2014Gaz. 2690 (Lawsuit of Demurrer)

2014 Ghana 11433 (Counterclaim) Revocation of Fraudulent Act

A person shall be appointed.

[Defendant-Appellee]

Korea Housing Finance Corporation

Representative President and △△△△

Law Firm △△, Counsel for defendant-appellant

[Defendant, Appellee]

September 26, 2014

October 24, 2014

1. The plaintiff (the counterclaim defendant)'s main claim is dismissed.

2. The lease contract concluded on January 3, 2013 with respect to the real estate stated in the separate sheet between the Plaintiff (Counterclaim Defendant) and B shall be revoked.

3. The costs of lawsuit shall be borne by the plaintiff (the counterclaim defendant) by aggregating the principal lawsuit and counterclaim.

Main Office: The Seoul Northern District Court 2013 Maz. 5886 Maz. 2014 2014

1. Of the distribution schedule prepared on 16.16, the amount of dividends to the defendant (hereinafter referred to as "defendant") 233,82,416 won;

B KRW 208,822,416, and KRW 00,000 for dividends to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

shall be corrected by correction to the Board.

Counterclaim: The same shall apply to paragraph (2) of this Article.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On March 12, 2013, the Seoul Northern District Court 2013 x 201 x 59 on March 12, 2013, at the request of the Defendant, who is the right to collateral security (hereinafter “the apartment of this case”) with respect to the real estate attached to B (hereinafter “the apartment of this case”).

B. During the above voluntary auction procedure, the execution court: (a) distributed the amount of 234, 163, and 196 won to be actually distributed after deducting the execution cost from the sale price and interest of the apartment in this case; (b) the amount of 340, 780 won in Seoul Special Metropolitan City, Nowon-gu, which is the right holder of the pertinent tax; and (c) the Defendant, who is the senior mortgagee, is the prior mortgagee, the remainder of 233, 822, and 416 won in whole; and

C. On January 16, 2014, the Plaintiff appeared on the date of distribution and raised an objection to KRW 25,00,000 out of the amount of distribution against the Defendant.

[Grounds for Recognition] Unsatisfy, entry of Gap evidence 1 to 4, entry of Eul evidence 4, purport of whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff;

The plaintiff asserts that 25,00,000 won out of the lease deposit should be distributed in preference to the defendant as a tenant of small amount under the Housing Lease Protection Act, and that the defendant's assertion of fraudulent act was not known that the lease contract of this case was a fraudulent act.

(b) the Defendant;

B’s family still maintained the resident registration in the instant apartment, and remitted money in excess of the fixed lease deposit, and the broker of Incheon, which is not at all related to the location of the instant apartment, was mediated by the broker of Incheon. At the time of entering into the instant lease agreement, the Plaintiff was anticipated to commence auction due to the completion of the registration of the establishment of a mortgage and the registration of the seizure in excess of the market price in the instant apartment, and the Plaintiff’s act of leasing the instant apartment does not constitute a small lessee subject to protection because it was false or abused the Housing Lease Protection Act.

Even if it is deemed a small lessee, this case’s lease agreement is an act of setting the right of preferential repayment to one of the creditors and undermining other creditors, and thus, it should be revoked as a fraudulent act.

3. Determination

A. According to the evidence Nos. 7, 7, 2, and 3, and the testimony of the witness C of the apartment of this case, the normal lease deposit at the time of the instant apartment of this case is at least KRW 180,000,000, in excess of the market price at the time, the Defendant’s registration of collateral security, the maximum debt amount of 44,200,000, in excess of the market price, the registration of collateral security, the registration of personal savings bank’s seizure, the registration of the National Health Insurance Corporation’s seizure, and the fact that the instant lease contract was arranged by an individual C among Incheon, and concluded the lease contract at the Plaintiff’s house, other than the office of Incheon, and the fact that B did not transfer his resident registration even after the lease contract.

However, comprehensively taking account of the statements in Gap evidence Nos. 1, 2, 5, and 15 (including branch numbers), witness Eul's testimony, and the purport of the whole pleadings, the plaintiff entered into a lease contract for the lease of the apartment of this case with the term of January 3, 2013 set forth as the lease contract for the lease of this case from Eul, and the term of January 10, 2015, and concluded the lease contract for the lease of this case with Eul for the term of January 9, 209, 90,000 on January 11, 2013, and the remainder payment date of the lease contract for the lease contract for the lease of this case, and the plaintiff entered into the lease contract for the lease of this case with the plaintiff as the actual owner of the apartment of this case and entered into the lease contract for the lease contract for the lease of this case with the plaintiff and the plaintiff's actual owner of the apartment of this case. However, it is doubtful that the plaintiff had no burden on the plaintiff's house rent of this case.

B. The Housing Lease Protection Act recognizes a fraudulent act (1) and grants a kind of statutory security right that can be repaid preferentially to the claims secured by mortgage against the leased house, taxes, etc. Therefore, the debtor's act of setting the lease right under the above provision of the Housing Lease Protection Act is an act of offering collateral in excess of the debtor's obligation and causing a decrease in the debtor's whole property. Therefore, the act of establishing the lease right under Article 8 of the Housing Lease Protection Act is presumed to be an act of fraudulent act, and it is presumed that the debtor's bad faith is presumed to be the case of fraudulent act. (See Supreme Court Decision 203Da5071 delivered on May 13, 2005, Supreme Court Decision 2003Da50771 delivered on June 13, 2005, Supreme Court Decision 2001Da147771 delivered on June 3, 200, 205, 30Da11125 delivered on the Housing Lease Protection Corporation as the only property of the court, 301, 20.

(3) According to the above facts, B entered into the instant lease agreement with the Plaintiff as to the apartment of this case, which is one of its sole property, and entered into the lease agreement of this case with the Plaintiff, and established the right of lease with the right of priority repayment under the Housing Lease Protection Act. Thus, this constitutes a fraudulent act against the Defendant, who is another creditor, due to the act that causes the decrease in the debtor's whole property, and presumed B's bad faith as the debtor, and the plaintiff's bad faith as the tenant is presumed as the tenant. The evidence submitted by the plaintiff alone is insufficient to acknowledge the presumption of bad faith, and there is no other evidence to acknowledge it. Rather, the plaintiff knew that the attachment registration exceeding the market price of the apartment of this case and the establishment registration of a mortgage was completed two cases near the establishment of a mortgage of this case at the time of entering into the instant lease agreement, and the deposit under the instant lease agreement is remarkably smaller than the market price at the time, and the plaintiff's assertion that the above auction procedure for the apartment of this case was conducted after about 2 months after the conclusion of the lease agreement of this case is reasonable.

C. Sub-committee

As seen above, the instant lease agreement constitutes a fraudulent act, and thus, the Plaintiff’s claim on the principal lawsuit premised on the validity of the instant lease agreement is without merit, and the Defendant’s claim on the counterclaim is with merit.

4. Conclusion

Therefore, the plaintiff's main claim is dismissed without reasonable grounds, and the defendant's counterclaim is accepted due to reasonable grounds, and it is so decided as per Disposition.

Judges Kim Gin-soo