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(영문) 부산고등법원 2007. 11. 6. 선고 2006나21620 판결
[사해행위취소][미간행]
Plaintiff

Korea Mutual Savings Bank, Inc.

The Intervenor succeeding the Plaintiff, the appellee

Busan Monmon Mutual Savings Bank (Law Firm Samyang, Attorneys Kim Sung-hoon, Counsel for defendant-appellant)

The Intervenor succeeding the Plaintiff

[Defendant-Appellant] Plaintiff 1 and 3 others (Law Firm Hun-Ga, Attorneys Lee Jong-min et al., Counsel for defendant-appellant)

Defendant, appellant and appellant

Kangdong Hadung et al.

Intervenor joining the Defendant

Gangnam Free Trade Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Cho-Un et al., Counsel for the plaintiff-appellant)

Conclusion of Pleadings

October 9, 2007

The first instance judgment

Busan District Court Decision 2002Gahap18483 Delivered on November 10, 2006

Text

1. The defendant's appeal is dismissed.

2. Article 1 of the judgment of the court of first instance was amended as follows in accordance with the partial reduction of the purport of the claim in the trial of Busan Solomon Mutual Savings Bank, Busan.

A. The sales contract concluded on July 8, 2002 between the defendant and the defendant joining the defendant with respect to each real estate listed in the separate sheet shall be revoked within the limit of KRW 202,495,915.

B. The defendant shall pay to the plaintiff succeeding intervenor, Busan Solomon Mutual Savings Bank, Busan, Inc. 202,495,915 won and 5% interest rate per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. On the basis of an application filed by a part of the succeeding intervenor, Busan Solomon Mutual Savings Bank, Busan, for the succession participation by the Reorganization Financial Corporation:

A. The sales contract concluded on July 8, 2002 between the defendant and the defendant joining the defendant with respect to each real estate listed in the separate sheet shall be revoked within the limit of KRW 383,926,653.

B. The defendant shall pay 383,926,653 won to the intervenor succeeding to the plaintiff, Busan Solomon Mutual Savings Bank and 5% interest rate per annum from the day following the day this decision became final and conclusive to the day of full payment.

4. On the basis of an application by a part of the Intervenor succeeding to the Plaintiff, Busan Solomon Mutual Savings Bank, Busan, for participation in the succession of IMC Co., Ltd. in the trial:

A. The sales contract concluded on July 8, 2002 between the defendant and the defendant joining the defendant with respect to each real estate listed in the separate sheet shall be revoked within the limit of KRW 58,617,608.

B. The defendant shall pay 58,617,608 won to the plaintiff succeeding intervenor, Busan Solomon Co., Ltd. and 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

5. The supplementary participation costs are borne by the Defendant, and the remainder is borne by the Defendant. The supplementary participation costs incurred by the participation in the trial are borne by the Defendant, and the supplementary participation costs incurred by the participation in the trial are borne by the Defendant, and the remainder is borne by the Defendant.

6. Change of Paragraph 2 in the text of the judgment of the court of first instance to Paragraph 3, and correction of Paragraph 1 to add "2. The plaintiff's claim is dismissed" to Paragraph 2.

Purport of claim and appeal

1. Purport of claim

A. The plaintiff succeeding intervenor, Busan Solomon Mutual Savings Bank (hereinafter "the succeeding intervenor bank"): It is identical to the part as stated in Paragraph (2) of this Article (the succeeding intervenor savings bank reduced the scope of revocation of fraudulent act and compensation for value to KRW 202,495,915 from KRW 584,765,828 to KRW 584,765,828).

(b) The Korea Reorganization and Finance Corporation (hereinafter referred to as the "Korea Reorganization and Finance Corporation") for some intervenors succeeding to a bank: The same shall apply as mentioned in paragraph (3) of this Article;

(c) A part of an intervenor succeeding to the succession of a bank by the successor: It shall be as described in paragraph (4) of this Article.

2. Purport of appeal

The judgment of the first instance shall be revoked. All the claims of the succeeding intervenor bank shall be dismissed.

