Korea Credit Guarantee Fund (Law Firm Locom, Attorneys Park Sung-ho, Counsel for the defendant-appellant)

Defendant 1 (Defendant in the judgment of the Supreme Court) and two others (Attorney Jeong-won, Counsel for the defendant-appellant)

October 10, 2012

Gwangju District Court Decision 2011Gahap1803 Decided May 3, 2012

1. The part against Defendant 1 in the judgment of the first instance shall be revoked;

2. Upon a claim for change in exchange at the trial of the party, the contract to establish a mortgage concluded on February 3, 2009 with respect to the real estate recorded in the separate sheet between the non-party corporation and the non-party 2 shall be revoked.

3. Defendant 1 shall implement the procedure for cancellation of registration of cancellation of the registration of part of the right to collateral security (right to collateral security) that was completed on September 29, 2010 by the Gwangju District Court Naju registry office, which was completed on September 29, 2010.

4. All claims filed against Defendant 2 (Non-party 3 of the judgment of the Supreme Court) and Defendant 3 (Non-party 4 of the judgment of the Supreme Court) that were changed in exchange in the party trial are dismissed.

5. Of the total litigation costs, including the appeal costs, the costs incurred between the Plaintiff and Defendant 1 are assessed against Defendant 1, and the costs incurred between the Plaintiff, Defendant 2 and Defendant 3 are assessed against the Plaintiff, respectively.

The judgment of the first instance court is revoked. The contract to establish a mortgage was revoked on February 3, 2009 with respect to the real estate listed in the separate sheet between the non-party 3 and the non-party 2. The defendant 1 implemented the procedure for cancellation registration of the registration of the partial transfer of the right to collateral security, which was completed on September 29, 2010 with respect to the above real estate, with respect to the non-party 2. The defendant 2 and the non-party 3 delivered an expression of consent with respect to the registration of cancellation of the registration of the establishment of the right to collateral security, which was completed on February 3, 2009 with respect to the plaintiff on February 3, 2009 (the plaintiff first requested against the defendant 1, the cancellation of the registration of partial transfer of the right to collateral security, and the registration of cancellation of the seizure of the right to collateral security, which was completed on February 3, 2009 with respect to the non-party 2 and the non-party 2.

1. Basic facts

A. Credit guarantee as to whether the Plaintiff was a stock company

On November 1, 2007, the Plaintiff concluded a credit guarantee agreement as stipulated in the credit guarantee agreement as of April 30, 2013 between three places and three places to guarantee the repayment obligation of a loan for corporate general facilities and loan from a national bank. The Plaintiff paid 4,603,266,82 won out of the principal debt of the loan, which was appropriated to the national bank under the credit guarantee agreement as of February 29, 2008.

B. Conclusion of a contract to establish a third party's mortgage and the lapse of a lawsuit to revoke a fraudulent act

(1) On February 3, 2009, in excess of the debt, the agreement to establish a collateral security (hereinafter “instant agreement”) with Nonparty 2 on the real estate listed in the separate sheet (hereinafter “instant real estate”) was concluded, and Nonparty 2 completed the registration of the establishment of collateral security (hereinafter “instant establishment of collateral security”) with the Jeju District Court No. 3020 on February 3, 2009, which was received on February 3, 2009. Nonparty 2 concluded a transfer agreement with Nonparty 1 on May 23, 2009 with Nonparty 1 on June 25, 2009, and completed the transfer registration with Nonparty 1 as the same registry office No. 20527.

(2) Defendant 2 and 3 filed a claim for the agreed amount against Nonparty 2 as the Gwangju District Court 2009Gahap7856, and received a settlement recommendation from the Gwangju District Court to the effect that “Nonindicted 2 shall pay KRW 105,00,000 each to Defendant 2 and 3 until February 20, 2010, but if the said amount is not paid by the payment date, the said decision was finalized on February 3, 2010.”

(3) In addition, on August 10, 2009, Defendants 2 and 3 asserted that the above contract for the transfer of the right to collateral security between Nonparty 2 and Nonparty 1 constituted fraudulent act against the Gwangju District Court 2009Kahap81, and filed a lawsuit for revocation of fraudulent act against the non-party 1, and revoked the contract transfer agreement between the non-party 1 and the non-party 2 on May 23, 2009. The non-party 1 was declared to the non-party 2 as the Jeju District Court Naju registry of Jeju District Court 20527, which became final and conclusive on June 25, 2009 (the non-party 209Na6416, which became final and conclusive on March 26, 2010, but the non-party 1 appealed to the above judgment of 209Da36416, which became final and conclusive on March 24, 2010.

(c) Registration of partial transfer and seizure of mortgage contract;

Upon the cancellation of the registration of transfer of the right to collateral security, Nonparty 2 entered into a contract with Defendant 1 on September 29, 2010 on the transfer of KRW 3,350,000 of the right to collateral security, and completed the registration of transfer of the right to collateral security (No. 25649) as of September 29, 2010. Meanwhile, upon Defendant 2 and Defendant 3’s application, the registration of seizure of the right to collateral security (No. 2010TT 16747, Oct. 26, 2010) was completed as of November 16, 2010 by the same registry office as of Nonparty 2’s receipt of No. 2943, Nov. 16, 2010.

