208Gahap9238 Claims, etc.

A

Law Firm Fae, Counsel for the defendant-appellant

Attorney Lee Jong-soo, Counsel for the defendant-appellant

1. Stock company B1;

2. B2 (Attending fifty two years old, Female)

3. B3 (P 45 Years, South Korea)

Defendant 1, 2, and 3 (Attorney Kim Shin-chul, Counsel for defendant-appellant)

4. B4 (P 44 Years, South Korea)

Law Firm Cheong-do, Counsel for the defendant-appellant

Attorney Park Gyeong-soo, Attorney Park Gyeong-soo, Attorney Park Jong-soo

May 14, 2009

June 11, 2009

1. Defendant B1, B2, and B3 jointly and severally pay to the Plaintiff 893,262,475 won and 888,971,608 won with 15% per annum from March 7, 2008 to June 18, 2008, and 20% per annum from the next day to the day of full payment.

2. A. As to the real estate stated in paragraph 1 of the attached Table (Omission) between Defendant B2, B3 and Defendant B4

The sales contract concluded on September 11, 2007 has been revoked, and

B. Defendant B4 shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed on September 12, 2007 by the receipt of No. 30713 on September 12, 2007, with respect to the real estate listed in paragraph (1) of the attached Table (Omission).

3. The plaintiff's remaining claims against the defendant B4 are dismissed.

4. Of the costs of litigation, the part relating to the Plaintiff and Defendant Company B1, B2, and B3 shall be borne by Defendant B1, B2, and B3, and the part relating to the Plaintiff and Defendant B4 between the Plaintiff and Defendant B4 shall be borne by the Plaintiff, and the remainder by Defendant B4 respectively.

5. Paragraph 1 can be provisionally executed.

The sales contract concluded on September 11, 2007 with respect to each real estate listed in the separate sheet (Omission) list between Defendant B2, B3 and Defendant B4 shall be revoked, and Defendant B4 shall implement the procedure for registration of cancellation of ownership transfer registration completed on September 12, 2007 with respect to each real estate listed in the separate sheet (Omission) list with respect to the Plaintiff.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the following facts: Gap evidence 1-1 to 10, Gap evidence 2-1 to 8, Gap evidence 3, 4, Eul evidence 5-1, 2, 3, Eul evidence 1-1, 2, 3, Eul evidence 2-2, Eul evidence 3-1 to 3, and the whole purport of the arguments as a result of the inquiry into the fact to the Young-gu Busan Metropolitan City Office.

(a) Credit guarantees;

1) Upon the request of the Defendant Company B1 (hereinafter referred to as the “Defendant Company”), the Plaintiff entered into a credit guarantee agreement with the Defendant Company by setting the term on November 11, 199 as to the obligation to repay the loans that the Defendant Company would receive from the Bank, with respect to ① the guaranteed principal of KRW 300,000,000, and the term on November 11, 2000. ② June 27, 2001, the guaranteed principal of KRW 680,000,000, and the term on June 27, 2002, the term on June 27, 2002, the Defendant Company received from the Defendant Company the loans of KRW 375,00,000 under the credit guarantee and KRW 80,000,000 under the credit guarantee and KRW 80,000 under the credit guarantee. ② The term on January 11, 200, the guaranteed amount extended to 2006,2008.

2) According to the above credit guarantee agreement, when the Plaintiff fulfilled the guaranteed obligation, the amount and damages for delay shall be repaid at the rate determined by the Plaintiff, and the rate, calculation method, and collection period determined by the Plaintiff shall be paid, and the rate of damages for delay determined by the Plaintiff shall be 15% per annum from the date of subrogation. Meanwhile, Defendant B3 and Defendant B2, who is the representative director of the Defendant Company, and its wife, jointly and severally guaranteed the obligation owed by the Defendant Company to the Plaintiff.

(b) Subrogation;

1) On November 10, 2007, the Defendant Company suffered a credit guarantee accident where the principal and interest of loan were overdue, and the Plaintiff subrogated the Defendant Company’s principal and interest of loan 889,86,208 to the XX bank on March 7, 2008 upon the request of the Bank to implement guarantee obligations.

2) The Plaintiff received reimbursement from the Defendant Company for the total amount of KRW 855,340 on March 7, 2008, KRW 30,200 on March 11, 2008, and KRW 894,60 on March 18, 2008, and KRW 894,60 on March 18, 2008. The fixed damages for delay incurred in relation to the repayment were KRW 457, and KRW 4,290,410 on the penalty. The disposal disposition, etc. by the Defendant B2 and B3 were incurred.

1) With respect to each real estate listed in the separate sheet (Omission), for which a joint ownership transfer registration has been completed in the name of Defendant B2 and B3 (hereinafter referred to as the “real estate of this case”) on September 29, 2003, the establishment registration of a neighboring mortgage consisting of B3 as the obligor YY (hereinafter referred to as “YY”) was completed in the future. On May 25, 2007, with respect to the real estate listed in the separate sheet (Omission) of the real estate of this case (hereinafter referred to as “second real estate”), the establishment registration of a lease on a deposit basis of a contract on October 6, 2006, the establishment registration of a lease on a deposit basis of a lease on a deposit basis of a contract on September 29, 200, the establishment of a lease on a deposit basis of a lease on a deposit basis was made in the name of 40,000,000 won, and the real estate listed in the separate sheet (Omission)(3)(hereinafter referred to as “real property”).

