사해행위취소
The defendant's appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
Purport of claim and appeal
purport.
1. The reasons why the court of the first instance, which cited the case, are stated in this case, are as follows, except where the defendant added the following "2. Additional Judgment" as to the argument that the defendant added and drafted in this court, and thus, it is identical to the reasons of the first instance judgment. Thus, it shall be cited as it is by the main sentence of
2. Additional determination
A. A, who has carried out the Defendant’s alleged painting construction work and waterproof construction work, is the best way to continue the business even if he/she lends money to the Defendant for the reason that it is difficult to continue the business due to financial difficulties, and the continuation of the business is the best way to have the ability to repay debts. Since A, around October 2017, borrowed KRW 20 million from the Defendant and inevitably created a security against the Defendant, the instant real estate does not constitute a fraudulent act.
B. Determination 1) In principle, an obligor’s act of offering real estate owned by him/her to any of the creditors constitutes a fraudulent act in relation to other creditors. However, the obligor’s act of creation of security interest does not constitute a fraudulent act, barring any special circumstances, where it is inevitable to provide certain creditors with real estate as security and obtain additional loans from another creditor in order to provide funds in a situation in which it is difficult to continue to conduct the business due to financial difficulties, and it is the best way for the obligor to have the ability to repay obligations. In addition, the obligor’s act of creation of security interest does not constitute a fraudulent act (see, e.g., Supreme Court Decisions 200Da5015, May 8, 2001; 2013Da93746, Mar. 27, 2014). The Defendant lent KRW 20 million to A around October 2017, which was the time of the creation of the instant collateral security interest.
According to the Defendant’s assertion, the Defendant acquired and kept a copy of the fake Check around June 2016, and a copy of the KRW 10 million around September 2016, and the said check by leasing KRW 20 million to A around October 2017.