Although a debtor intended to revise or continue his/her business, the act of offering security to one of his/her creditors in order to be postponed from the performance of the existing obligation without a new loan constitutes a fraudulent act in relation to other creditors, barring any special circumstances (see, e.g., Supreme Court Decision 2009Da104564, Apr. 29, 2010).

In addition, in a lawsuit seeking revocation of a fraudulent act, the beneficiary's bad faith is presumed to be presumed to be the beneficiary's bad faith, and thus, the beneficiary is responsible to prove his/her good faith in order to be exempted from his/her responsibility. In such cases, the issue of good faith shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the relationship between the debtor and the beneficiary, the details and motive of the act of disposal between the debtor and the beneficiary, the circumstances leading to such act, whether there are no special circumstances to doubt that the terms and conditions of the act of disposal have been normal transaction, and whether there are objective materials to support the act of disposal, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decisions 2007Da74621, Jul. 10, 208; 2006Da7462166, Apr. 14, 2006). In addition, when recognizing that the beneficiary was bona fide at the time of the fraudulent act, it shall not be readily concluded that the beneficiary was bona fide at the beneficiary at the time of the fraudulent act.

The court below rejected the plaintiff's defense by accepting the plaintiff's objection on the ground that it is reasonable to view that the defendant's business process was conducted based on the terms and conditions of credit transaction and business guidelines, the defendant's credit rating of corporation A (hereinafter "A") assessed by the defendant in accordance with the credit business guidelines was all included in the normal credit range at the time of entering into each of the instant mortgage contract, and there was no delay information in provisional attachment registration except for the registration of establishment of mortgage in priority to the registry of each of the instant real estate. In light of the fact that C had been in excess of the debt of this case and the conclusion of each of the instant mortgage contracts of this case appears to have been done according to ordinary banking business, and even considering the series of measures taken by the defendant and the situation at the time of entering into each of the instant mortgage contracts, it was reasonable to view that the defendant did not know that each of the instant mortgage contracts was fraudulent act.

However, it is difficult to accept such judgment of the court below for the following reasons.

According to the above legal principles, each of the instant mortgage contracts is a fraudulent act which causes the shortage of joint security in relation to the general creditor of C, and thus, in order to deny a claim for restitution to the defendant presumed to be malicious, the defendant's good faith in relation to the said fraudulent act shall be proved by objective and objective evidence, etc.

However, most of the circumstances cited by the lower court are related to A, and it is not directly related to whether C’s general creditors were able to be harmed due to lack of common security in relation to C’s general creditors, or there is insufficient reason to recognize the Defendant’s good faith. Rather, the following circumstances revealed by the reasoning of the lower judgment and the record: ① At the time of establishment of the first right to collateral security, A was in the situation where financial difficulties has deteriorated to the extent that A would not repay 500 million won of the initial installment of the instant loan; ② upon A’s request for the postponement of repayment of the aforementioned installment repayment, the Defendant, as the representative director, set up the first right to collateral as to the real estate listed in Annex A’s Schedule 1, extended the first right to collateral; ③ thereafter, the Defendant requested the extension of the repayment period from 10 months to 30 months after the date of establishment of the second right to collateral security to 10 months after the date of establishment of the second right to collateral security, and each of the real estate in question, which was recorded in the 10th right to collateral security.

Nevertheless, the lower court accepted the Defendant’s assertion that is a bona fide beneficiary and rejected the Plaintiff’s claim. In so determining, the lower court erred by misapprehending the legal doctrine on presumption of bad faith as a beneficiary in a lawsuit seeking revocation of fraudulent act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

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 Lee In-bok

Justices Go Young-young