Whether consent to the cancellation of the right to collateral security is required or not.

There is no ground to ensure the effectiveness of the judgment of revocation of fraudulent act by giving the Plaintiff, the creditor of the fraudulent act, the creditor of the fraudulent act, the right to be reimbursed in preference to the defendant's Republic of Korea.

2017Gahap100261 Cancellation of the right to collateral security

A quasi-O loan limited company

Korea

2017.09.01

2017.09.22

1. The contract to establish a right to collateral security concluded on March 15, 2016 between Defendant KimO, Defendant JejuO, and ChoO on each real estate listed in the separate sheet shall be revoked.

2. Defendant KimOO and Defendant OOO shall implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the OO branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch of the O branch on March 16, 2016.

3. The plaintiff's primary claim and conjunctive claim against the defendant in Korea are all dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant KimO, and principalO shall be borne by Defendant KimO, and principalO, and the part arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Plaintiff.

Cheong-gu Office

○ Claim against Defendant KimO or KO: Order Nos. 1, 2, 1, 2, 2, and 2, around

○ Claim against Defendant Republic of Korea: primary and conjunctively, Defendant Republic of Korea expressed its intention of acceptance to the Plaintiff regarding the cancellation of the registration of the seizure of mortgage-backed claims, KimOO's shares, which was completed on August 24, 2016 by OO branch office of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch of O branch.

1. Basic facts

A. The plaintiff's establishment of a claim against the plaintiff's assistant director

1) An OO mutual savings bank (hereinafter referred to as the "OO mutual savings bank") has a claim against UO to pay the principal and interest of loans to UO.S. The O.S. mutual savings bank has jointly and severally guaranteed the obligation to pay the principal and interest of loans to UO’s O mutual savings bank. O mutual savings bank filed a lawsuit against OO, OOO, and OO under OO branch support 2008da16948. On August 28, 2009, the above court rendered a judgment to jointly and severally notify O mutual savings bank that 173,748,118 won and 172,427,747 won should be paid at the rate of 21.5% per annum from July 2, 2009 to the date of full payment, and the above judgment became final and conclusive around that time.

2) On May 23, 2013, the Plaintiff acquired claims against MaO and MaOO of an O mutual savings bank, and notified MaO and MaO of the assignment of claims.

3) Extraordinary transferred total of KRW 531,023,00 over 244 times from October 25, 201 to November 22, 2013 to the national bank account of Subdivision, one’s mother, who is one’s own mother, as the mother of Subdivision.

4) The Plaintiff filed a lawsuit against OOO branch of the O district court for revocation of fraudulent act under the O branch of the O branch of the O branch of the O branch of the O branch of the 74025, and the said court revoked the gift agreement between OO and MaO branch of the 100 million won between November 29, 2011 and October 26, 2012, and issued a judgment that the OO shall pay to the Plaintiff 10 million won with 5% interest per annum from the day after the date this ruling became final to the day of complete payment, and the above judgment became final and conclusive on September 6, 2016.

(b) A disposal of the property of an early directors;

1) On March 15, 2016, the Conciliation Division concluded a mortgage agreement on the instant real estate owned by Defendant KimO, Defendant JejuO, and one’s own possession with the registry office for each of the OO branch offices for establishing the mortgage (hereinafter “instant disposition”). On March 16, 2016, each of the OO branch offices for establishing the mortgage registration of KRW 480,000,000 (hereinafter “instant disposition”).

2) The head of the OPO under Defendant Republic of Korea held national tax claims, such as capital gains tax in arrears, against Defendant KimO from August 31, 2012 to January 20, 2015. However, on August 11, 2016, among the secured claims of the above secured mortgage, the amount of shares of Defendant KimO was seized in accordance with the National Tax Collection Act. On August 24, 2016, the head of OO branch office of OO branch office of OO branch office of the O6688 of the instant real estate was completed additional registration.

3) The right to collateral security established on the instant real estate at the time of the instant disposition is indicated below.

Grounds for Recognition

○ Defendant KimO or KO: Judgment by service (Article 208(3)3 of the Civil Procedure Act)

○ Defendant Republic of Korea: Facts without dispute, Gap 1, 2, Eul 1, 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings.

2. Summary of the parties' arguments;

A. The plaintiff's assertion

1) The primary claim

A) Since, in excess of the debt, the registration of the establishment of a mortgage over the instant real estate was completed against Defendant KimO and Defendant OO, the instant disposition by OO constitutes a fraudulent act against the Plaintiff. Therefore, the mortgage agreement concluded on March 15, 2016 between Defendant KimO, Defendant OO, and OOO as to the instant real estate should be revoked as a fraudulent act. As a result, Defendant KimO, and Defendant OO was obligated to implement the procedure for registration of the cancellation of the registration of the establishment of a mortgage completed on March 16, 2016 by OO branch offices of OO branch offices of O branch offices of O branch offices of O branch offices of O branch offices of O branch offices of O branch offices of 16464 with respect to the instant real estate.

