Plaintiff (Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)

Defendant (Attorney Gyeong-soo, Counsel for defendant-appellant)

March 8, 2012

Seoul Western District Court Decision 2010Da36042 Decided October 25, 2011

1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

In the first place, the defendant will implement the procedure for cancelling the registration of cancellation of ownership transfer (hereinafter "each of the of the of the instant registrations of transfer of ownership") completed on August 18, 2009 by the Suwon District Court, Leecheon District Court, Leecheon District Court, Leecheon District Court, Lee 386666, which completed on August 18, 2009 and completed on August 18, 2009 as the receipt of No. 38667, with respect to the real estate listed in paragraph (3) of the attached Table, and completed on August 18, 2009 as to each of the instant registrations of transfer of ownership (hereinafter "each of the instant registrations of transfer of ownership").

Preliminaryly, with respect to each real estate listed in the separate sheet (hereinafter “each real estate of this case”) between Nonparty 1 and the Defendant, the agreement on transfer and takeover of each ownership transfer entered into on July 16, 2009 shall be revoked, and the Defendant shall implement the procedure for cancellation registration of each ownership transfer registration of this case to the Plaintiff.

2. Purport of appeal

The decision is as follows (the plaintiff primarily claimed the cancellation registration of each ownership transfer registration of this case on the ground of false conspiracy, the cancellation of fraudulent act and restitution to the original state, and the court of first instance dismissed the main claim and rendered a judgment accepting the conjunctive claim, and only the conjunctive claim is the scope of judgment of party members).

1. Basic facts

A. Plaintiff’s claim against Nonparty 1

On July 16, 2009, the Plaintiff had a claim of KRW 310,00,000 against Nonparty 1.

B. Details of the acquisition and disposition of Nonparty 1’s right to purchase each of the instant real property

(1) Around April 6, 2009, Nonparty 1 included the above 20 households (407, 408, 507, 608, 707, 807, 807, 808, 907, 908, 107, 107, 107, 108, 107, 107, 108, 1207, 1208, 1308, 1008, 100, 108, 100, 100, 2005, 100, 100, 100, 100, 1000, 100, 1005, 100, 1005, 100, 1005, 100, 100, 1000, 300.

(2) On July 16, 2009, Nonparty 1 made an agreement to transfer the right to sell each of the instant real property to the Defendant (hereinafter “instant agreement”) and requested for the construction of water mines, and made the Defendant’s registration of transfer of each of the instant ownership in the name of the Defendant on August 18, 2009.

On the other hand, water supply construction was made on August 13, 2009 on the non-party 1 with the non-party 1's request for sale and purchase of the 20 apartment units with the non-party 1's 9 households (No. 408, 508, 608, 708, 108, 1108, 1208, 1307, and 1308), and on the non-party 1's creditor, the non-party 1 had the ownership transfer registration made on August 1, 200 on the non-party 1 with the non-party 6, etc. who was the actual investor of the above 9 households for sale and purchase on the non-party 208's own 99, which was established on the non-party 6 et al., the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 98's husband

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 40, Eul evidence Nos. 1 through 23 (including each number), public bank in the first instance court, and our bank as a result of an order to submit financial transaction information to Korean bank, the fact inquiry conducted by the head of Yeongdeungpo-gu in the first instance court, as a result of an order to submit tax information to the head of Yeongdeungpo-gu in the first instance court, as a result of an order to submit tax information to the head of Yeongdeungpo-gu in the first instance court, the result of the market

2. Whether the fraudulent act is constituted;

A. First, as to whether Nonparty 1 transferred the ownership of each of the instant real estate to the Defendant on July 16, 2009, and thereby, the status of insolvency was established by transferring the ownership of each of the instant real estate to the Defendant. According to each of the above evidence, the fact that Nonparty 1’s property at the time of July 16, 2009, immediately after the transfer of the ownership of the instant ownership, is as follows.

(i)affirmative property;

(1) Yeongdeungpo-gu Seoul Metropolitan Government Seosan-dong 3: 240,000,000 won

(2) The sale right of Yeongdeungpo-gu, Seoul Metropolitan Government ( Address 2 omitted) to three parties (hereinafter referred to as “△△ apartment”): 471,000,000 won.