2) On February 14, 200, Defendant B2 and B3 borrowed KRW 300,00,000 from Defendant B4, and paid KRW 250,000,000 on December 7, 2003, Defendant B issued to Defendant B4 a promissory note with a face value of KRW 250,000,000,000 for the remainder of KRW 250,000,00,000, and issued a promissory note with Defendant B3 for the purpose of securing payment. In addition, on the ground of a contract to establish a contract on the same day on December 9, 2003, the establishment registration of a mortgage was completed for the instant real estate with the maximum debt amount of KRW 250,00,000 and KRW 250,000 for the obligor B and Defendant B3.

3) On September 11, 2007, Defendant B2 and B3 concluded a sales contract with Defendant B4 to sell the instant real estate in lieu of the payment of the remainder of the loan. At the time, Defendant B4 agreed to accept the obligation of collateral security and chonsegwon established on the instant real estate.

4) As to the instant real estate on September 12, 2007 pursuant to the above sales contract, Defendant B2 and B3

In the name of Defendant B4, the registration of ownership transfer, such as the purport of the claim, was completed.

5) At the time of the conclusion of the above sales contract, the instant real estate was the only property of Defendant B2 and B3.

2. Determination as to the claim against the defendant company, B2 and B3

According to the above facts, as the principal obligor or joint guarantor of the above credit guarantee agreement, the defendant company, B2, and B3 is jointly and severally liable to pay to the plaintiff a total of 893,262,475 won (88,971,608 won in subrogation) (889,86,208 won in subrogation) + 457 won in advance + penalty of 4,290,410 won in advance + 888,971,608 out of the above amount of 888,971,608, the date of subrogation, which is the date of delivery of a copy of the complaint of this case against the above defendants who were sought by the plaintiff from March 7, 2008 until June 18, 2008, and damages for delay at the rate of 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

3. Determination as to the claim against Defendant B4

(a)the existence of preserved claims;

According to the facts acknowledged earlier, at the time of the conclusion of the instant sales contract, the credit guarantee agreement and joint and several surety agreement that serve as the basis for the Plaintiff’s occurrence of claims against Defendant B2 and B3 were concluded, and the time of the conclusion of the said sales contract is within two months from November 10, 2007, where the Defendant Company did not pay the principal and interest of the loan, and there was a high probability that the Defendant Company’s claim for indemnity was likely to occur based on the above legal relationship in the near future as the financial condition of the Defendant Company has deteriorated. In fact, the possibility was realized due to the bankruptcy of the Defendant Company, and the Plaintiff incurred a claim for indemnity by subrogation for the credit guarantee loan made on March 7, 2008. Accordingly, the Plaintiff’s claim for indemnity against Defendant B2 and B3 can be the preserved claim for obligee’s right

B. Whether the fraudulent act was established

1) An act of an obligor’s sole property by accord and satisfaction to one of the obligees becomes a fraudulent act in relation to other obligees, barring any special circumstances (see, e.g., Supreme Court Decision 2006Da33357, Feb. 14, 2008). Such a legal doctrine ought to be equally applied to cases where a creditor, who has preferential right to payment, receives a payment in lieu of a price exceeding the scope of a claim entitled to preferential repayment, even if he/she

According to the above legal principles and the facts acknowledged earlier, the sale of the instant real estate, which is the only property of Defendant B2 and B3, to Defendant B4, constitutes a fraudulent act with the knowledge that it would prejudice other creditors, including the Plaintiff, and the bad faith of Defendant B4, a beneficiary, is presumed.

2) As to this, Defendant B4 asserts that, at the time of the sale of the instant real estate, Defendant B2 and B3 did not constitute a fraudulent act by selling it to Defendant B4, since the liabilities for collateral security and chonsegwon established on the instant real estate exceed the value of the instant real estate.

If a security right has been established on an object transferred by the debtor, the liability property provided to the joint security of the general creditors out of such object shall be limited to the remainder after deducting the amount of the secured claim. If the amount of the secured claim exceeds the price of the object, the transfer of the object cannot be deemed a fraudulent act. The joint mortgage theory applies to the transferred object.

In the case of the fixed real estate, the amount of the secured debt shall be deemed the amount divided in proportion to the value of each real estate that is the object of joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance (see Supreme Court Decision 2003Da39989, Nov. 13, 2003).

In full view of the evidence as mentioned above and the fact-finding with respect to F.I.D. F. Y. Y. Y. Y. 1: 834,094,800, 2200, 3460, 3404, 3600, 4064, 608, 608, 608, 306, 406, 608, 604, 606, 606, 608, 604, 60, 608, 606, 604, 606, 60, 606, 606, 606, 606, 604, 60, 864, 606, 606, 608, 158, 253, 209, 606, 209, 306, 3060, 6060.

Then, since the amount of secured debt of Defendant B4, which is the 1,22 real estate, is 250,00,00 won or less, which is 250,00 won or more, 281,07,982 won or more (834,094,800 won - 53,086,818), 506,140 won (16,343,460 - 10,8367, 467, 205, or 205, or 3064, 2865, or 406, 207, 305, or 207, 467, 205, or 206, 306, 406, 205, or 207, 306, 406, 205, or 204, 205, 206, 2064, 2546, 2064, 25

C. Sub-decision

Therefore, the sales contract for the first real estate between Defendant B2, B3 and Defendant B4 is revoked as a fraudulent act, and Defendant B4 is obligated to implement the procedure for registration cancellation of ownership transfer registration under Article 2 of the Disposition No. 1 on Real Estate to the Plaintiff due to its restitution.

4. Conclusion

If so, the plaintiff's claim against the defendant company, B2, and B3 and the claim against the defendant B4 within the above recognition scope are justified, and the remaining claim against the defendant B4 is dismissed as it is without merit. It is so decided as per Disposition.

The mediation of judges of the presiding judge

Judge Choi-hee

Judges Park Jong-woo