Gyeongnam Bank Co., Ltd. (Attorney Cho Chang-soo, Counsel for the plaintiff-appellant)

Defendant 1 (Attorney Nos. 1 and Round, Counsel for defendant)

Korea War Veterans Co., Ltd. (Law Firm Mawon, Attorney Gangdong-gu, Counsel for defendant-appellant)

Defendant 3 (Defendant 2 of the Supreme Court’s judgment) (Attorney Seo-soo, Counsel for the defendant-appellant)

September 7, 2011

Daegu District Court Decision 2010Kahap866 Decided January 28, 2011

1. The part against Defendant 3 in the judgment of the first instance shall be modified as follows:

A. On January 20, 2010, the assignment of claims between the new broadband Co., Ltd. and Defendant 3 shall be revoked.

B. Of the distribution schedule prepared by the said court on June 23, 2010 with respect to the dividend case No. 2010, 75,849,824 won against Defendant 3 among the distribution schedule prepared by the Daegu District Court, Daegu District Court racing support 2010, and the distribution schedule is corrected by correcting the distribution schedule to the Plaintiff.

2. The plaintiff's appeal against the defendant Korea Holdings Co., Ltd. and the appeal against the defendant 1 and 3 are all dismissed.

3. The total cost of the lawsuit between the plaintiff and the defendant 3 is borne by the above defendant, and the cost of appeal between the plaintiff and the defendant 1 is borne by the above defendant, and the cost of appeal between the plaintiff and the defendant Meat Korea Co.

(1) On January 15, 2010, the agreement on the assignment of claims between Defendant 1 and New Minete Co., Ltd. (hereinafter “New Minete Co., Ltd.”) was revoked. On January 20, 2010, the agreement on the assignment of claims between Defendant 2 and New Minete Co., Ltd. (hereinafter “Defendant Korea”) was revoked, and on January 20, 2010, the agreement on the assignment of claims between Defendant 3 and New Minete Co., Ltd. on January 20, 2010 as to the claim as indicated in the separate sheet No. 3 as indicated in the separate sheet No. 3 as between Defendant 3 is revoked. See Daegu District Court of the Daegu District Court of Venture, Inc., 2010, among the dividend table prepared by the above court on June 23, 2010, the dividend amount of Defendant 1, KRW 50 million, KRW 30 million against Defendant Korea Co., Ltd., Ltd., and both were deleted.

1. The plaintiff;

On January 20, 2010 of the attached list No. 2 between the order No. 1 and the Defendant Korea Communications Agency, the assignment contract for the claim as of January 20, 2010 between the order No. 1 and Defendant Korea Communications Agency is revoked, and the distribution amount of KRW 50 million against Defendant Korea Communications Agency shall be deleted in the distribution schedule prepared by the said court on June 23, 2010, and the distribution schedule shall be corrected to be distributed to the Plaintiff.

2. Defendant 1, 3;

In the judgment of the first instance court, the part against the above Defendants shall be revoked, and all of the plaintiff's claims corresponding to the revocation shall be dismissed.

1. Basic facts

A. Claims against the Plaintiff’s new luminous test;

(1) On June 9, 2008, the Plaintiff loaned a loan to the Plaintiff on June 9, 2009, at the rate of interest of KRW 250,000,000 according to the new general standard interest rate (NP) with the due date fixed on June 9, 2009. ② On November 30, 2009, at the interest rate of KRW 320,000,000 according to the market interest rate (MBP) with the due date fixed on February 28, 2010.

Luxembourg However, from January 4, 2010, the New Minete failed to pay interest on each of the above loans, and the remaining principal and interest on each of the above loans were KRW 576,535,701 as of February 17, 2010, and KRW 351,99,120 as of June 22, 2010 (the Korea Technology Finance Corporation subrogated for KRW 203,568,000 as of March 18, 2010).

B. Claim provisional seizure against the new luminous Tech and assignment of claim to the Defendants of the new luminous Tech

(1) On December 18, 2009, 2009, the Seoul High Court rendered a provisional seizure order against the claim amounting to KRW 47,035,609, the amount claimed in accordance with the U.S. District Court Decision 2009Kadan7319 (hereinafter referred to as the “instant claim for the purchase price of the goods”) against Hyundai U.S.S. vessel, Hyundai High Shipbuilding Co., Ltd. (hereinafter referred to as the “S.S. vessel”). The provisional seizure order against the claim amounting to KRW 50,000,000,000,000 won was imposed on the Hyundai P.S. vessel Co., Ltd. (hereinafter referred to as the “S. vessel”).

