Korea

Course-based Intervention (Attorney Kim Tae-tae, Counsel for the defendant-appellant)

Cho Jong-sung (Attorney Kim Tae-tae, Counsel for the defendant-appellant)

on March 30, 2004

Gwangju District Court Decision 2002Gahap1025 delivered on June 20, 2003

1. Of the judgment of the court of first instance, the part against the defendant road owner shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The plaintiff's appeal against the defendant's interference and the appeal against the defendant's replacement are dismissed, respectively.

3. The costs of appeal arising between the Plaintiff and the Defendant’s interference are assessed against the Plaintiff, and the costs of appeal arising between the Plaintiff and the Defendant’s replacement are assessed against each of the above Defendant.

1. Claim: With respect to each building listed in the separate sheet No. 1 between Defendant roadside and Co., Ltd., Co., Ltd., Ltd., Co., Ltd. (hereinafter “Co., Ltd.”), the purchase and sale reservation entered into September 25, 2001 with respect to each of the buildings listed in the separate sheet No. 2 between Defendant Gi-Jari Development and Mai-Jari Development, shall be revoked. Defendant Gi-Jari Development completed on September 25, 2001 with respect to each of the buildings listed in the separate sheet No. 1 list No. 32376, Sept. 25, 2001; Defendant Gi-Jari completed on September 25, 2001 with respect to each of the above buildings listed in the separate sheet No. 32377, Sept. 25, 2001; Defendant Gi-Jari Development completed on Sep. 16, 2014>

2. The purport of the Plaintiff’s appeal: The part against the Plaintiff in the judgment of the court of first instance shall be revoked. Each sales contract entered in the purport of the claim regarding the buildings listed in the attached Tables 6 and 9 shall be revoked between the Defendant road and the friendly development. The above Defendant will implement the procedure for registration of cancellation of each transfer of ownership as stated in the purport of the claim that completed with respect to each building listed in the attached Tables 6 and 9.

3. Purport of appeal by the defendant's interference: this provision shall also apply to paragraph (1) of this Article.

4. Purport of appeal by the defendant replacement: Revocation of the part against the defendant replacement in the judgment of the first instance, and the plaintiff's claim corresponding to the revoked part is dismissed.

1. Basic facts

A. On June 20, 1998, Postal Development entered into a contract between the non-party limited liability company and the non-party limited liability company (the Hanhee comprehensive construction road on January 5, 199, and the limited liability company loan comprehensive construction road on December 1, 199; hereinafter “loan Sejong”) to contract for the construction of the Yaknam-gu Construction (hereinafter “the construction of this case”) with the price of KRW 3.6 billion, which is the building of the first underground floor, the size of the nine stories above the ground, the business facilities of the nine stories above the ground, and the building of the neighborhood living facilities.

B. According to the above contract, although the construction work of this case was commenced on October 10, 1998, the construction work of this case was suspended at the completion of the first floor and the first floor slive slive slive slive slive slive slive slive slive slive slives around March 1999, while the non-party slive slive slive slive slive slive slive slive slive slive slive slive slive slive sliveslive slive slive slive slive s

C. From July 199 to January 200, the friendly development entered into a contract between the subcontractor and the subcontractor to sell each of the buildings listed in the separate sheet No. 1 when the instant construction is completed for payment of the construction price, payment in kind, or as a security for the payment of the construction price.

