[2] Where a debtor becomes a surety by establishing a right to collateral security on his/her own real estate to secure a third party's obligation, the method of assessing the debtor's active property, and where the debtor's active property is insufficient or the debtor's status becomes worse, whether a fraudulent act is established (affirmative)

[2] The debtor's act of setting up a collateral on his/her own real property to secure a third party's obligation, which reduces the debtor's property for the general creditors as the value of the real property as collateral. Thus, the debtor's act of setting up a collateral on his/her real property to secure a third party's obligation, which deducts the amount of the secured debt held by other creditors within the scope of the maximum debt amount, as the debtor's active property should be assessed. If the debtor's property falls short or

1. Regarding ground of appeal No. 1

A. In order for a creditor to seek revocation of a legal act against the beneficiary as a revocation of a fraudulent act, and to seek revocation of a subsequent purchase act against the subsequent purchaser, the subsequent purchaser’s bad faith refers to the perception that the legal act between the debtor and the beneficiary at the time of the subsequent purchase act would prejudice the creditor, that is, that is, the objective requirements for the fraudulent act. Meanwhile, in a lawsuit seeking revocation of a fraudulent act, the creditor who asserts revocation has the burden of proving that the debtor’s bad faith is not a creditor, but the beneficiary or the subsequent purchaser is a bona fide person. In the event that the debtor’s act of disposal of property constitutes a fraudulent act, it shall be based on objective and acceptable evidence, etc. in recognizing that the beneficiary or the subsequent purchaser was bona fide at the time of the fraudulent act or the subsequent purchaser’s fraudulent act, and it shall not be concluded that the beneficiary or the subsequent purchaser was not bona fide at the time of the subsequent purchase act or the subsequent purchaser’s unilateral statement or that it was merely a third party’s subsequent purchase act (see, e.g., Supreme Court Decision 2005Da6484.

B. According to the reasoning of the judgment below, the court below determined that the contract of this case entered into between the non-party 1 and the defendant 1 with respect to the real estate of this case constitutes a fraudulent act, and rejected the argument that the defendant 1 constitutes a bona fide beneficiary. The court below held that the defendant Hyundai Mamotob Korea Co., Ltd. (hereinafter referred to as the "the defendant Hyundai Mamoto Korea"), the subsequent purchaser, continued to engage in the transaction for a considerable period of time, and it was reasonable that the bill of this case, including the real estate of this case, which was donated to the non-party 1, was provided as collateral for the non-party 1 and the real estate of this case, which was donated to the non-party 1 as collateral. However, it is difficult to conclude that the defendant Hyundai Masung Co., Ltd. and the non-party 1 was aware of the fact that the amount exceeded the debt of the non-party 1, the representative director of the YY, and it was the non-party 1's own real estate or the real estate of this case.

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

(1) According to the reasoning of the judgment below, the court below acknowledged that the real estate of this case 1, which was Defendant Hyundai Ho, was the only property of Nonparty 1, and was donated to Defendant 1, and thus, it did not know that the joint security of the general creditors of Nonparty 1 would be insufficient.

(2) However, considering the reasoning of the lower judgment and the following circumstances revealed by the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, it is difficult to reverse the presumption of bad faith and to recognize good faith solely on the grounds stated by the lower court.

(1) White Paper Co., Ltd. has entered into an agency contract with the original industry stock company, and has been supplied with a set of ships and sold.

② In order to secure the claim for the purchase price of the goods against the Yannwon Co., Ltd., the Gyeongwon Industrial Co., Ltd.: (a) with respect to the registration of creation of a mortgage covering KRW 30,00,000 on May 7, 1992, with respect to the real estate of this case owned by Nonparty 1 ( Address 1 omitted), and KRW 20,000,000 on November 20, 195; (b) the registration of creation of a mortgage covering KRW 48,00,000 on April 15, 199; (c) the registration of creation of a mortgage covering KRW 40,000 on the real estate of this case owned by Nonparty 1; and (d) the registration of the establishment of a mortgage over KRW 14,50,00 on July 7, 199 with respect to the real estate of this case owned by Nonparty 1, the wife of Nonparty 1; and (e) the registration of creation of a mortgage over KRW 1, 2001,0000.