B. On January 15, 2010, Luxembourg transferred to Defendant 1 the claim indicated in the attached list No. 100 million out of the instant product price claim, and the notification of the assignment of the claim reaches Hyundai U.S. on the same day. ② On January 20, 2010, the assignment of the claim indicated in the attached list No. 2 out of the instant product price claim reaches Hyundai U.S. vessel; ③ on January 20, 2010, the notification of the assignment of the claim reaches Hyundai U.S. vessel; ③ on January 20, 2010, the assignment of the claim indicated in the attached list No. 3 out of the instant product price claim to Defendant 3, 200 million out of the instant product price claim, and on January 28, 2010, the notification of the assignment of the claim reaches Hyundai U.S. vessel.

(c) Insolvent of a new luminous test;

From January 4, 2010, New Minetech was unable to pay interest on loans to the Plaintiff. On February 28, 2010, the closure of the business, and around the time of transfer of the instant goods payment claim to the Defendants, there was no other active property except the instant goods payment claim, while at the same time, the Defendants had already been in excess of obligations, as they bear loans worth approximately KRW 1.556 billion.6 billion.

D. Deposit and provisional attachment of the plaintiff's claim against the modern American helper

(1) On February 5, 2010, the notice of provisional seizure of claims and assignment of claims mentioned above was served, Hyundai U.S. vessel deposited KRW 282,08,260 out of the instant product price claim as U.S. District Court No. 482, U.S.C. 2010 based on Articles 291 and 248(1) of the Civil Execution Act and the latter part of Article 487 of the Civil Act.

B. The Plaintiff, at the time of Ulsan District Court Decision 2010Kadan895 on February 17, 2010, received a provisional attachment order regarding the claim against the Republic of Korea of the New Maegtech by taking the total amount of KRW 576,535,701 as the claim amount, and the said decision was served on the Republic of Korea on February 19, 2010.

(e) Preparation of distribution schedule and objection to distribution;

(1) On February 19, 2010, when the statement of reasons for the above deposit was submitted, the Daegu District Court of the District Court of the Republic of Korea opened the distribution procedure under the 2010 Tagi-Ma71, which is the executing court. On June 23, 2010, the court of execution drafted a distribution schedule of allocating KRW 47,035,609 to the Dae-do Machinery, which is the person holding the provisional attachment order, KRW 10 million to the transferee of the claim, KRW 10 million to the defendant 1, who is the assignee of the claim, and KRW 50 million to the defendant Korea Notes, the assignee of the claim, and KRW 75,849,824 to the defendant 3, the assignee of the claim, respectively.

The Plaintiff appeared on the date of distribution, and raised an objection to the entire amount of distribution against the Defendants, and filed a lawsuit of demurrer against distribution on June 29, 2010.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 55 (including paper numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The instant claim for the purchase price of the goods was transferred to the Defendants, which is the only active property between January 15, 2010 and January 20, 2010. At the time, the Defendants received the claim for the purchase price of the goods, as they are sufficiently aware of the financial situation of new broadband as an employee or a customer of new broadband, so the instant contract for the transfer of each of the instant claims should be revoked as a fraudulent act detrimental to the Plaintiff, which is the creditor, and the said restitution should be made by striking all dividends to the Defendants and distributing them to the Plaintiff.

B. The Defendants

(i)Common:

① Each of the instant claims assignment contracts is merely a repayment made by the Defendants based on the nature of the claims held by the Defendants with respect to the new broadband, and does not constitute a fraudulent act since the Defendants in collusion with the new broadband and the Defendants did not have the intent to harm other creditors, and thus, the Defendants merely received the instant claim for the price of goods by exercising their rights with no knowledge of the financial situation of the new broadband, and thus, are bona fide beneficiaries.

Doz. Defendant 1

Of the Plaintiff’s loan claims, ① KRW 250 million on June 9, 2008, was fully repaid with the installment savings termination deposit in the new lighttech on or around January 21, 2010, and ② KRW 330 million on November 30, 2009, the Plaintiff provided that the Plaintiff was subrogated for the obligations of the Handong Industrial Corporation, the principal contractor of the new lighttech, with the said loan, and the said additional loan was invalidated due to the lack of any additional loan, and thus, the Plaintiff’s preservation claim in the instant case does not exist any longer.

