Plaintiff (Law Firm Completion, Attorney Oyeong-hun et al., Counsel for plaintiff-appellant)

Defendant (Law Firmcheon, Attorneys Shin Shin-soo et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Da136848 Decided January 21, 201

October 27, 2011

1. Revocation of a judgment of the first instance;

2. The part concerning the revocation of the fraudulent act among the instant lawsuits is dismissed.

3. The plaintiff's claim except paragraph 2.2. is dismissed.

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

Purport of claim

With respect to the 330 square meters of forests and fields (hereinafter “the instant real estate”) in Sung-nam-si, Sungnam-si (hereinafter omitted), the contract to establish a mortgage concluded on June 29, 2009 by the Defendant and Nonparty 2 shall be revoked, and the Defendant shall implement the procedure for cancelling the registration of cancelling the registration of the establishment of a neighboring mortgage that was completed on June 29, 2009 with the Sung-nam Branch of Suwon District Court (hereinafter “the instant real estate”).

Purport of appeal

The judgment of the first instance shall be revoked. Each plaintiff's claim shall be dismissed.

1. Grounds for claim;

A. Nonparty 1 trusted the name of the owner on the registry of the instant real estate owned by it to Nonparty 2, and around June 29, 2009, Nonparty 2 set up a mortgage amount of KRW 1 billion with respect to the instant real estate (hereinafter “mortgage”) to the Defendant on June 29, 2009 constitutes a fraudulent act, as it harms the joint security of Nonparty 1’s general creditors, including the Plaintiff, and is presumed to have been malicious by Nonparty 1 and the Defendant.

B. Therefore, the Defendant is obligated to cancel the mortgage contract of this case between Nonparty 2 and the Defendant, and the Defendant is obligated to cancel the registration of the establishment of the mortgage of this case to restore the original state to its original state.

2. Determination

A. Part on revocation of fraudulent act

The contract establishing the instant mortgage seeking cancellation is a juristic act between Nonparty 2, a title trustee of the instant real estate, and the Defendant.

The title trust agreement between Nonparty 1 and Nonparty 2 on the instant real estate becomes null and void pursuant to the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the instant real estate becomes Nonparty 1’s responsible property, separate from the fact that it becomes Nonparty

In the exercise of the right of revocation, the subject matter of revocation is limited to a juristic act between the debtor and the beneficiary, and any juristic act other than the debtor is not subject to revocation (see Supreme Court Decision 2004Da21923, Aug. 30, 2004). Thus, the plaintiff, the creditor of the non-party 1, cannot seek revocation. Thus, this part of the lawsuit is unlawful.

B. Reinstatement

As long as the cancellation of the instant mortgage contract seeking by the Plaintiff is illegal, the part of the claim for cancellation of the registration of creation of a mortgage of this case seeking restitution on the premise of such cancellation is without merit without further review.

3. Conclusion

Therefore, the part concerning the revocation of fraudulent act among the lawsuit in this case is unlawful and dismissed, and the plaintiff's claim for restitution against the defendant is dismissed as it is without merit. The judgment of the court of first instance is unfair as it is so unfair, and the part concerning the revocation of fraudulent act among the lawsuit in this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Jeong-ho (Presiding Judge)