③ On January 2, 2009, Gyeongwon Industrial Co., Ltd. was merged with Defendant Hyundai Co., Ltd.

④ In the event that a promissory note in an amount equivalent to KRW 7,800,000 among promissory notes delivered by the white book to Defendant Hyundai Co., Ltd. as the price for goods was refused on October 31, 201, the supply of goods to Defendant Hyundai Co., Ltd. was discontinued on October 31, 201.

⑤ The Defendant Hyundai Co., Ltd. requested a foreign credit information company to investigate the assets of Nonparty 1, the representative director of the white registry, and, with respect to Nonparty 1’s Nos. 264-1 ( Address 1 omitted) apartment Nos. 202, 1513, Bupyeong-gu, Incheon, Busan, the Plaintiff, for which the establishment of subordinated security right is excessive, and there is no value of collateral. Nonparty 1 entered into the instant donation contract on October 26, 201, and completed the registration of transfer of ownership with Defendant 1 on October 27, 2011, and requested the cash settlement of promissory notes, which were refused to be paid to Defendant 1 and the additional establishment of a collateral security right on the real estate No. 1 through 5.

④ On November 4, 2011, the White Record Co., Ltd. completed the registration of the establishment of the instant neighboring real estate of KRW 306,00,000 with respect to the instant maximum debt amount of KRW 306,00,000 with respect to the instant real estate under Defendant 1, in order to secure the obligation for the purchase of goods against Defendant Hyundai Co., Ltd., as required by Defendant Hyundai Co., Ltd., and paid KRW 7,800,000, which was refused to pay on November 9, 201, to Defendant Hyundai Co., Ltd.

④ The sum of the maximum debt amount for each establishment registration of a new mortgage, which Defendant Hyundai Co., Ltd. completed in order to secure the above goods payment obligation against Defendant Hyundai Co., Ltd. around November 17, 201, is KRW 474,608,000, and the aggregate of the maximum debt amount for each establishment registration of a new mortgage (=268,000,000 + KRW 306,000,000).

8. The White Paper Co., Ltd. lost the benefit of time on November 18, 201 because it was impossible for the Bank to pay the principal and interest of loans to the Bank four times as collateral each credit guarantee instrument that was concluded with the Plaintiff and issued with the credit guarantee agreement.

D. Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning, where there is no objective evidence to obtain payment. In so doing, the lower court erred by misapprehending the legal doctrine as to facts by failing to exhaust all necessary deliberations or by misapprehending the subsequent purchaser’s bad faith, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

2. Regarding ground of appeal No. 2

A. Fraudulent act refers to an act detrimental to the creditor by reducing active property or increasing the negative property, thereby impairing the status of the debtor in excess of his/her obligation, or deepening the situation where the debtor has already been in excess of his/her obligation. In order to secure a third party’s obligation, the act of the debtor who becomes a surety by setting up a collateral security right on his/her own real property to reduce the debtor’s general obligees’s liability property in proportion to the value of the collateral. As such, only the balance calculated by deducting the amount of the secured claim held by other creditors from the value of the real property provided as a collateral within the scope of the maximum debt amount shall be assessed as the debtor’s active property. Accordingly, if

Meanwhile, in determining whether a fraudulent act is a subject of creditor revocation, if an asset owned by an obligor is already provided as a physical collateral for another obligee’s claims, the portion provided as a physical collateral cannot be deemed a debtor’s liability property for the general creditors. Therefore, the remainder of the amount obtained by deducting the amount of claims secured by other creditors from the value of the asset offered as a physical collateral cannot be deemed as the obligor’s liability property for the general creditors, and shall be assessed as the obligor’s active property (see Supreme Court Decisions 2010Da64792, Jan. 12, 2012). If a joint mortgage is established on several real estate, the amount of claims secured by each real estate shall be calculated as the amount calculated by dividing the amount of claims secured by the joint mortgage in proportion to the value of each real estate provided as a joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance (see Supreme Court Decisions 2003Da3989, Nov. 13, 2003; 2008Da2675710