【Defendant Korea’s Republic of Korea

The New Mine test transferred to the above defendant the claim stated in the attached Table 2 to be in charge of the collection of the goods to be supplied to receive the claim for the price of the goods of this case in order to continue to supply the goods to Hyundai Smi-Sa vessel. This does not constitute a fraudulent act as an inevitable measure to continuously have the ability to perform the business.

x Defendant 3

Even if the claim assignment contract against Defendant 3 is revoked as a fraudulent act, the above defendant is still in the position of being apportioned as an execution creditor subject to the seizure and collection order regarding the claim for payment of the deposit of this case on February 10, 2010 prior to the commencement of distribution procedure. Thus, the claim for payment of the deposit of this case should be distributed in proportion to the plaintiff's claim for payment of the deposit of this case.

3. Determination

(a)the existence of preserved claims;

As seen earlier, the fact that the New Minetech borrowed from the Plaintiff KRW 250 million on June 9, 2008 and KRW 320 million on November 30, 2009 is identical to that of the Plaintiff. Therefore, barring any special circumstance, it is deemed that there exists the preserved claim of the lawsuit seeking revocation of the fraudulent act of this case.

Defendant 1 asserted that the loans of June 9, 2008 were fully repaid, and on November 30, 2009, the loans of November 30, 2009 lost its validity due to the fulfillment of the cancellation condition of additional loans. Thus, it is not sufficient to acknowledge the assertion by the Non-Party witness of Eul and the Non-Party witness of the current trial alone, and there is no other evidence to acknowledge it. Rather, according to the above quoted evidence and the purport of the whole arguments, the loans of June 9, 2008 were 203,568,000 won, 200,000 won, 46,432,00 won, 200,000 won, 50,000 won, 200,000 won, 20,000,000 won, 36,000,000 won, 20,000,000,000 won, 208,000,00 new loans of 208.

B. The establishment of fraudulent act and whether a bona fide beneficiary is a beneficiary

(1) Defendant 1, 3

Whether an act constitutes a fraudulent act subject to revocation of creditor by inducing or deepening the shortage of common security for general creditors by means of reducing a debtor's liability property, shall be determined based on whether the act ultimately constitutes an act detrimental to the general creditor or not, comprehensively taking into account various circumstances revealed in the act, such as the proportion of the debtor's entire responsible property in the whole responsible property, degree of insolvency, legitimacy of the economic purpose of the juristic act and its realization means, reasonableness of the act in question as well as the degree of awareness of the parties as to the risk of lack of common security, such as the existence of a debtor's collusion between the debtor and the beneficiary, etc. In addition, the act of transferring active property to a part of the creditor may constitute a fraudulent act in relation to another creditor as a matter of principle, unlike the case where the debtor pays the debt to the creditor according to the assignment of the claim, and in such a case, in light of the general judgment criteria as seen above, if the act cannot ultimately be seen as an act detrimental to the general creditor (see, e.g., Supreme Court Decision 2010Da2787, Sept. 27, 20107).

In light of the following circumstances acknowledged by the above quoted facts and the overall purport of the pleading, i.e., (i) New Mine 1 was unable to pay monthly wages to its employees on July 2, 2008 due to financial difficulties even around 208, and (ii) was unable to repay loans to the Plaintiff on November 30, 2009, and (iii) was under continuous financial difficulties, such as obtaining new loans to the Plaintiff on December 30, 209, the Defendants were subject to provisional seizure from Daedo Co.,, Ltd. and Changwon Co.,, Ltd., Ltd., and the Defendants’ new funds from the Defendant Co., Ltd., Ltd., on December 4, 2010 to 200, and the Defendant Co., Ltd., Ltd.’s new funds from the Defendant Co., Ltd., Ltd., and the Defendant Co., Ltd.’s new funds from the Defendant Co., Ltd., Ltd., Ltd.’s 1000 to 2010.

In addition, in light of the relationship between the new luminous and the above Defendants, the funds and property status of the new luminous test, the time when the above Defendants claims occurred and the time when the claims are transferred, etc., the above facts of recognition and the part of the statements of Eul and Eul, Eul, Eul, Eul, and Eul, and the testimony of the non-party witness of the trial party alone are insufficient to reverse the presumption that the assignment contract against the above Defendants constitutes a fraudulent act, and the debtor's intention of damage is presumed, or it is insufficient to recognize that the above Defendants are the bona fide beneficiary, and there is no other evidence to acknowledge the allegations of the above Defendants. Accordingly, this part of the defendants' assertion cannot be accepted.

