Law Firm Den, Attorney Park Jong-soo

Attorney Ansan-seok, Counsel for the defendant-appellant

1. Where a legal act on a certain real estate constitutes a fraudulent act, in principle, the relevant fraudulent act shall be revoked and an order to recover the real estate itself, such as the cancellation of transfer of ownership;

However, in cases where it is impossible or considerably difficult to return originals, as a performance of the duty to restore the property, compensation equivalent to the value of the object of the fraudulent act shall be ordered, and in cases of compensating for such value, compensation shall be ordered only for the value within the scope of the establishment of the fraudulent act as joint security among the general creditors from the perspective of fairness (see, e.g., Supreme Court Decision 2007Da29119, Jul. 26, 20

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On May 23, 2012, B Co., Ltd. (hereinafter referred to as “B”) concluded an additional mortgage agreement and an additional mortgage agreement with regard to the instant building to be newly constructed on the instant land between K and K as of May 23, 2012, the debtor G Co., Ltd. (hereinafter referred to as “G”) and the maximum debt amount of KRW 1,950,000,000 for the construction of a neighboring mortgage of KRW 1,950,000 for the instant building to be newly constructed on the instant land between K and K on the same day.

B. B closed on June 30, 2013, the construction of the instant building was also suspended. On February 17, 2015, and March 25, 2015, the Defendant purchased from K a loan claim against G and a right incidental thereto.

C. On April 30, 2015, upon the creditor’s request for the registration of provisional seizure against B, the registration of preservation of ownership of the instant building was completed under the name of B, and on May 7, 2015, B completed the registration of establishment of the instant building on May 4, 2015, including the additional contract on the instant building, the mortgagee, the Defendant, the maximum debt amount of 1,950,000,000 won, and the land of the instant joint security.

D. On May 8, 2015, B completed the registration of transfer of ownership on the ground of “sale on March 13, 2015 (hereinafter “instant sales contract”) with respect to the instant building to the Defendant.”

E. The Defendant purchased land at the auction procedure on the instant land and on October 14, 2015.

After completing the registration of ownership transfer in the name, the building of this case was removed around November 2016.

3. Examining these facts in light of the legal principles as seen earlier, even if the sales contract on the instant building constitutes a fraudulent act, it is impossible to restore the original object because the building was already removed. As such, the Defendant, as a performance of the duty to restore, shall compensate for the amount within the scope of the establishment of the fraudulent act by constituting joint security of the general creditors among the instant

However, according to the records, the actual grounds for registration of the establishment of the instant neighboring mortgage shall be deemed not the additional contract as of May 4, 2015, which is the grounds for registration on the registry, but the additional contract as of May 23, 2012 and the additional mortgage creation contract as of May 23, 2012. In addition, at the time of the instant sales contract, the instant building was unregistered and was not completed as of May 23, 2012, and the grounds for registration of the establishment of the instant neighboring mortgage had already existed, and the registration of the establishment of the instant neighboring mortgage was completed according to the grounds for registration after the registration of the establishment of the ownership was completed, and the ownership transfer registration under the instant sales contract was completed in succession.

Therefore, if the registration of ownership preservation has been completed before the fraudulent act, it was anticipated that the mortgage should be created according to the additional agreement and the additional mortgage agreement on May 23, 2012. As long as the registration of the establishment of the neighboring mortgage of this case has been completed effectively, the amount of the claim secured by the mortgage of this case at the time of the fraudulent act shall be deemed to be the portion that does not belong to the joint security of the general creditors. Therefore, the lower court should have ordered revocation of and compensation for the fraudulent act within the extent of the amount obtained by deducting the amount of the claim secured by distribution in proportion to the value of the land and the building which are the object of the joint right of this case from the value of the building.

This is more clear compared to the fact that the ownership of the building would have been restored to B when the instant building could have been restored due to the removal of the building, compared to the fact that the ownership of the building would have been restored to B while the instant right to collateral security remains effective.

Nevertheless, on March 13, 2015, the date when the instant sales contract was concluded, the lower court determined that the amount of the secured debt of the right to collateral security cannot be considered when calculating the amount of the property held by ordinary creditors as joint collateral, on the ground that there was no registration of establishment of a mortgage of the instant case as of March 13, 2015. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of return of the value due to revocation

4. 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 Park Sang-ok

Justices Cho Jae-sik in charge

Justices Noh Jeong-hee