D. As above, upon the request of the sewage supplier who entered into a contract for sale in lots, the defendant road owner, who actually carried out the construction of this case as the representative director Kim Yong-ran, representative director of loan recommendation, and his children, agreed to have the right to claim the transfer of ownership registered in the name of the defendant road owner with respect to each building listed in the separate sheet No. 1, in order to settle the obligation for the construction payment against sewage supplier. Accordingly, the defendant road owner, who entered in the separate sheet No. 1, agreed to have the right to claim the transfer of ownership registered in the name of the defendant road owner with respect to each building listed in the separate sheet No. 1, No. 2001, Sep. 25, 2001, completed the preservation of ownership as to each building listed in the separate sheet No. 1, No. 20099

E. Meanwhile, on the other hand, the defendant Cho Jong-hwan as to each building listed in the separate sheet No. 2 was notarized by a promissory note of KRW 196,50,000 for the reason that it secured the payment of KRW 193,00,000, which was lent to friendly Development on February 12, 1999, and that the payment of KRW 193,000,000 was carried out by the said defendant on the same day with the above defendant, and completed the registration of the right to claim transfer of ownership as to each building listed in the separate sheet No. 2 on September 25, 2001 under the above defendant's name.

F. After that, on the basis of the provisional registration of this case, the defendant road owner completed each registration of ownership transfer (hereinafter each principal registration of this case) stated in the purport of the purchase and sale contract on October 29, 2001 with respect to the buildings listed in [Attachment 1] List No. 9 on November 1, 2001 based on the provisional registration of this case, and on April 16, 2002 as to the buildings listed in [Attachment 1] List No. 6 on April 10, 2002.

G. As of February 23, 200, the loan type case was not paid KRW 2,50,000,000 among the construction cost of the instant case from friendly development. As to each building listed in the separate sheet Nos. 1 and 2, each building listed in the separate sheet Nos. 1 and 2 was the only property for friendly development at the time when the provisional registration of the Defendants’ right to claim ownership transfer and the registration of ownership transfer in the name of Defendant road owner was completed.

H. Meanwhile, as of May 1, 200, the term of payment for the loan-type loan was 1,115,448,80 won, including value-added tax, which is between April 15, 2000 and March 31, 2002, in arrears with 14 won, including value-added tax, and as of May 1, 2002, the sum of the above national taxes and the increased tax amount by 1.2% per month as of May 1, 2002 under Article 22(1) of the National Tax Collection Act was 1,356,417,850, while the loan-type loan was 1,356,417,850, while the loan-type loan-type loan was 1

I. From March 7, 200 to September 10, 201, the head of the tax office of the Jeonju under the Plaintiff attached the amount equivalent to KRW 965,021,970, and the amount equivalent to the sum of KRW 134,54,40, and the amount equivalent to KRW 1,09,566,370, among the above construction cost claims against Defendant Mareliance Development, with the above national tax claims against the type of loan granted four times as preserved claims.

[Grounds for Recognition] The facts without dispute, Gap evidence 1-1 through 15, Gap evidence 2-1 through 4, Gap evidence 4, 5, Gap evidence 6, 7, and 8-1, 2, Gap evidence 9-1, 2, 3, Gap evidence 10-1, 11-2, Eul evidence 12-1 through 4, Eul evidence 2, 3-2, 4-2, 12, 12, 15, 16, 19, Eul evidence 5-1 through 14, 7, 9-2, and 4-2, Eul evidence 12-4, 7, 9-1, 12, 15, 16, 19, and Eul evidence 5-1 through 14, 7, 9, and 9-1, each of the testimony of the first instance court, the testimony of the witness column, the purport of the whole pleadings.

2. Determination as to whether the revocation of each sales contract between the defendant road and the defendant road development, and the lawsuit on the part of the claim for cancellation of the principal registration of this case is legitimate

The obligee's right of revocation shall be exercised by filing a lawsuit within one year from the date on which he becomes aware of the cause of revocation. Since the obligee's right of subrogation under Article 404 of the Civil Act is the right that the obligee can exercise in his own name to preserve his claim, in case the obligee exercises the obligee's right of revocation, the period for filing a lawsuit shall be determined on the basis of the obligor who is the obligee of the right that is the object of subrogation (see Supreme Court Decision 2000Da73049, Dec. 27, 2001). The period for filing a lawsuit shall be determined on the basis of the obligor who is the obligee of the right that is the obligee of the right that is the object of subrogation (see Supreme Court Decision 200Da73049, Nov. 1, 2001). On April 16, 2002, each registration of ownership transfer under the name of the Defendant log on April 10, 2002; on the other hand, on the other hand, the Defendant's obligation to the class 1000 billion.

