[1] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation of a claim which has not yet been established at the time of the fraudulent act

[2] In a case where the representative director of Gap company, a joint guarantor, made a subrogation for the goods payment obligation of Gap company under a credit guarantee agreement concluded with Gap company and sought a revocation of a fraudulent act as to the mortgage agreement concluded with Gap company as a creditor of the Eul company as to real estate owned by the joint guarantor prior to the conclusion of the credit guarantee agreement, the case holding that the above credit guarantee agreement was established on the ground that the former credit guarantee agreement concluded prior to the conclusion of the mortgage agreement and the above representative director's joint and several liability contract were established at the time of the conclusion of the mortgage agreement, and since there was a high probability that the above credit guarantee agreement would have become a preserved claim for the right of revocation since the financial standing of Gap company was aggravated from the time of the conclusion of the mortgage agreement, and there was a high probability that the above credit guarantee agreement would have become a preserved claim for the right

[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code

[1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong1996Sang, 173) Supreme Court Decision 2004Da53173 Delivered on August 19, 2005 (Gong2005Ha, 1498) Supreme Court Decision 2006Da48588 Delivered on May 31, 2007

Korea Credit Guarantee Fund (Law Firm Rolus, Attorneys Kim Jong-myeong et al., Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm Rate, Attorneys Park Jong-young et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2008Na35929 Decided September 17, 2009

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that rejected the plaintiff's claim on the ground that the plaintiff's assertion as a claim against the non-party 1 is a joint and several liability claim under the credit guarantee agreement with the non-party 2 corporation on April 6, 2007, and that at the time of the contract of the mortgage of this case, the non-party 2 corporation did not conclude a credit guarantee agreement with the non-party 2 corporation, and that at the time of the contract of the mortgage of this case, the possibility of concluding the credit guarantee agreement was high, and that there was no assertion or proof.

On the other hand, the court below held that even if the legal relationship, which forms the basis for establishing the plaintiff's claim for compensation against the non-party 1, with the non-party 2 corporation on April 5, 2006, is a joint and several guarantee agreement with the non-party 1 pursuant to the credit guarantee agreement with the non-party 2 corporation on April 5, 2006, the evidence submitted by the plaintiff alone is insufficient to deem that there is a high probability that the plaintiff's claim for compensation against the non-party 1 is established under the above joint and several guarantee agreement in the near future, and there is no other evidence to acknowledge it. Further, the time when the plaintiff's claim for compensation against the non-party 1 was actually established and its possibility was not realized in the near future since two

2. Judgment of the Supreme Court

A. In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of the fraudulent act, there has already been legal relations that form the basis of the establishment of a claim, and there is high probability that the claim is established in the near future. In the near future, where a claim has been established due to its realization in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 95Da27905, Nov. 28, 1995; 2006Da48588, May 31, 2007).

B. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts:

① On April 5, 2006, the Plaintiff entered into a credit guarantee agreement (hereinafter “former credit guarantee agreement”) with Nonparty 2 Co., Ltd. and the said Co., Ltd. to guarantee the payment of the price for goods to be borne by Bosung Agricultural Co., Ltd. (hereinafter “ Bosung Agricultural Co., Ltd.”). On April 6, 2007, the Plaintiff again entered into a credit guarantee agreement with Nonparty 2 Co., Ltd. on April 6, 2007 with the content that guarantees the payment of the price for goods to Bosung Agricultural Co., Ltd., with the guaranteed principal amount of KRW 300 million, guarantee period as of April 5, 2008 (hereinafter “credit guarantee agreement”). Nonparty 1, the representative director of Nonparty 2 Co., Ltd., Ltd., guaranteed the Plaintiff’s joint

② The object of guarantee under the said renewed credit guarantee agreement is each of the goods payment obligations from April 5, 2006 (the date of the former guarantee) to April 4, 2007 (the former payment date) and from April 7, 2007 to the payment date of bills.

③ On April 15, 2008, the Plaintiff subrogated the principal of KRW 300 million to Bosung Agricultural Cooperatives, and a considerable portion of the amount is the product price liability incurred during the warranty period under the former Credit Guarantee Agreement.

④ Article 6(1)4 of the Credit Guarantee Agreement provides that “When any cause for the registration of information on public records arises” shall be the grounds for the occurrence of the right to indemnity in advance.

⑤ Nonparty 2: (a) the interest of KRW 300 million loaned from the Defendant on March 9, 2006 from March 7, 2007 to June 4, 2007; (b) the interest of KRW 400 million borrowed on March 31, 2006 from July 29, 2007 to August 13, 2007; and (c) the interest of KRW 300 million borrowed on April 20, 2006 from April 4, 2007 to September 3, 2007; and (d) thereafter, the interest of KRW 300 million was overdue on several occasions.

(6) On March 12, 2007, the Defendant concluded a mortgage contract of KRW 300 million with respect to the instant real estate owned by Nonparty 1, and completed the registration of establishment of a mortgage near the same day.

7. On May 2, 2007, the non-party 2 corporation did not pay the interest but did not pay national taxes and caused a credit guarantee accident (registration of public record information).

④ The Plaintiff paid KRW 300 million to Bosung Agricultural Co., Ltd. on April 15, 2008, when Nonparty 2 did not pay the price for the goods to Bosung Agricultural Co., Ltd. for the expiration of the warranty period.

C. In light of the above facts in light of the legal principles as seen earlier, the basic legal relations of each credit guarantee agreement of this case are the same. Thus, at the time of entering into the mortgage contract of this case, the former credit guarantee agreement between the plaintiff and the non-party 2 corporation, which is the basis of establishing the plaintiff's claim for indemnity against the non-party 1, and the joint and several guarantee agreement between the non-party 1, was established. The non-party 2 corporation has high probability as to the possibility that financial standing has deteriorated to the extent that it is difficult to pay interest on loans to the defendant from the time immediately before entering into the mortgage contract of this case, and the plaintiff's claim for indemnity was created in the near future from the date of entering into the mortgage contract of this case. In fact, the credit guarantee accident caused by delinquency in national tax on May 2, 2007, which was about 50 days after the date of entering into the mortgage contract of this case, the plaintiff acquired the right

D. Nevertheless, the lower court determined that the former credit guarantee agreement cannot be deemed as a legal relationship that serves as the basis for establishing a preserved claim, and even if so, it cannot be acknowledged that high probability of establishing a claim based on the legal relationship. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a preserved claim and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The Plaintiff’s assertion pointing this out has merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)