2015Da1666 Cancellation of the right to collateral security

A Limited Liability Company A

1. B

2. C

Jeonju District Court Decision 2013Na12382 Decided December 9, 2014

August 30, 2016

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 4

A. According to the reasoning of the judgment below, the court below rejected this part of the plaintiff company's assertion on the ground that the patent license contract of this case was concluded with F in fact with F without the intention to use patent rights or trademark rights, etc. in order to obtain a loan by the network G. Even if the patent license contract of this case was invalid as it constitutes false representation of agreement, the defendants constitutes a third party with a new legal interest based on the patent license contract of this case. However, the defendants did not have any evidence to acknowledge that there was a bad faith as to false representation of agreement.

However, the above determination by the court below is difficult to accept for the following reasons.

B. Whether the patent license contract of this case constitutes false representation of conspiracy

(1) The reasoning of the lower judgment and the evidence admitted by the lower court reveal the following circumstances.

(A) The instant patent license agreement, in addition to the advance payment of KRW 100,000,000, additionally paid KRW 200,000,000, in addition to the first agreed advance payment, and deeming that the production and supply of the amount equivalent to KRW 300,00,00 has been completed, and as a result, F, the patentee, as a result, obtained a claim that can be immediately received 600,000,000 under the condition that the Plaintiff Company would permit the

(B) The Plaintiff Company is a company with capital of 300 million won. After its establishment, it decided to produce and sell secondary processed products using swine, chickens, etc., and accordingly, purchased the ownership of each land listed in the attached list of the lower judgment (hereinafter referred to as “instant land”) and acquired ownership, and each factory building listed in the same list on the ground (hereinafter referred to as “instant building”; hereinafter referred to as “the instant land and buildings combined with the instant land and buildings”) was liable for a large amount of debt because it was unable to pay the construction cost properly in the course of constructing new buildings on the ground. In particular, since the patent licensing contract of this case was concluded, it was issued even the compulsory decision on commencement of the auction on the instant real estate upon application of one of the creditors E.

(C) Under such circumstances, the network G, which was delegated all the powers regarding the operation of the Plaintiff Company by the executives of the Plaintiff Company, borrowed from F to F 24.5 million won, and repaid the Plaintiff’s debt to E and withdrawn the said application for compulsory auction. (D) The patent right owned by F is related to ginseng racing method, ginseng seed breeding method, etc., and cannot be found any relation with the Plaintiff Company’s business, which was scheduled by the Plaintiff Company. In light of the financial situation at the time of the Plaintiff Company, it was not sufficient to invest in the new business, such as the instant patent license agreement, in light of the financial standing of the Plaintiff Company.

(E) After the patent license agreement of this case, the Plaintiff Company did not have had the production facilities capable of manufacturing the product using the patent right, etc., nor had it run the business using them. The Defendant asserted that the Plaintiff supplied the raw materials contained in 200,000 liters instead of supplying the royalty amount reached 100,000 square meters, unlike the entries in the patent license agreement of this case. However, this assertion is different from the contents of the contract, and it is not acceptable that the Plaintiff Company, which did not have any human and material production basis, received from raw materials necessary for its business as above.

(F) Rather, at the time of borrowing money from F, the network G was aware of the fact that the real estate of this case, including the building newly constructed at the time of borrowing money from F, was used as the construction cost and facility funds from the financial institution as collateral, and such circumstance appears to have been obtained as a loan instead of the loan from the financial institution by F, and in the process, it appears to have prepared the patent license agreement of this case and the mortgage contract of this case for the purpose of borrowing funds from the bond company upon F’s request.

(G) After becoming aware that the net G was possible to lend considerable loans from the Yellow Credit Cooperative, the Defendant demanded F to cancel the registration of the establishment of each of the instant neighboring mortgage in the name of the Defendants established in the instant real estate, but F refused to do so, and F filed the instant lawsuit against the Defendants on behalf of the Plaintiff Company on behalf of the Defendants before three months have elapsed since the concluding of the patent license agreement, and filed the instant lawsuit seeking the cancellation of each of the instant secured mortgage on behalf of the Defendants prior to the lapse of three months, and the F was accused of fraud.