【Defendant Korea’s Republic of Korea

(5) Since the assignment of claims to the above defendant 2 had the capacity to repay the debt to the above defendant 1, the above quoted evidence and Eul evidence 1 to 5 (including serial number) are considered as follows: ① operating income of new malkes is the price for the goods that are supplied with vessel parts, such as straws on the modern malves, so it is essential to supply the goods to the modern malves in order to enhance the ability to repay the debt of new malves; ② The cost of the new malves in the process of the production and supply of all parts for 00 malves 1 to 0 70 malves 1 to 0 10 malves 1 to 20 malves 1 to 10 malves 1 to 7 malves 1 to 0 malves 1 to 10 malves 2 to 70 malves 1 to 19 malves 2.

Therefore, the plaintiff's assertion against the above defendant on the premise that the assignment contract for the defendant's transfer of claims against the defendant's Korean War is a fraudulent act is without merit.

C. As to the assertion of pro rata distribution by Defendant 3

On February 10, 2010, prior to February 19, 2010, prior to the date of commencement of the distribution procedure by the executing court, Defendant 3’s assertion of proportional distribution, the above quoted evidence and the purport of the whole pleadings can be acknowledged that the above Defendant was served on the Republic of Korea as the garnishee on February 16, 2010 upon receipt of the seizure and collection order regarding the claim for payment of deposit of this case on February 16, 2010, and the Plaintiff was issued a provisional attachment order regarding the above claim for payment of deposit of this case on February 17, 2010 upon receipt of the provisional attachment order regarding the above claim for payment of deposit of this case on February 19, 2010.

However, in order to preserve the debtor's property as joint collateral, the creditor's right of revocation is a system that revokes the fraudulent act between the debtor and the beneficiary and returns property deviating from the debtor's general property to the beneficiary or subsequent purchaser for all creditors. Thus, it would be contrary to the purport of the system that allows the creditor, a beneficiary, to refuse the return of proportional distribution amount would result in protecting the beneficiary who has been repaid for his own claim and disregarding the interests of other creditors. Thus, in case where the beneficiary is the creditor of the debtor, when the beneficiary compensates for the value, the beneficiary would not request the revocation creditor to distribute the proportional distribution amount of his claim out of the total amount of the claim, on the ground that he is one of the creditors who are subject to the revocation of the fraudulent act, or the beneficiary would not refuse the payment of the proportional distribution amount by asserting a set-off of the proportional amount of his claim out of the total amount of claim against the revocation creditor's restitution (see, e.g., Supreme Court Decision 200Da44348, Feb. 27, 2001).

Therefore, the above argument by Defendant 3, which is premised on the fact that the beneficiary of the fraudulent act can receive dividends in proportion to the cancelled creditor in accordance with the status of receiving separate dividends in the revocation litigation procedure, cannot be accepted without further review.

D. Sub-determination

Therefore, on January 15, 2010 regarding the claim indicated in the separate sheet No. 1 between Defendant 1 and new luminous table between Defendant 1 and Defendant 3, the agreement on the assignment of claims and the assignment of claims indicated in the separate sheet No. 3 between Defendant 3 on January 20, 2010 should be revoked as a fraudulent act. As to the dividends case No. 2010, Jun. 23, 2010, the above court should delete the dividend amount of KRW 10 million against Defendant 1 and the dividend amount of KRW 75,849,824 ( KRW 10,000 + KRW 75,849,824) from among the dividend table prepared by the above court on June 23, 2010, the dividend table should be revised to include the dividend amount of KRW 175,849,824 ( KRW 100,000 + KRW 75,849,824).

4. Conclusion

Therefore, all of the plaintiff's claims against the defendant 1 and 3 are justified, and their claims against the defendant 1 and 3 are dismissed as it is without merit. Since the part against the defendant 3 in the judgment of the court of first instance is unfair with some different conclusions, the plaintiff's appeal against this part is accepted and the distribution schedule is revised as above. Among the judgment of the court of first instance, the part against the defendant 1 and 3 and the remaining part against the defendant 1 and 3 are legitimate, so the plaintiff's appeal against the defendant 1 and 3 against the defendant 3 and the appeal against the defendant 1 and 3 are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Hong-Myeon (Presiding Judge)