of the records, the court below's above measures are acceptable and there is no error of law by misunderstanding facts against the rules of evidence.

3. Conclusion

Therefore, the lower judgment is reversed, and 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 Ahn Dai-hee (Presiding Justice)