Korea Technology Credit Guarantee Fund (Attorney Hwang-soo, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Cho Jong-tae et al., Counsel for the defendant-appellant)

July 18, 2008

Seoul Central District Court Decision 2006Gadan398540 Decided November 28, 2007

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

3. The correction of "No. 4, 2005, Nov. 4, 2005" in Section 2(a) of the order of the court of first instance to "No. 18, 2005," shall be made.

1. Purport of claim

A. On October 18, 2005 (the date of the sales contract was stated on November 4, 2005, when the date of the sales contract was stated on the register, but later, as seen thereafter, the date of the sales contract between the actual Defendants is October 18, 2005, and this seems to be an error) concluded between the Defendants on October 18, 2005.

B. Defendant 2 shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed on December 5, 2005 by the Dongjak-gu Office of Seoul Central District Court on each of the instant real estate by December 5, 2005, pursuant to the receipt No. 52468.

2. Purport of appeal

All parts of the judgment of the first instance are revoked. All of the plaintiff's claims corresponding to the above revocation are dismissed.

1. Basic facts

A. On May 25, 2005, the Plaintiff entered into a credit guarantee agreement with the co-defendant 1 corporation of the first instance trial and the co-defendant 2 and 3 of the first instance trial. The non-party 1 corporation submitted a credit guarantee agreement issued by the Plaintiff to the National Bank of Korea on May 25, 2005 and borrowed KRW 50 million.

B. After that, the non-party 1 corporation did not pay interest on March 1, 2006, and on April 3, 2006, lost the benefit of the time limit for the above loan due to the fact that the non-party 1 corporation did not pay interest on March 1, 2006, the plaintiff subrogated to the above national bank on May 22, 2006 under the credit guarantee agreement.

C. Meanwhile, on October 18, 2005, Defendant 1, a director of Nonparty 1 corporation, entered into a sales contract with Defendant 2 on each of the instant real estate (hereinafter “instant sales contract”) and registered the transfer of ownership in the future of Defendant 2 on December 5, 2005.

D. At the time of the instant sales contract, Defendant 1 did not have any particular positive property other than each of the instant real estate, the market value of which is KRW 510 million, but the small property was in excess of KRW 600 million, even though it was against the Korea Credit Guarantee Fund.

【Ground of recognition】 The fact that there is no dispute over the grounds for recognition, Gap evidence 1 through 10, 14, 19, Eul evidence 5 (including provisional number), the purport of the whole pleadings

2. Determination:

(a)the existence of preserved claims;

In the above facts, the following facts were acknowledged by adding the whole purport of argument No. 11-1, No. 12, No. 2-2 to the statement in the evidence No. 11-1, No. 12-2, that is, at the time of the sales contract of this case, the Plaintiff did not have a credit guarantee agreement and a joint and several guarantee agreement between the Plaintiff and the Defendant No. 1, while there was a credit guarantee agreement between the Plaintiff and the Plaintiff at the time of the sales contract of this case, Non-Party No. 1 corporation's net income in 2004 was 105,838,139 won, while the net income in 2005 was 71,354,362 won in the year of 205, the third-party company did not pay interest on March 1, 2006, and the third-party company paid a reimbursement claim against Non-party No. 1 corporation at the time of the sales contract of this case.

B. Establishment of fraudulent act

Unless there are special circumstances, the debtor's act of selling real estate, which is one of his own property, and replacing it with money which is easy for the debtor to consume, is presumed to constitute a fraudulent act against the creditor. Therefore, the debtor's intention of prejudice is presumed to be presumed to be a fraudulent act, and the burden of proving that there was no person who has bought it in bad faith is the beneficiary. Thus, the sales contract of this case between the defendant 1 and the defendant 2, which is the debtor, constitutes a fraudulent act,

C. Defendant 2’s bona fide defense

Defendant 2, as at the time of the instant sales contract, was unaware of the fact that there was a shortage of common security of creditors including the Plaintiff, and that himself is a bona fide beneficiary.

In light of the above facts, it is difficult to acknowledge that the above evidence No. 16, No. 19, No. 5-1, No. 7-1, No. 8-1, No. 10-2, No. 11, and No. 23 were appropriated for the remainder of the purchase price, but it is difficult to recognize that the above evidence No. 2 had been used for the remainder of the purchase price, since it is hard to recognize that the above evidence No. 1, No. 5-2, No. 1, No. 4, and No. 1, No. 5-2, No. 1, No. 2, and No. 2, No. 3, No. 2, and No. 1, No. 3, No. 2, and No. 3, No. 2, there were no grounds to believe that each of the above real estate was used for the remainder of the purchase price of each of the above real estate after the purchase price of each of the above real estate.

D. Sub-determination

Therefore, the sales contract of this case is revoked as it constitutes a fraudulent act and its restoration to its original state, and Defendant 2 is obligated to implement the procedure for registration of cancellation of ownership transfer as stated in the purport of the claim concerning each of the real estate of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified, and the part against the defendants in the judgment of the court of first instance, which is consistent with this conclusion, is justified, and all appeals by the defendants are dismissed as it is without merit. It is obvious that "No. 4, 2005" in subparagraph (a) of the judgment of the court of first instance is a clerical error of "No. 18, 2005" and it is corrected as it is correct.

【Omission of Real Estate List】

Judges Park Jong-chul (Presiding Judge)

(1) According to the sales contract of this case (No. 5-1), Defendant 2 paid 50 million won to Defendant 1 for the purchase price of KRW 50 million on October 18, 2005, and paid 460 million to Defendant 1 for the remainder of KRW 500 million on November 30, 2005, on the aggregate of KRW 115 million on each of the instant real estate and KRW 500 million on the aggregate of KRW 105 billion on each of the instant real estate, KRW 105 billion on the aggregate of KRW 100,000 on the first instance court’s credit cooperatives and KRW 105 billion on each of the instant real estate, KRW 205,000 on the aggregate of KRW 105,00 on the aggregate of KRW 100,000 on the aggregate of KRW 105,000 on the first instance court’s credit cooperatives and KRW 100,000 on each of the instant real estate.

(2) Defendant 1’s assertion to the effect that he concluded the instant sales contract in order to repay the debt amounting to KRW 170 million that Nonparty 6 owes to Nonparty 7 with his own introduction, but he did not submit any financial data to recognize that Nonparty 7 lent KRW 170 million to Nonparty 6 with Defendant 1’s introduction, and that Defendant 1 paid the debt amount to Nonparty 7. In addition, Defendant 1 had already borne a large amount of debt with the Korea Credit Guarantee Fund, etc., but it is difficult to readily accept that he sold each of the instant real estate, which is the only property to repay the debt amount to Nonparty 6 on behalf of Nonparty 6.

(3) Defendant 2 asserted that he purchased each of the instant real estate for the sake of his children studying in Seoul, and that he actually resided in the Republic of Korea since the purchase of each of the instant real estate (see, e.g., Supreme Court Decision 2009Da14483, Dec. 9, 2005). However, Defendant 2 or his children, after the instant sales contract, had been transferred to Gwangju Dong-dong School on December 9, 2005, did not find any material that he resided in each of the instant real estate.