(2) Examining the above circumstances in light of the relevant legal principles, it is difficult to view the instant patent license agreement as having been concluded for the purpose of producing products using the patent right held by the Plaintiff Company F and paying patent fees, etc. in return, and in accordance with the F’s proposal, it is reasonable to view the Plaintiff Company as having conspired with the Plaintiff Company to create appearance, such as having a claim for patent fees equivalent to KRW 600,000,000, for the purpose of using the Plaintiff Company to obtain a loan through a bond company.

C. Whether the Defendants are a bona fide third party under Article 108(2) of the Civil Act or not shall be deemed to refer to the third party under Article 108(2) of the Civil Act, not to refer to all persons other than the parties of the false indication and their general successors, but to those who have a new interest based on the false indication (see, e.g., Supreme Court Decision 82Da594, Jan. 18, 1983).

According to the reasoning of the judgment below and the evidence adopted by the court below, the plaintiff company and F set up a right to collateral security in the name of the defendants on the real estate owned by the plaintiff company by paying a patent fee of KRW 600 million to F under the patent license agreement of this case and the identification letter of this case between the plaintiff company and F through the patent license agreement of this case. The plaintiff company set up a right to collateral security in the name of the defendants, and as a security, receive money equivalent to KRW 600 million from the defendant of the patent, and the debt is paid by the plaintiff company to the plaintiff company, and the network G representing the plaintiff company was set up in the name of

Examining the above facts in light of the legal principles as seen earlier, the Defendants merely become the mortgagee of the instant patent license agreement, which constitutes a false conspiracy, and it is difficult to view that they constitute a third party with a new interest by making a false representation.

D. Nevertheless, the lower court rejected the Plaintiff Company’s assertion on this part solely on the grounds as seen earlier. In so doing, the lower court erred by misapprehending the legal doctrine regarding false conspiracy, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. Regarding ground of appeal No. 2

A. Based on the premise that the patent license agreement of this case is valid, the lower court acknowledged the facts as indicated in its reasoning. The Defendants provided financing to F or the Plaintiff before or after each of the instant real estate was established as collateral, and thus, deemed that each of the instant secured claims was possessed by each of the instant secured claims, and thus, the Defendants did not have any secured obligation of each of the instant secured claims.

The Plaintiff’s assertion was cited.

B. However, it is difficult to accept the above determination by the court below for the following reasons. First, as seen earlier, there is room to deem the patent licensing agreement of this case as invalid because it constitutes a false declaration of agreement. Therefore, under the premise that the patent licensing agreement of this case is valid, the Defendants’ lending funds to F and lending funds to the Plaintiff Company cannot be deemed as the secured claim of each of the instant mortgage claims.

Meanwhile, according to the reasoning of the lower judgment and the evidence established by the lower court, while assisting the Plaintiff Company to borrow funds from the Defendant C’s account on June 1, 2012, the KRW 48 million out of the KRW 50 million transferred from the Defendant C’s account to the F’s account was transferred to the H’s account, the mother of June 1, 2012, and the KRW 25 million out of the money was transferred to the Plaintiff Company’s corporate account at the same time, and on June 5, 2012, the money was transferred from the Defendant C’s account to the Plaintiff Company’s corporate account at KRW 52.9 million, which was transferred from the Defendant C’s account to the F’s corporate account on June 5, 2012, it is doubtful whether the Plaintiff Company lent the money directly to the Plaintiff Company’s corporate account, which was the mother of the Plaintiff Company’s corporate loan to the Plaintiff Company’s corporate account at the same time, as the Plaintiff Company’s corporate account at the same time.

In light of the above circumstances, the lower court should have examined more closely whether the Defendants actually lent funds directly to the Plaintiff Company as a security, and if F lent funds, the background leading up to setting up the right to collateral in the name of the third party in the name of the Defendants, and should have determined whether each of the instant collateral security obligations under the name of the Defendants exists or whether the establishment of the right to collateral security exists or not.

C. Nevertheless, the lower court rejected this part of the Plaintiff Company’s assertion solely on the grounds as seen earlier. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of secured debt or the validity of secured mortgage, etc., and by failing to exhaust all necessary deliberations beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. The allegation contained in the grounds of appeal assigning this error is with 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.

The presiding judge shall keep the record of the Justice

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Park Jae-young