B) Defendant Republic of Korea completed the additional registration of seizure on Defendant KimO’s shares among the secured claims regarding the above secured claims in the registration of the establishment of a new mortgage. Since the registration of the establishment of a new mortgage should be cancelled, Defendant Republic of Korea should indicate its consent on the registration of the cancellation of the above seizure registration.

2) Preliminary Claim

Even if it was not in excess of the debt, the registration of the establishment of a neighboring mortgage on the instant real estate has been completed in the manner that the Plaintiff and the Defendant MOO bears false debt in order to avoid compulsory execution while proceeding with the Plaintiff. Therefore, the registration of the establishment of a neighboring mortgage on the instant real estate should be cancelled because there is no secured debt, and the registration of the seizure of the shares of the Defendant KimO out of the secured mortgage claim in the Republic of Korea should also be cancelled.

B. Defendant Republic of Korea’s assertion

1) With respect to the Plaintiff’s primary claim, it is difficult to believe that the claim against EO against EO against EO is submitted only within the construction contract, and the claim against EO against EO is insufficient to believe the claim amounting to KRW 303,00,000 as it is. Therefore, if EO’s claim against EO for the construction cost is excluded from EO’s small property, the EO did not constitute insolvent at the time of the instant disposition. Furthermore, even if the instant disposition constitutes fraudulent act, the Defendant Republic of Korea did not know that the instant disposition constitutes a fraudulent act detrimental to the Plaintiff’s claim, thereby constituting a bona fide third person.

2) With respect to the Plaintiff’s conjunctive claim, there is no evidence to prove that the registration of the establishment of the establishment of the neighboring real estate in the instant real estate was completed on the ground that the KOO and the Defendant O had assumed false obligations with respect to the Plaintiff’s conjunctive claim.

3. Determination as to the primary claim against Defendant KimO or JejuO

(a)the existence of preserved claims;

1) In principle, a claim that may be protected by the obligee’s right of revocation should have arisen prior to the commission of an act that may be deemed a fraudulent act. However, there is a high probability that the legal relationship, which already serves as the basis of the establishment of a claim, has already occurred at the time of the fraudulent act, and that the claim should be established in the near future in the near future. In fact, where a claim has been established as a result of realizing the probability in the near future, it may be exceptionally subject to the obligee’s right of revocation (see, e.g., Supreme Court Decision 2010Da68084, Jan. 13, 201). In addition, when the obligee exercises the obligee’s right of revocation, the amount of the obligee’s claim includes the interest or delay damages accrued at the time of the conclusion of arguments in the fact-finding court after the fraudulent act (see, e.g., Supreme Court Decision

2) The Plaintiff’s claim for compensation for damages against OO arises only when the judgment became final and conclusive (see, e.g., Supreme Court Decision 98Da46099, Feb. 8, 200). The instant disposition took place on September 6, 2016, which is the final and conclusive date of the judgment revoking fraudulent act. The fact that the instant disposition took place on March 15, 2016, which is prior to the occurrence of the above claim for compensation, is as seen earlier. However, it is reasonable to view that the Plaintiff’s claim for compensation for damages was acquired on May 23, 2013, 2000 KRW 10,000,000, KRW 106,000,000,000, KRW 106,000,000,000,000,000,000,000,000 won.

B. Whether the dispositive act of this case is insolvent of OO at the time of the act

(i)affirmative property;

In full view of the above facts and the purport of the entire argument in Gap 4-8, the real estate in this case was actually the real estate’s active property at the time of the instant disposition, and the market value at the time of the instant disposition seems to be the same as KRW 1,218,735,250, which was the appraiser on October 29, 2016.

2) Petty property

On the other hand, comprehensively taking account of the above facts and the purport of the entire argument in Gap 4, it can be acknowledged that there is a debt to the ChoO as stated below at the time of the instant disposition. Thus, the small property of ChoO is a sum of KRW 1,433,836,560.

As to this, the Plaintiff asserted that the obligation of the OO against the OO livestock cooperative is the aggregate of KRW 1,510,00,000 for the maximum debt amount of the right to collateral security, but the Plaintiff’s assertion that the OO livestock cooperative has a claim exceeding KRW 69,741,420 (A 4-1), the amount claimed while applying for the commencement and seizure of the auction procedure against the instant real estate owned by the OO, is not acceptable, unless there is any evidence to prove that the OO livestock cooperative has a claim exceeding the amount claimed.

In addition, Defendant Republic of Korea asserts that the amount of compensation liability against the Plaintiff should be excluded from the passive property. However, in determining the debtor's insolvency, which is the requirement for the exercise of the right of revocation, it is highly probable that at the time of the fraudulent act, the legal relationship which is the basis of the establishment of the obligation has already been established at the time of the fraudulent act, and that the obligation should be established in the near future, and in the near future, the obligation should also be included in the debtor's passive property (see Supreme Court Decision 2010Da68084, Jan. 13, 201). As seen above, insofar as the amount liability against the Plaintiff is realized and established, it is reasonable to include the amount liability against the Plaintiff, as seen above, in the foregoing, it is reasonable to exclude the amount liability against the OO from the passive property. However, if the authenticity of the disposal document is recognized, it is clear that the Republic of Korea can deny the contents of the statement, and thus, it is not acceptable to accept the content of the Defendant's declaration of intent.