(3) Eight household units of △ apartment (No. 407, 607, 808, 907, 1107, 1207, 908, 1007, 1007 note 2): 411,128,000 won per each household (51,410,000 won per each household x 8 household)

In determining whether a fraudulent act constitutes a creditor’s fraudulent act subject to revocation, if an obligor’s property is provided as a physical collateral for another obligee’s claim, the portion provided as a physical collateral cannot be deemed a debtor’s property for the general creditors. Therefore, the obligor’s active property should be assessed as the obligor’s property only after deducting the amount of secured debt held by other creditors from the value of the property provided as a physical collateral. In the event a joint mortgage is established on several real estate, the amount of secured debt borne by each real estate shall be deemed the amount divided by the amount of secured debt of the joint mortgage in proportion to the value of each real estate provided as a joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance, barring any special circumstance (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12, 201). Thus, it shall be deemed that the value of each apartment apartment apartment unit’s household at KRW 70,000,00 won deducted the amount of secured claim.

(2) Petty property

① Obligations to the Plaintiff: 310,000,000 won

(2) Obligations to Korea Exchange Bank: 147,000,000 won

③ The obligation owed to Nonparty 7: 18,590,000 won (the obligation owed to Nonparty 7 is similar to the following Nonparty 8 and 6) since Nonparty 1 was the actual investor who purchased 608,00 from Nonparty 1, and Nonparty 1 was the cancellation of the right to collateral security established on the said real estate, the obligation amount is equivalent to the amount of the obligation owed to each household of the above right to collateral security as seen earlier.

④ Obligations to Nonparty 8: 55,770,000 won (=18,590,000 won x 3 households)

⑤ The obligation against Nonparty 6: KRW 92,950,00 (=18,590,000) x 5 households)

6. Obligations against Nonparty 11: 100,000,000

(7) Local taxes in arrears to the Yeongdeungpo-gu Office: 454,330 won.

(8) The duty to return the relocation expenses related to the △△ apartment: 84,000,000 won (the creditor bank corporation)

(9) The obligation to lend intermediate payments related to △△ apartments: KRW 72,807,200 (Creditors, Korean Bank, Ltd.)

(10) The obligation against Nonparty 12: 65,00,000 won (the plaintiff alleged that Nonparty 1 had the obligation to return KRW 130,000,000,000, two times the down payment to Nonparty 12, but it is not deemed that Nonparty 1 had the status of default at the time of the agreement on the transfer of the right to sell the instant case, and therefore, only KRW 65,00,000, the down payment already received was recognized as the obligation amount returned).

B. According to the above facts, even after the non-party 1 transferred the ownership of each real estate of this case to the defendant, it is hard to view that the non-party 1 acquired the ownership of each of the real estate of this case as 1,122,128,000 won + KRW 471,00,000 + KRW 411,128,000 + KRW 4128,000 + KRW 946,571,530 + + KRW 147,000 + KRW 147,000 + KRW 18,590,000 + KRW 5,770,000 + KRW 92,950,000 + KRW 100,000 + KRW 454,30,000 + KRW 300,000 + KRW 830,000 + KRW 7,008,00 each of the claims of this case without any further evidence.

3. Conclusion

Therefore, the plaintiff's conjunctive claim of this case is dismissed for the reason that it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim corresponding to the above revoked part is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Park Jae-ap (Presiding Judge)

1) Meanwhile, in light of the fact that Nonparty 5 and Nonparty 9 had written a written confirmation (No. 2) stating that “the real estate of this case is confirmed as KRW 180,00,000 and sold and arranged it after the transfer of ownership” between Nonparty 2 and the Defendant’s husband, Nonparty 5 and Nonparty 9 on the same day, Nonparty 5 and Nonparty 9 transferred the ownership of each of the instant real estate from Nonparty 1 in lieu of Nonparty 1’s claim for the sales commission against Nonparty 1, it seems that Nonparty 1 and the Defendant had concluded the said delegation of ownership transfer agreement for the convenience of disposition.

2) According to the above facts, at the time of the agreement on the transfer of the ownership of the unit, Nonparty 1 had the right to purchase the unit of Y apartment 9 households (Nos. 408, 508, 608, 708, 108, 1108, 1108, 1208, 1307, and 1308) that are to be transferred to Nonparty 6, etc., but at the time of the agreement on the transfer of the ownership of the unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit of unit.

(3) The above appraisal value is assessed as of August 18, 2009, but it is also deemed as above even around July 16, 2009.