D. The plaintiff's fraudulent act revocation lawsuit

(1) Meanwhile, on January 28, 2010, before the judgment of the above Gwangju District Court 2009Gahap8781 became final and conclusive, the Plaintiff asserted that the instant mortgage contract constituted a fraudulent act between Nonparty 2 and Nonparty 1 as the Gwangju District Court 2010Gahap1007, and that the instant mortgage contract between Nonparty 2 constitutes a fraudulent act. On November 18, 2010, the Plaintiff filed a lawsuit for revocation of a fraudulent act, etc., and revoked the instant mortgage contract concluded between Korea and Nonparty 2 regarding the instant real estate. Nonparty 1 was sentenced to the judgment that “the execution of the registration procedure for cancellation of the instant mortgage registration of the instant real estate completed with respect to the instant real estate to Korea,” and the said judgment became final and conclusive on January 6, 2011.

(2) However, as seen in Paragraph (b)(3) above, prior to the conclusion of the judgment of the foregoing Gwangju District Court Decision 2010Gahap1007, the registration of the establishment of a mortgage in the name of Nonparty 1 was already cancelled and the execution of the judgment of the above 2010Gahap1007 was made (so, execution based on the above judgment is impossible). Furthermore, the plaintiff filed a lawsuit seeking restitution following the cancellation of the registration of the establishment of a mortgage in the name of Nonparty 2 as the Gwangju District Court 201Gahap2649, which again sought restitution against Nonparty 2 on June 23, 2011, and the above judgment was finalized on July 14, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 2-1, 2, Eul evidence 5, Eul evidence 1-1, 2, Eul evidence 3-1, 3-4, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

On February 3, 2009, the Plaintiff asserted that the act of entering into the instant mortgage contract with Nonparty 2 constitutes a fraudulent act detrimental to the Plaintiff, a creditor. Defendant 1 asserts that the part of the Plaintiff’s claim for revocation of the said fraudulent act among the instant lawsuit was filed after the lapse of the filing period under Article 406(2) of the Civil Act, and thus, is unlawful.

B. Determination

(1) In order for a creditor to exercise the right of revocation against a subsequent purchaser pursuant to Article 406(1) of the Civil Act, the creditor shall file a claim for revocation of a fraudulent act between the debtor and the beneficiary within the period prescribed by Article 406(2) of the Civil Act by means of filing a lawsuit with a court, not asserting the method of attack and defense. Although the creditor has already filed a lawsuit against the beneficiary seeking revocation of a fraudulent act and has been sentenced to a judgment that revokes a legal act between the debtor and the beneficiary, the judgment cannot be effective against the subsequent purchaser, who is not the defendant in the lawsuit. Thus, in order for the creditor to seek restitution from the subsequent purchaser by exercising the right of revocation against the subsequent purchaser, the creditor shall file a claim for revocation of the fraudulent act between the debtor and the beneficiary within the period prescribed by Article 406(2) of the Civil Act (see, e.g., Supreme Court Decision 2004Da17535, Jun. 9, 2005).

(2) On November 18, 2010, considering that the Plaintiff’s claim for cancellation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation was rendered on January 28, 201 and that such fraudulent act constituted a fraudulent act between Nonparty 1 and Nonparty 2, the judgment was rendered that “The right of revocation of the right of revocation of the registration of establishment of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation, which is part of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right of revocation of the right.

(3) Ultimately, Defendant 1’s main defense is without merit.

3. Determination as to the claim against Defendant 1

(a) Details of the fraudulent act;

(1) A preserved claim

According to the above facts, inasmuch as the Plaintiff acquired the claim for reimbursement by subrogation for the obligation of loans in accordance with the credit guarantee agreement of this case on December 29, 2008, the Plaintiff’s claim for reimbursement is subject to the obligee’s right of revocation.

(2) The nature of the fraudulent act

Where a debtor's assets are insufficient to fully repay his/her obligations, if the debtor provided his/her assets as a collateral to a certain creditor, barring any special circumstance, it would directly harm the interests of other creditors and thereby constitute a fraudulent act in relation to other creditors, and the same applies to cases where the assets provided as collateral are not the debtor's sole assets, or fall short of the amount of claims (see Supreme Court Decisions 2007Da18218, Jul. 12, 2007; 2008Da85161, Sep. 10, 2009, etc.).