Reasons

1. Basic facts

A. The supplementary intervenor (hereinafter the supplementary intervenor) who is engaged in the freezing and refrigerating storage of agricultural and fishery products was held in custody of the frozen fishery products owned by each debtor stated in the column for "Loan Scambling Table 2" as below, and each of the above debtors was changed to the name of the plaintiff (Scambae Credit Depository Co., Ltd., Dong-dong Mutual Savings and Finance Company, Dong-dong Mutual Savings and Finance Company, Dong-dong Mutual Savings and Finance Company, and Masan Mutual and Finance Company, Ltd., and changed to the current name as it was) as follows: in receiving each money stated in the column for "Loan Scambaon" column from the plaintiff (Scambae-dong Mutual and Finance Company, Dong-dong Mutual and Finance Company, Dong-dong Mutual and Finance Company, and Masan Mutual and Finance Company, the supplementary intervenor

The supplementary intervenor Non-party 1 (as of June 14, 2005) 47,560,53 won (as of June 14, 2005) in the supplementary intervenor Non-party 1’s 95,947,021 won (as of June 14, 2005) (as of June 14, 2005, the supplementary intervenor’s 47,560,553 won (as of June 14, 2005) 58,617,608 won (including interest in arrears) on June 12, 2000, the supplementary intervenor Non-party 9’s 58,617,608 won (as of September 14, 2007) (as of June 24, 2000, the supplementary intervenor Non-party 36,396,396,646,646, June 26, 2005).

B. The supplementary intervenor completed the registration of transfer of ownership to the Defendant on July 8, 2002 with respect to each real estate listed in the separate sheet, which is the only property (hereinafter in this case’s sales contract) as of July 8, 2002 (hereinafter in this case’s sales contract) under the Busan District Court’s Busan District Court’s receipt No. 35054 on July 31, 2002. The registration of transfer of ownership to the Defendant was cancelled on August 9, 2002 with respect to the instant real estate was made on July 2, 2009 by the debtor Jin Industrial Co., Ltd., Ltd., the mortgagee, the new bank, the maximum debt amount of 1.3 billion won, and the registration of the establishment of chonsegwon was cancelled on July 22, 2002 with the registry office’s receipt of the lease deposit amount of KRW 3630 on July 22, 200, Nonparty 36,2008.

C. On July 22, 2005, the succeeding intervenor bank received the full transfer of the Plaintiff’s contractual status (property, debt, etc.) under the business suspension order by the Financial Supervisory Commission, and on the same day, notified Nonparty 9 on October 10, 2005 after transferring the entire claim against Nonparty 9 to the succeeding intervenor. On June 30, 2006, the succeeding intervenor notified Nonparty 1 of the above assignment of the above assignment of the claim. On June 30, 2006, the succeeding intervenor held only the above assignment of the claim against Nonparty 1 and the principal amount 145,63,640 won among the above claim against Nonparty 3 and the debt incidental thereto (if the principal and incidental debt are added up as of June 14, 2005, the principal and incidental debt are 240,419,079 won) as of July 12, 206, and held it as of June 36, 2005, the principal and interest of the claim against Nonparty 36.

【In the absence of dispute over a part of the grounds for recognition, Gap’s evidence Nos. 1, 2, 3, 6 (including each number), Gap’s evidence No. 7 through 10, Gap’s evidence No. 15-1 through 8, Gap’s evidence No. 17-17, 74, Gap’s evidence No. 18-1, 2, and 19, and the purport of the whole pleadings

2. The assertion and judgment

A. Determination as to the existence of a preserved claim

(1) Establishment of obligation to pay deposit

Article 11 of the Commercial Act provides that "the assistant intervenor runs the freezing and refrigerating storage business of agricultural and fishery products on behalf of the assistant intervenor." As such, although the assistant intervenor's act of debt guarantee to be borne by the assistant intervenor does not naturally fall under the scope of his business, it shall be determined abstractly according to the objective nature of the act regardless of the subjective intent of the manager at the time of the act of the assistant's act. As seen above, the joint and several surety contract of this case guarantees the loan obligations of the non-party 1, 9, and 3, a fishery products distributor who stores freezing fishery products in the assistant intervenor, and thus, it cannot be deemed that the assistant intervenor's business relationship with the non-party 1 is unrelated to the business of the assistant intervenor. Thus, the assistant intervenor's manager has legitimate authority to conclude the joint and several surety contract of this case. Thus, the assistant intervenor's principal and interest of loan of 202,495,975 won (the assistant intervenor's 196.46.65, 2975, 29075).65

