구상금
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
The grounds of appeal are examined.
1. Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act, the beneficiary is responsible for proving his/her good faith in order to be exempted from liability.
In such a case, whether the beneficiary acted in good faith shall be determined reasonably in light of the logical and empirical rules, comprehensively taking into account the following: (a) relationship between the debtor and the beneficiary; (b) details of and the process or motive for the act of disposal between the debtor and the beneficiary; (c) whether there are no special circumstances to doubt that the terms and conditions of the act of disposal are normal and reasonable; and (d)
(1) In order for a beneficiary to be deemed to have been bona fide at the time of a fraudulent act to be recognized, the following circumstances may not be readily concluded based on the reasoning of the lower judgment on July 10, 2008: (a) the evidence, etc. that can be objectively and well-founded; and (b) the statement that is merely a unilateral statement of the debtor or beneficiary or a third party or a statement that is merely a third party, etc., that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decisions 95Da51908, May 23, 1997; 2004Da61280, Jul. 4, 2006).
(1) On November 4, 2011, C concluded a mortgage agreement with the Defendant regarding the real estate listed in the [Attachment 2] List of the first instance trial (hereinafter “instant real estate”), whereby the debtor is a Ctex Co., Ltd. (hereinafter “Nonindicted Company”) and the maximum debt amount of which are KRW 100 million (hereinafter “instant mortgage agreement”). On the same day, C completed the registration of establishment of a neighboring mortgage (hereinafter “the registration of establishment of a neighboring mortgage”).
(2) At the time of entering into the instant mortgage contract, C had real estate equivalent to KRW 372,50,000 at the market price as active property, but it is a small property exceeding the market price, including the indemnity liability against the Plaintiff.