[2] Legal relations of the discount of bill, and in a case where the debtor paid a bill discounted by another person from a financial institution, which is the creditor, to the time of the fraudulent act alleged by the creditor, whether there is a high probability that the secured claim equivalent to the discount amount of the bill is established or established (negative)

[3] In case where a creditor has a real security interest in the property owned by the principal debtor or joint guarantor, whether the preferential repayment amount should be deducted from the secured claim (affirmative), and the standard for calculating the preferential repayment amount

[2] The discount of a bill issued by a financial institution refers to the purchase of the bill by paying the interest, etc. on the date of payment on the bill to the holder of the bill, so there is only a claim or obligation on the promissory note between the issuer of the bill at discount and the financial institution which purchased the bill at discount, and there is no direct occurrence of a claim or obligation between the bank and the client of discount. However, in case where the promissory note at discount is defaulted, the client bears an obligation as an endorser to the financial institution and the payer to return the discounted value pursuant to a separate agreement. Thus, in case where another person’s bill issued by a financial institution which is discounted by the creditor was settled at the time of the fraudulent act alleged by the creditor, it cannot be deemed that there is a high probability that the debtor was discounted from the financial institution, and thereby, it is true that there was a claim against the financial institution at the time of fraudulent act alleged by the creditor,

[3] In determining whether a juristic act by a joint and several sureties constitutes a fraudulent act, it is not an element to consider the financial resources of the principal obligor or other joint and several sureties. However, in cases where a creditor has a real security interest in the property owned by the principal obligor or the pertinent joint and several sureties, barring any special circumstance, the creditor cannot bring about a fraudulent act only for the remaining amount of claims after deducting the amount of preferential repayment from the amount of preferential repayment. In this case, it is reasonable to calculate the amount of preferential repayment based on the market price of collateral at the time of the juristic act, a change in economic conditions after the juristic act, and a decline in the actual disposal price

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, Gap evidence 2-1, Eul evidence 3, Eul evidence 6-3, Eul evidence 6-4, Eul evidence 7-1 through 6, Eul evidence 14, Eul evidence 14, and the testimony of the court below's abnormal witness confession, the court below's judgment and the witness Lee Jong-chul's objection, and there is no conflict between the parties' evidences 1, Gap evidence 2-3, Eul evidence 6-4, Eul evidence 7-1 through 14.

A. The non-party East Steel Co., Ltd. (hereinafter referred to as the "non-party company") is the subsidiary of the non-party Asian Automobile Industry Co., Ltd. (hereinafter referred to as the " Asian Automobile"), which is an affiliate of the Asian Group, and the non-party Kim Dong-m (hereinafter referred to as the "non-party") was dispatched to the representative director of the non-party company from April 1, 1995 to February 18, 1998 when the Asian Automobile acquired the non-party company. The defendant is the wife of the non-party.

B. On March 29, 1996, the Plaintiff entered into a credit limit transaction agreement with the non-party company to grant general loans, discount bills loans, etc. within the limit of KRW 2,600,000,000. On October 31, 1996, the Plaintiff entered into a comprehensive credit guarantee agreement with the non-party company to jointly and severally bear all obligations that the non-party company is currently and future due to the credit transaction pursuant to the above credit limit transaction agreement with the Plaintiff within the limit of KRW 1,150,000,000.

C. On the other hand, on March 29, 1997, the non-party entered into a donation contract with the defendant on the apartment as stated in the attached list (hereinafter referred to as "the apartment of this case") and completed the registration of ownership transfer as to the apartment of this case on April 1 of the same year. The non-party's property did not have any particular details other than the apartment of this case.

D. At the time of the above donation, the non-party company was under the payment guarantee of KRW 3,09,90,908,204 in total issued by the non-party company by the plaintiff, in addition to the discount of promissory notes worth KRW 3,09,90,719, the non-party company was under the payment guarantee of KRW 570,000 in small and medium enterprise loans of KRW 422,220,000,000, financial bonds loans of KRW 422,220,000,000, small and medium enterprise loans of KRW 375,000,000, KRW 200,000, and KRW 150,000.

E. However, the non-party company did not pay overdue loans or discount bills until June 1997, because the sales amount in 196 increased by 100% or more after the acquisition of an Asian automobile and left 384,778,367 net income in 196, and there was no default on payment of loans or discount bills until June 1997. However, around July 17 of the same year, the non-party company's default on the payment of the discount bills due to the non-party company's default on the payment of the discount notes by financial institutions such as the plaintiff et al., which were the mother company and the Asian company. At the time of the default, the non-party company's debt amount was KRW 2,106,807,000.

2. The parties' assertion and judgment

A. The parties' assertion

Although the Plaintiff was jointly and severally liable for a joint and several liability for the Plaintiff, the Plaintiff’s donation was made to the Defendant, which is the only property of the Plaintiff, with the intent to anticipate the Plaintiff’s default at the time of the donation and the possibility of the Non-Party Company’s default due to this, and that it constitutes a fraudulent act. Therefore, as to the claim that the Defendant sought revocation of the above donation contract and the cancellation of the above transfer of ownership registration, the Defendant asserted that the Plaintiff did not have a preserved claim at the time of the donation, and that the Plaintiff had a physical security right to the extent sufficient to repay the obligation under the above credit limit transaction agreement with respect to the real estate owned by the non-party company, and that the said donation does not constitute a fraudulent act.

