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1. The plaintiff's claim is dismissed.
2. As to the claim of denial between the above parties in this Court.
Reasons
1. Basic facts
A. On September 28, 2016, B filed an application for bankruptcy and exemption with the court below 2016Ha162, and the court below declared bankruptcy with the B on January 19, 2017, and on the same day, the Defendant was appointed as the trustee in bankruptcy.
B. On May 11, 2012, B concluded a mortgage agreement with the Plaintiff regarding the Plaintiff, Gangnam-si D (hereinafter “instant real estate”) with the maximum debt amount of KRW 30 million,00,000,000, and completed the mortgage registration (hereinafter “instant mortgage”). On the same day, B concluded a mortgage agreement with the Plaintiff on the same day.
C. The registration of the establishment of the instant right to collateral security was cancelled in the process of the instant court F and G (Dual) real estate auction, which was in progress with respect to the instant real estate. On March 9, 2017, the Plaintiff was distributed KRW 18,420,347 based on the instant right to collateral security.
The Defendant filed a claim against the Plaintiff for avoidance as the court 2018, regarding the instant mortgage contract.
On December 21, 2018, the lower court recognized that the creation of the instant collateral security right against the Plaintiff, one of the creditors, in excess of the debt, constituted an act subject to denial under Article 391 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”), and ordered the Plaintiff to pay the said dividends and damages for delay based on the instant collateral security (hereinafter “instant decision”) to the Defendant as compensation for damages for restitution by denial (hereinafter “instant decision”).
The above decision was served on the Plaintiff on December 28, 2018.
[Ground of recognition] Facts without dispute, entry of evidence A1 to 3, purport of the whole pleadings
2. The Plaintiff asserted that the establishment of the instant right to collateral security was not prejudicial to the bankruptcy creditor, because it exceeded the value of the instant real estate at the time of establishing the instant right to collateral security, and thus, it was not prejudicial to B at the time of establishing the instant right to collateral security. In addition, the Plaintiff lent KRW 30 million to B at the time of