(2) Determination as to the defense, etc. of the defendant and the supplementary intervenor

(A) Even if the Plaintiff’s joint and several surety (hereinafter “Defendant, etc.”) was found to have no effect on the part of Nonparty 2’s agent, the Plaintiff merely lent money to Nonparty 2’s manager’s breach of trust within the scope of the right of representation, and the Plaintiff was not aware of the fact that there was no reason to reduce joint and several surety charges for the Plaintiff’s owner, and the Intervenor was unaware of the fact that there was no reason to believe that there was an abuse of the Plaintiff’s right of representation on the part of Nonparty 2’s owner of the above joint and several surety, and that there was no reason to believe that there was an abuse of the Plaintiff’s right of representation on the part of Nonparty 1’s owner of the above joint and several surety, and that there was no reason to believe that there was an abuse of the Plaintiff’s right of representation on the part of Nonparty 2’s owner of the above joint and several surety, and that there was no reason to recognize that there was no difference between the Plaintiff’s employee’s separate and several surety and the Plaintiff’s separate surety 2’s respective evidence.

(B) In addition, according to Article 393 of the Commercial Act, “Defendant, etc.” requires a resolution of the board of directors to dispose of and transfer important assets of a corporation, borrow large assets, appoint and dismiss a manager, etc. However, there was no valid resolution of the board of directors of the Intervenor regarding the instant joint and several surety contract which falls under the loan of large-scale assets. The Plaintiff, a financial institution specializing in the same business as the above joint and several surety contract, was aware of or could have known such fact. Thus, even if the representative director of the corporation (a commercial employee, such as manager, etc., acts for the representative director) did not go through the resolution of the board of directors, the resolution of the board of directors is merely an internal decision-making of the company, and even if the other party to the transaction knew or could not have known that the other party to the transaction was not aware of or could not have known that the other party to the contract was not aware of the fact that the Plaintiff, as Nonparty 1’s separate evidence No. 2 and evidence No. 5-2, each of the above evidence No. 1 and evidence No.

(C) Lastly, the liability based on the instant joint and several sureties contract should be interpreted limited by comprehensively taking into account the balance with the consideration acquired by the Intervenor for the said joint and several sureties within the scope related to the Intervenor’s work, the reasonable intent of the parties, etc., and thus, the Intervenor cannot be held liable for the liability based on the instant joint and several sureties contract against the Intervenor who fulfilled his/her duty as a fishery product manager. However, the aforementioned circumstance alone alone alone does not allow the Defendant, etc. to exempt or limit his/her liability for the joint and several sureties

(3) Sub-determination

Thus, the plaintiff's joint and several guarantee claim against the supplementary intervenor arising from the joint and several guarantee contract of this case can be deemed as the preserved claim of this case.

B. Determination on the claim for revocation of fraudulent act

(1) The establishment of fraudulent act

Around July 202, the time when the registration of ownership transfer of the instant real estate was made to the Defendant, the Intervenor was in excess of KRW 9.7 billion with the Defendant, and there is no dispute between the parties, and evidence Nos. 10, 12, and 16, evidence No. 17-37, evidence No. 21-21, evidence Nos. 1, 11, 43 through 47, 57, 59, and 65, and the overall purport of the pleadings is as follows: (a) the Intervenor owned the Defendant’s shares of KRW 41.7%; (b) the Nonparty 8 and Nonparty 4 were in excess of KRW 21.7% of the Defendant’s shares; and (c) the Defendant was in excess of KRW 45% of the Plaintiff’s shares, including the Plaintiff’s representative director’s shares, and (d) the Nonparty 5-25% of the Plaintiff’s shares were in excess of KRW 45% of the Plaintiff’s shares.