(b) the existence and scope of the preserved claim;

(1) Therefore, examining the issue of whether a promissory note was owned by the Plaintiff at the time of the above donation, the non-party company’s claim to be protected by the obligee’s right of revocation is required to be, in principle, to be established prior to the occurrence of a fraudulent act. It is highly probable that a claim would have been established in the nearest legal relationship in the future. If a claim is realized in the near future, the claim would have been secured in the nearest 97Da3434, Oct. 28, 1997. According to the above facts, the non-party company’s claim to be discounted at KRW 100,000, KRW 100, KRW 200, KRW 100, KRW 200, KRW 100, KRW 1000, KRW 200, KRW 3000, KRW 100, KRW 3000, KRW 1000, KRW 200, KRW 3000.

(2) Judgment on the defendant's assertion

(A) The defendant alleged that the non-party's retirement from the office of representative director of the non-party company terminated the above comprehensive collateral guarantee contract between the plaintiff and the plaintiff on February 28, 1998, and thus the plaintiff does not have any preserved claim. Thus, the reference point for determining whether the preserved claim exists as a requirement to exercise the right of revocation is at the time of the fraudulent act, and even if the non-party lawfully terminated the above comprehensive collateral guarantee contract on February 28, 1998, as alleged by the defendant, even if the non-party lawfully terminated the above comprehensive collateral guarantee contract as of February 28, 1998, the claim already occurred at the time of the donation, which is prior to the date of termination,

(B) In addition, the defendant did not delay the performance of the obligation under the above credit limit transaction agreement against the plaintiff due to the sound financial standing of the non-party company at the time of the above donation. As to the above credit claim of KRW 2,117,120,719 against the plaintiff of the non-party company, the plaintiff's joint and several liability claim against the non-party was created or there was no high probability of occurrence, and therefore, the plaintiff asserts that there was no preserved claim against the non-party. Therefore, the joint and several liability guarantor is liable for the full amount of the obligation regardless of the financial ability of the principal debtor. In the case of the comprehensive continuing guarantee, the amount of the debt is changed from time to time until the amount of the debt is determined, and the joint and several liability obligation is already established even before the amount of the debt is determined. In the exercise of the creditor's right of revocation, as long as the secured claim is already established

C. Whether the act constitutes a fraudulent act

(1) As in the instant case, in determining whether a legal act by a joint and several sureties constitutes a fraudulent act, the financial resources of the principal obligor or other joint and several sureties are not factors to consider. However, in cases where a creditor has a real security interest in the property owned by the principal obligor or the pertinent joint and several sureties, barring any special circumstance, the creditor cannot cause damage to the extent of the amount secured, and thus, only the remaining amount of the claim after deducting the preferential repayment amount should be recognized. In this case, the amount of preferential repayment is reasonable to be calculated based on the market price of collateral at the time of the juristic act, and the economic change after the juristic act, the decline in the actual disposal price of collateral

(2) Regarding the issue of whether the non-party's above donation constitutes a fraudulent act, the non-party 2 was assessed as 0.10 won for the above 2,17,719,700 won for the non-party 2 as well as 0.20 won for the above 1,150,000 won for the non-party 2 as well as 900 won for the non-party 2 as 70.10 won for the above mortgage, the non-party 2 as 900 won for the above 700 won for the non-party 2 as well as 900 won for the non-party 2 as well as 900 won for the non-party 3 as well as 90 won for the above mortgage, the non-party 2 as 90 won for the non-party 2 as well as 90 won for the non-party 2 as 90 won for each of the above credit limit of 190 won for the non-party 2 as 97.10 won for the above loans

(3) According to the above facts, the market price of the above factory mortgage object at the time of the above donation can be assessed as KRW 3,592,154,300, which is the same level as the appraisal result in 1996. At the time of the above donation, the plaintiff secured preferential payment right to the total amount of the claim amount of KRW 2,117,120,719 as a factory mortgage on the non-party company's property, which is the principal debtor, and therefore, the above donation does not constitute a fraudulent act against the plaintiff (it may be a fraudulent act against the creditor who did not secure preferential payment right in addition to the plaintiff).

(4) As to this, the plaintiff is expected to have the successful bid price of the above factory mortgage in the future amount of KRW 1,170,000,000,000. Thus, it is only possible to obtain a preferential repayment of KRW 1,170,000,000, which deducts wage claims and auction expenses. Accordingly, the remaining amount should be repaid with the property of the non-party who is a joint and several surety, and thus, it is possible to exercise the right to revoke the above donation. However, as seen earlier, the plaintiff's assertion is not accepted since the circumstances alleged by the plaintiff are not circumstances to consider in determining whether it constitutes fraudulent

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court below which concluded otherwise is unfair, so it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Heung-bok (Presiding Judge)