3) Therefore, the status of excess was over the obligation at the time of the instant disposition, and the status of excess by entering into a contract to establish a mortgage on the instant real estate with Defendant KimO, StateOO, and the instant real estate.

It has become worse.

C. Whether the instant disposition constitutes a fraudulent act

1) In order to become a fraudulent act by offering a security to a certain creditor, the requirement is to bring about the reduction in the joint security of other general creditors by allowing the debtor to be in excess of his/her obligation and to obtain preferential reimbursement from the creditor only in comparison with other creditors (see, e.g., Supreme Court Decision 2005Da47106, Feb. 14, 2008).

2) On March 15, 2016, as seen earlier, the effect of reducing the joint security of other general creditors by concluding a mortgage agreement with Defendant KimO or KOOO with respect to the instant real estate in excess of the debt on March 15, 2016. On March 16, 2016, the said agreement resulted in the reduction of the maximum debt amount of KRW 480,000,000 on the ground of the said mortgage agreement. This constitutes fraudulent act in relation to other general creditors, including the Plaintiff, and it is reasonable to view that OO was aware that the shortage of common creditors' joint security is deepened. As such, it is presumed that the intent of OO at the time of the instant disposition is recognized as well as that the beneficiary KimO or KOOOO is also presumed as the beneficiary's bad faith.

(d) Revocation of fraudulent act and reinstatement;

Where the establishment registration of a neighboring real estate completed by a fraudulent act continues to exist until the closing of argument in a lawsuit seeking revocation of a fraudulent act, such restitution shall be made by the method of cancelling the establishment registration of the neighboring real estate, and the fact that a separate collateral established by a fraudulent act was cancelled after the fraudulent act does not affect the method of reinstatement (see, e.g., Supreme Court Decision 2007Da45364, Oct. 11, 2007). As seen earlier, the establishment registration of a collateral agreement on the instant real estate concluded with a defendant KimO or defendant OO on March 15, 2016 should be entirely revoked as a fraudulent act that deepens the shortage of joint collateral. The defendant KimO or JejuOO is obligated to implement the procedure for registration of cancellation of the establishment registration of a collateral in the name of the defendant KimOO, the main owner of the instant real estate established by reinstatement, as well as the plaintiff's claim for cancellation of the establishment registration of a collateral in the name of the main owner and the plaintiff O.

4. Determination on the claim against Defendant Republic of Korea

A. The main claim

1) The revocation of a fraudulent act is effective relatively between the parties to a lawsuit for revocation, and any third party other than the parties is not affected by the revocation of the fraudulent act, barring special circumstances. Since the proviso of Article 406(1) of the Civil Act is protected for subsequent purchaser, etc. who acquired immovable property, etc., subject to a new legal relationship, the mere recognition of the relative effect of revocation of a fraudulent act is to coordinate the interests of the creditor and beneficiary, and third parties, and it is not limited to the subsequent purchaser, etc. of the target real estate that newly performed a legal act on the basis of the act based on the scope of the third party, which does not affect the revocation. A beneficiary’s creditor does not establish a new legal relationship with the beneficiary, but rather from the beneficiary’s creditor who seized or provisionally attached the real estate to secure the claim already held as the beneficiary’s creditor, even if the beneficiary’s creditor is not a person who seized or provisionally attached the real estate for the purpose of securing the claim, it cannot be deemed that the judgment of revocation of a fraudulent act has the effect on the beneficiary’s creditor (see, 2005Da.

2) As seen earlier, the Defendant’s OPO secretary under the Republic of Korea held national tax claims, such as transfer income tax in arrears, against the Defendant KimO from August 31, 2012 to January 20, 2015, and attached the shares of the Defendant KimO out of the secured debt of the above secured mortgage on August 11, 2016 under the National Tax Collection Act. As such, the Defendant Republic of Korea did not have a new legal relationship with the Defendant KimO, the beneficiary, but rather did not have a new legal relationship with the Defendant KimO, the Plaintiff, regardless of whether the Defendant Republic of Korea acted in good faith, to secure the effectiveness of the judgment revoking fraudulent act by granting the Plaintiff a right to preferentially recover the instant real estate to secure the effectiveness of the judgment revoking fraudulent act.

Therefore, the plaintiff's primary claim against the defendant Republic of Korea is without merit.

B. Preliminary Claim

On the other hand, it is difficult to conclude that the establishment registration of a mortgage was completed on the instant real estate because the evidence submitted by the Plaintiff alone was insufficient to conclude that the registration of a mortgage was completed on the instant real estate in order to escape the compulsory execution of the Plaintiff while the Plaintiff is proceeding with the Plaintiff, and that there is no other evidence to prove otherwise. Therefore, the Plaintiff’s preliminary claim against the Defendant in Korea has no merit.

5. Conclusion

The plaintiff's primary claims against the defendant KimO and JejuO are accepted for all reasons, and all claims against the defendant's Republic of Korea are dismissed for all reasons.