B. According to the reasoning of the judgment below, the court below determined as follows: (a) the total amount of active properties owned by Defendant 1 at the time of concluding the instant mortgage contract was equivalent to KRW 584,50,00,00; (b) the obligation to pay the deposit amount of KRW 110,00,000 to the National Bank of Korea; (c) the obligation to pay the deposit amount of KRW 120,000 to the National Bank of Korea; and (d) the obligation to pay the deposit amount of KRW 122,00,000 (which is stated in the original judgment, but it is apparent that this is a clerical error); (d) the obligation to pay the deposit amount of KRW 167,623,500 to the Plaintiff, which was likely to be realized in the near future, decreased to KRW 37,50,00; and (e) the obligation to pay the deposit amount of KRW 130,000 to the Defendant’s obligor with KRW 130,000,310.

C. However, the above determination by the court below is not acceptable in light of the legal principles as seen earlier.

(1) As seen earlier, the following facts are recognized.

① In order to secure the goods payment obligation for Defendant Hyundai Co., Ltd., the registration of creation of a neighboring mortgage of the instant case was completed prior to the completion of the registration of creation of a new collateral of KRW 268,000,000, total sum of the maximum debt amount.

② On November 4, 201, 201, the White Record Co., Ltd. completed the registration of the establishment of the instant neighboring real estate of KRW 306,00,000 on the maximum debt amount regarding the instant 1 through 5 real estate in order to secure the Defendant’s obligation for the purchase of goods against the Defendant’s modern friendship at the request of the Defendant Hyundai Co., Ltd.

③ The price for the goods not paid by the White Co., Ltd. around November 17, 201 is KRW 474,608,000.

(2) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

① As a creditor, the Plaintiff’s claim against Nonparty 3 (Attorney in Bankruptcy, No. 4) of the White Book Co., Ltd. was seized and received as a whole.

② Around June 18, 2014, the White Record Co., Ltd. submitted to the Incheon District Court an application for renunciation of an objection to the above claim attachment and assignment order, alleging that the Plaintiff agreed to repay the claim for reimbursement against Defendant 1’s reimbursement of the entire amount. Accordingly, the Plaintiff was paid KRW 120,620,000 on June 24, 2014.

(3) Examining the aforementioned circumstances in light of the legal principles as seen earlier, Defendant 1’s active property should be assessed as obligor’s active property only after deducting not only the amount of the secured claim already owned by Defendant 1, but also the amount of the secured claim that is excluded from Defendant 1’s general creditors’ property due to the conclusion of the instant mortgage agreement. Meanwhile, as otherwise alleged in Defendant 1, the amount of KRW 120,620,000 paid by Defendant 1 on June 24, 2014 cannot be deemed as having received the entire amount of the claim against Nonparty 3 (Attorney 4 in bankruptcy) of Defendant 1 as having received the entire amount of the claim against Defendant 1 as the amount paid by Defendant 1, since it cannot be deemed as having received the entire amount of the claim against Defendant 1, Defendant 1’s third obligor Nonparty 3 (Attorney 4 in bankruptcy), it should be examined as to whether the entire amount was appropriated for Defendant 1’s obligation of reimbursement against the Plaintiff. Moreover, whether the additional damages for delay in Defendant 1’s claim against Defendant 1 should also be determined.

D. Nevertheless, the lower court determined that Defendant 1 could not be deemed to be insolvent solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine as to the determination of the debtor’s insolvency or by misapprehending the legal doctrine on the determination of the debtor’s insolvency. The allegation contained in the grounds of appeal on

3. Conclusion

Therefore, the judgment of the court 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.

Justices Park Sang-ok (Presiding Justice)