According to the above facts, it is reasonable to view that the case of loan was aware of the fact that the new development was done by fraudulent act while knowing the fact that the new development was done by the creditor, on the business day during which each sales contract for the buildings listed in the 6, 9 annexed Table 1 between the defendant's conflict of interest and the friendly development, which are the children of the representative director, was concluded. Meanwhile, it is evident in the record that the lawsuit for cancellation of fraudulent act and restitution of the above buildings was filed by expanding the purport of the claim on May 14, 2003, which was one year after the lapse of the lawsuit for restitution, it is obvious that the lawsuit for cancellation of fraudulent act against the plaintiff who subrogated to the loan type was filed after the expiration of the exclusion period, and thus, it is unlawful.

The Plaintiff, based on the above taxation claim against the loan type, seized the claim for the construction cost of the loan for the development of e-mail, and accordingly, sought revocation of e-mail even as the person entitled to seize and collect e-mail development. In this case, the exclusion period should proceed from May 28, 2002 with the date confirmed by the Plaintiff after obtaining a certified copy of the register of the buildings listed in [Attachment 6 and 9] list 1 list, and therefore, the extension of the claim portion of this case is lawful as it was made on May 14, 2003, within one year.

However, there is no assertion or evidence as to the fact that the plaintiff received a collection order in addition to the seizure against the development of the letter of credit, and the fact that the plaintiff is an execution creditor or collection creditor against a monetary claim does not serve as a basis for the third party debtor to seek revocation of a fraudulent act by directly selling the same real estate as in this case without subrogation of the debtor. Therefore, the plaintiff's above assertion is without merit without further examination.

3. Judgment on the merits

(a) Whether the preserved claim exists (the time when the secured claim is concluded);

The Defendants asserted that the provisional registration of this case in the name of Defendant Lane, which was completed in relation to each of the buildings listed in the separate sheet No. 1, and the sales contract between friendly Construction and Sewage Business Operators and Defendant Horse Exchange, which is the basis of provisional registration in the name of Defendant Horse, and the provisional registration in the name of Defendant Horse, are concluded four times from March 7, 200 to September 10, 201 as seen above by the Plaintiff from July 1, 1999 to September 200, prior to acquiring the right to collect delinquent national tax, the Plaintiff’s claim for seizure cannot be the preserved right of this case. Accordingly, the Plaintiff cannot be claimed that the obligee’s right cannot be claimed for the execution of the procedure for registration of cancellation of each of the above provisional registrations. However, the obligee’s right of revocation in this case is the right of obligee to exercise the obligor’s right in his own name in order to preserve his own claim, and thus, the obligee’s right of revocation in this case is not recognized as the obligee’s right to claim 20.

B. Determination as to the claim against the defendant's interference

(1) According to the above-mentioned provisional registration and the developments leading up to the completion of each of the provisional registrations of this case on the ground of the pre-sale agreement of this case and the provisional registration of this case on each of the buildings listed in the separate sheet No. 1, since all of the defendant road and the pre-sale agreement of this case and the provisional registration of this case on each of the above defendant's name were conducted with the consent of the loan type that is the right holder to revoke the fraudulent act, barring any special circumstances, the loan type can not be claimed for cancellation and restitution on the ground that it constitutes a fraudulent act. Therefore, the plaintiff cannot seek cancellation by subrogation of the loan type, and even if the loan type case was provisionally registered in the future of defendant road to be exempted from the disposition of arrears as alleged by the plaintiff, as long as the plaintiff cannot exercise the right of revocation directly as the right holder of the right of revocation for the development of letter, such conclusion does not change merely