As to the instant case, in full view of the foregoing facts, the establishment of a mortgage agreement with Nonparty 2 on the instant real estate after the date of the occurrence of the mortgage agreement with Nonparty 2, and the completion of the mortgage establishment agreement in the future of Nonparty 2, barring any special circumstance, is an act that deepens the situation of the lack of joint collateral by ordinary creditors, and thus constitutes a fraudulent act against the Plaintiff, which is a creditor, and in light of the time of the conclusion of the mortgage agreement and the financial status of the place of the contract, etc., it is deemed that the act of establishing the mortgage was reduced. As long as it is deemed that the intention of the debtor's intention is recognized, it is presumed that Nonparty 2 and Defendant 1, who is the subsequent purchaser, the beneficiary, is also presumed to have been malicious.

(3) Determination as to Defendant 1’s good faith

On September 29, 2010, Defendant 1 lent money to the person who trusted the right to collateral security on the registry of the instant real estate and received the instant registration of partial transfer of collateral security. Thus, Defendant 1 asserted that the said loan constitutes a third party acting in good faith. However, it is insufficient to recognize that Defendant 1 lent KRW 1,920,000 to whether Defendant 1 took place through Nonparty 2, or that Defendant 1 took over part of the right to collateral security as to whether Defendant 1 took place from Nonparty 2 in order to secure the right to collateral loan against Defendant 1, and there is no other evidence to acknowledge otherwise (or from October 31, 2008 to November 21, 2008, Nonparty 1 did not establish the right to collateral security as to the instant loan from Defendant 1 to Defendant 2, who was subject to the revocation of the registration of the establishment of collateral security by way of fraudulent act under the name of Nonparty 1’s fraudulent act, which became final and conclusive after the revocation of the registration of collateral security by subrogation.

B. Sub-committee

Therefore, on February 3, 2009, the agreement to establish a mortgage was revoked with respect to the instant real estate between Samwon and Nonparty 2, and Defendant 1 is obligated to implement the procedure for registration cancellation of partial registration of collateral security transfer, which was completed as of September 29, 2010 by the Gwangju District Court No. 25649, Sept. 29, 2010.

4. Determination on the claim for cancellation of registration of seizure of collateral security against the defendant 2 and 3

A. The plaintiff's assertion

The plaintiff asserts that the judgment ordering the cancellation of the registration of the establishment of the establishment of the creation of the neighboring mortgage in the non-party 2 was final and conclusive, and that the registration of the establishment of the creation of the neighboring mortgage in the above case should be cancelled pursuant to the above judgment, the defendant 2 and the non-party 3, who completed the seizure registration of the non-party 2's mortgage claim, have the obligation to

B. Determination

The revocation of a fraudulent act is effective relatively between the parties to a lawsuit seeking revocation, and a third party, other than the parties, does not affect the legal relationship of the revocation, unless there are other special circumstances. The mere recognition of the relative effect of the revocation of a fraudulent act is to coordinate the interests of the creditor and beneficiary of the revocation, and the third party, which does not affect the validity of the revocation, does not limit the scope of the revocation to the subsequent purchaser, etc. of the real estate that newly conducted a legal act on the basis of the fraudulent act and conducted a legal act on the basis of the underlying property. Thus, the judgment of revocation of a fraudulent act does not have a new legal relationship with the beneficiary, but it cannot be viewed that the judgment of revocation of a fraudulent act naturally has an effect on the person who provisionally seized the right of collateral that the beneficiary acquired by the fraudulent act in order to secure the claim already held as the inherent creditor of the beneficiary (see Supreme Court Decision 2008Da7109, Jun. 11, 200).

On July 17, 2009, Defendant 3 and 2 filed a lawsuit claiming a contract amount against Nonparty 2 as the Gwangju District Court 2009Gahap7856, the Gwangju District Court rendered a ruling of recommending settlement that “the non-party 2 shall pay KRW 105,00,000 each to Defendant 3 and 2.” The above ruling becomes final and conclusive on February 3, 2010, Defendant 2 and 3 had no effect on the non-party 2’s claim for a fraudulent act as a matter of course on October 26, 2010, according to the Ji Government District Court Order 2010 other than 16747, which was issued on October 26, 2010 and completed the attachment registration of the non-party 2’s mortgage claim against the non-party 2 as the creditor of the non-party 2 and 3, thus, it cannot be viewed that the above ruling had no effect on the non-party 2’s claim for cancellation.

5. Conclusion

Therefore, the claim for cancellation of the registration of partial transfer of the right to collateral security against Defendant 1 is justified and accepted (the former claim for cancellation of the contract on partial transfer of the right to collateral security against Defendant 1 and the claim for cancellation of the registration of partial transfer of the right to collateral security against Defendant 2 and 3 against Defendant 2 and 3 was withdrawn due to a change in the exchange of the lawsuit that was made in the trial at the trial at the trial at the trial at the trial at the trial at the trial and the judgment of the first trial at the trial at the same time is unfair. Therefore, the judgment of the first instance is revoked by accepting the plaintiff's appeal and the claim against Defendant 1 (including the changed part in exchange at the trial at the trial) is accepted, and each claim against Defendant 2

[Attachment]

Judges Kim Jong-man (Presiding Justice)