(2) Determination on the Defendant’s defense

(A) First of all, the “Defendant, etc.” asserts that, at the time of the sale of the instant real estate, the auxiliary participant’s debt amounting to KRW 200 million in the amount of loans borrowed from the Korea Housing Bank, KRW 150 million in the loans borrowed from the Korea Housing Bank, KRW 100 million in the amount of loans borrowed from the Korea Housing Bank, KRW 100 million in the amount of loans borrowed from the Korea Housing Bank, KRW 6.9 billion in the amount of the proceeds from the sale of the instant real estate and there is no change in the Intervenor’s total assets. Thus, the instant sales contract still constitutes a fraudulent act as long as it does not objectively require subjective requirements, such as the intention to commit fraud, and it is difficult for the obligor to sell and consume the real estate, which is the only property of the Plaintiff, and then the sale of the real estate to the creditor of the said money is not deemed a fraudulent act. Accordingly, the sales contract should be reasonable in consideration of the Intervenor’s right to preferential reimbursement.

(나) ‘피고 등’은 또한, 보조참가인의 이 사건 매매계약 체결이 객관적으로 사해행위에 해당한다 하더라도, 보조참가인은 막대한 부채를 해소하기 위하여 수년전부터 이 사건 부동산을 매각하려고 노력하였으며, 가락동 수산물시장 상인들이 소액주주로 경영 전반에 참여하는 피고로서는 냉동창고를 보유할 필요가 있어 이를 물색하던 중 나진산업의 주선으로 정당하게 이 사건 매매계약이 체결되었고, ‘피고 등’은 이 사건 매매계약이 체결된 이후인 2002년 7월 중순경에 이르러 소외 2가 회사에 출근하지 아니하여 그 경위를 조사하던 중 2002. 7. 22.경 비로소 소외 2의 배임적 대리행위에 의한 연대보증사실을 알게 된 것이므로, 위 매매계약은 위와 같은 보조참가인의 자구책과 피고의 사업상 필요에 의해 이루어진 것일 뿐 아니라, 보조참가인은 위 매각대금으로 당시 자신이 알고 있던 주요 채권자들에 대한 변제를 모두 이행하였으므로, 위 매매계약 당시 보조참가인에게는 사해의사가 없었고, 피고 또한 선의의 수익자에 해당된다고 항변하므로 살피건대, 을 제5 내지 7호증, 을 제21호증의 60, 65, 66, 67, 70의 각 기재에 의하면, ‘피고 등’은 2002년 7월 이전부터 이 사건 부동산 매매를 위하여 감정을 의뢰하고, 피고의 관계자가 보조참가인을 방문하거나 특수관계법인 해산에 따른 세무상담을 받기도 하였으며, 피고가 이사회를 개최하여 매매가격에 대하여 논의한 사실이 인정되나, 앞서 살펴 본 이 사건 부동산의 매각경위, 피고와 보조참가인의 관계 및 이 사건 부동산의 매매계약이 2002. 7. 8. 체결되었다는 ‘피고 등’의 주장에 강한 의심이 드는 점[갑 제17호증의 67 내지72, 을 제21호증의 24, 57, 58, 59, 65, 66의 각 기재에 변론 전체의 취지를 보태어 보면, 이 사건 부동산 매매와 관련한 소외 5, 4 등에 대한 고소사건 수사과정에서 소외 2는 보조참가인의 이사였음에도 불구하고 보조참가인이 피고에게 이 사건 부동산을 매도하기 위해 시가감정을 하는 등 매매를 추진 중인 점을 알고 있었을 뿐 이 사건 매매계약 체결사실을 알지 못했고(이 점에 관하여 ‘피고 등’은 소외 2 없이도 이사회 정족수가 충족되고 회사 직원들의 동요를 막기 위해 소외 2에게 이사회소집통지를 하지 않는 등 동인에게 이 사건 매매계약 체결사실을 알리지 않았다고 하나, ‘피고 등’의 주장에 의할 때 소외 2에 의한 이 사건 연대보증계약 체결사실이 발각되지도 않은 상황에서 이 사건 부동산을 직접 관리하고 보조참가인의 업무를 전반적으로 집행하던 소외 2에게 위 매매계약 체결사실을 알리지 않았다는 것은 쉽사리 수긍할 수 없다), 법인인감은 소외 2 본인만이 2002. 7. 16.까지 관리하고 있었는데 위 날짜이전에 매매계약서에 법인인감을 날인한 사실이 없다고 진술하고 있고, 보조참가인의 경리담당자들도 위 계약 일시에 계약금을 수령하여 금전장부를 정리한 것이 아니라 2002. 8. 9. 본사로부터 매매계약관련 서류가 한꺼번에 넘어와 그 때서야 장부를 정리할 수 있었다고 진술하고 있으며, 매매계약서를 직접 작성한 보조참가인측 관계자와 피고측 관계자는 매매계약서 작성 과정에 대하여 서로 다른 진술을 하고 있는데다가, 이 사건 매매계약의 계약금으로 지급되었다는 5,000만 원권 수표의 발행일자가 2002. 8. 3.이며 그 결제일자가 잔금지급일자와 동일한 2002. 8. 9.인 사실, 피고 경리담당자가 위 수표의 부표 중 발행일자란의 “7월”을 “8월”로 고쳤으며, 교부처란에 기재되어 있던 어떤 글자를 칼로 긁어 지운 후 그 위에 “7/8 발행”이라고 기재한 사실(계약금은 특별한 사정이 없는 한 계약 당시 교부되는 것이 거래의 관행인데, 2002. 7. 8. 매매계약을 체결하면서 약 한달 뒤의 시점을 발행일자로 한 선일자수표를 계약금으로 지급하여야 할 특별한 사정이 있었음에 관한 피고의 입증이 부족하기도 하다)을 인정할 수 있다] 등에 비추어 위 인정사실만으로는 이 사건 매매계약 당시 보조참가인이 소외 2의 원고 등 금융기관들에 대한 연대보증사실을 알지 못하는 등 보조참가인에게 사해의사가 없었다거나 피고에 대한 악의의 추정을 뒤집어 피고가 선의로 이 사건 매매계약을 체결하였다고 인정하기에 부족하고, 이에 부합하는 듯한 당심 증인 소외 10의 증언 등의 증거는 믿기 어려우므로, ‘피고 등’의 위 항변은 모두 이유 없다.

