[사해행위취소·배당이의][공2010하,1454]
Whether the debtor's act of becoming a person who has pledged his/her property to secure another's property by setting up a collateral for the same real property with respect to another person is a fraudulent act against the creditor (affirmative)
Since the debtor's act of creating a collateral on his/her own real estate for another person without any obligation has reduced the debtor's whole property to the extent that the value of the collateral is the value of the real estate, even though the collateral is only the effect of provisional seizure and the same order of priority, it is an act detrimental to other creditors by itself.
Article 406 of the Civil Act
Seoul Guarantee Insurance Co., Ltd. (Attorney Jeong Jae-cheon, Counsel for defendant-appellee)
Defendant (Law Firm Pool, Attorney Lee Dong-soo, Counsel for the defendant-appellant)
Daegu District Court Decision 2009Na10131, 10148 Decided January 28, 2010
The judgment of the court below is reversed, and the case is remanded to Daegu District Court Panel Division.
We examine the grounds of appeal.
In light of the evidence adopted in the judgment below, the court below acknowledged that the plaintiff and the non-party 1, the non-party 2, and the non-party 3, etc. have a claim for reimbursement against the non-party 1, and for the preservation thereof, the record was completed upon the decision of provisional seizure on the real estate in this case owned by the non-party 1 on July 27, 2006. The non-party 1 entered into a mortgage contract with the defendant on August 1, 2006 and completed the registration of establishment of mortgage over the real estate in this case with the defendant on August 1, 2006. The non-party 2, the non-party 3, the maximum debt amount of the plaintiff 1,04,000 won was completed, and the provisional seizure procedure for the real estate in this case was in progress and distributed in proportion to the amount to be distributed in proportion to the amount of the claim in this case on February 22, 2008. Thus, the court below rejected the plaintiff's claim as the non-party 1 and the non-party 1's general creditor's claim.
However, an act detrimental to a creditor who is the object of creditor's right of revocation refers to an act that causes an obligor to be placed in excess of his/her obligation or to be placed in excess of his/her obligation by reducing active property or increasing small property. Since an obligor's act of setting up a collateral on his/her own real estate for another person without any obligation to cause a decrease in the obligor's whole property as much as the value of the security on that real estate has been reduced, even though the collateral is only effective with provisional attachment by the creditor, it can be deemed as an act detrimental to other creditors by itself.
Therefore, the judgment of the court below that the establishment of the right to collateral security in this case cannot be seen as impairing the plaintiff is erroneous in the misapprehension of legal principles as to the intentional harm to the act in fraudulent act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.
Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)