(2) On this issue, the Plaintiff asserted that the agreement of the type of loan was null and void without the approval of the general meeting when there is no auditor's approval or audit pursuant to Article 564 (3) of the Commercial Act, since the defendant's interference is a son of the roadside which is the representative director of the type of loan, and the above agreement of the type of loan is an act of self-transaction conducted by the representative director of the board of directors. However, in addition to the statement of No. 7 and the testimony of the witness of the first instance trial in addition to the whole purport of the pleadings, the loan type case is invalid without such approval. However, the above type of loan case is the one de facto acquired on or around Dec. 12, 199, and there is no audit at the time of the contract of this case. Thus, the consent of this case can be deemed to have been based on the intention of the above type of loan type, which can be deemed to have been identical to the approval of the general meeting of members. More than anything else, it is difficult to deem that the above consent of the Plaintiff's assertion is void.

In addition, the plaintiff asserts that the act of the above street is null and void because it is a fraudulent act to promote the personal interest of a third party, not a corporation's interest, as a representative director of the loan proposal, but it constitutes an abuse of power of representation. However, as seen above, the above agreement of the street is for the company's interest, which shall settle the obligation for the construction price to the subcontractor of the loan recommendation, and it cannot be deemed an abuse of power of representation. Therefore,

(3) Therefore, the Plaintiff’s claim for the revocation of fraudulent act and restitution against the Defendant’s interference is without merit.

D. Determination as to the claim against the defendant's replacement

(1) The act of a debtor in excess of his/her obligation to dispose of the real estate, which is his/her sole property, constitutes a fraudulent act against the creditor, barring any special circumstances. Meanwhile, provisional registration to preserve the right to claim ownership transfer registration does not take effect by itself, but if the principal registration is made thereafter, it would result in the creditor's failure to obtain full repayment due to the effect of change of ownership retrospectively at the time of provisional registration, and thus, the act of establishing provisional registration also becomes subject to the creditor's right of revocation (see Supreme Court Decision 74Da334 delivered on February 10, 1975). According to the facts acknowledged above, it is presumed that the act of entering into a pre-contract with the defendant in excess of his/her obligation to purchase and sell each building listed in the separate sheet No. 2, which is his/her own property, is a fraudulent act with the intent to prejudice the creditor's loan type, and the defendant, who is the beneficiary, was aware that at the time of the pre-sale of the above sale.

(2) As to the plaintiff's cancellation of the above purchase and sale reservation and the above provisional registration claim, the above defendant first put in a situation where it is difficult to continue the construction due to the shortage of funds during the execution of the construction of this case, but it is considered that the completion of the construction of this case is a diameter for restoring the ability to repay the debt of 193,00,000 won, and upon requesting the above defendant to pay a loan of 193,00,000 won, the above defendant agreed to pay for each of the buildings listed in the separate sheet No. 2, and accordingly, the above defendant lent 193,00,000 won to friendly Development and then the above 193,000,000 won was lent to Dacheon-dong Office of Law No. 1999, Feb. 12, 199, the above defendant's assertion that the above transfer registration statement of 196,500,000 won was not a new sale sale agreement with the above defendant's non-party 1's new development statement.

(3) In addition, the above defendant alleged that he did not have an intention to harm the creditor at the time of the pre-sale, but the above defendant's assertion is not sufficient to acknowledge the evidence Nos. 3-1 and 2 and the testimony of the witness at the trial of the first instance, and there is no other evidence to acknowledge it. Therefore, the above defendant's assertion is without merit.

4. Conclusion

Therefore, the part of the plaintiff's claim of this case concerning the cancellation of the purchase and sale reservation of this case and the provisional registration of this case against the defendant's interference is dismissed as it is unlawful, and the part concerning the cancellation of each sale contract based on the reservation of this case and the cancellation of the principal registration of this case are dismissed as the lawsuit, and the claim against the defendant's termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of termination of contract

[Attachment]

Judges Jeong Jong-ju (Presiding Judge)