(3) Sub-determination

Therefore, the instant sales contract concluded between the Defendant, etc. should be revoked as a fraudulent act.

C. Determination on restitution claims

According to the facts established above, the defendant revoked the registration of establishment of a new bank, which was established on August 9, 200 on the real estate of this case on August 9, 202 by paying out one billion won as collateral obligation. On August 19, 2002 and September 3, 2002, the defendant revoked the registration of establishment of a right to lease on a deposit basis with 30 million won as collateral, and the registration of establishment of a right to lease on a deposit basis with 30 million won as collateral for the non-party 6's deposit money, 30 million won as collateral for the non-party 6's deposit. In such case, the defendant's revocation of fraudulent act and ordered the defendant to recover the real estate of this case to the non-party 60 billion won as collateral for general creditors, and thus, it would result in a violation of fairness by ordering the defendant to recover the portion that was not established as collateral for the above real estate of this case to the extent of 600 billion won or less as collateral value of the above real estate of this case.

3. Conclusion

Therefore, the sales contract concluded on July 8, 2002 between the supplementary intervenor and the defendant with respect to the real estate of this case shall be revoked within the limit of 645,040,176 won (the order shall be separately indicated by the succeeding intervenor) and the defendant shall be restored to its original state. The defendant shall pay to the succeeding intervenor bank 202,495,915 won, 382,926,653 won to the succeeding intervenor, 58,617,608 won to the succeeding intervenor, and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when the judgment became final and conclusive to the day when full payment is complete. Accordingly, upon accepting the claim from the succeeding intervenor bank, the part of the judgment of the court of first instance against the succeeding intervenor bank is justifiable, and the defendant's appeal shall be dismissed, and each of the claims of the succeeding intervenor and the company of this case shall be accepted, and the decision of the first instance shall be dismissed as the plaintiff's second order of this case.

[Attachment List omitted]

Judges Kim Jong-ju (Presiding Judge)

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관련문헌

- 윤병철 채권자취소소송에서 가액배상의 상대방 경기법조 16호 / 수원지방변호사회 2009

본문참조조문

- 상법 제11조

- 상법 제393조

원심판결

- 부산지방법원 2006. 11. 10. 선고 2002가합18483 판결