In case where the amount of the secured claim of a mortgage exceeds the value of the secured claim, whether the debtor's act of transferring the secured claim becomes a fraudulent act in relation to the general creditor (negative), and in this case, the meaning of the secured claim amount

In the event that real estate on which a mortgage is established is transferred by a fraudulent act, the fraudulent act is established within the scope of the value of the real estate, that is, the balance obtained by deducting the secured debt amount of the mortgage from the market value (not consistent with the publicly notified land value). If the secured debt amount exceeds the value of the real estate, the assignment of the real estate concerned cannot be deemed a fraudulent act. The secured debt amount here is not the maximum debt amount, but the claim

Articles 357, 360, and 406(1) of the Civil Act

Supreme Court Decision 97Da10864 Decided September 9, 1997 (Gong1997Ha, 3051), Supreme Court Decision 97Da6711 Decided February 13, 1998 (Gong1998Sang, 727), Supreme Court Decision 98Da41490 Decided September 7, 199 (Gong199Ha, 2066), Supreme Court Decision 99Da20612 Decided June 12, 2001 (Gong2001Ha, 1567)

Korea

Defendant (Attorney Kim Full-seop, Counsel for defendant-appellant)

Seoul High Court Decision 99Na65075 delivered on June 29, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the non-party 1's transfer of non-party 1's golf membership and the bid and expropriation of the real estate owned by the non-party 1, 696, 94 on June 23, 1998, the portion belonging to the non-party 285, 289, 102 on July 4, 1998, and the portion belonging to the non-party 420,710, 373 on July 16, 1998, on the ground that the non-party 1 and the non-party 2's joint ownership transfer of 90,000 won on the non-party 1's share owned by the non-party 1 and the non-party 3's joint ownership transfer of the above 90,000 won on the ground that the non-party 1's share owned by the non-party 1,69,000 won on July 31, 1998.

2. Judgment of the Supreme Court

In a case where an immovable property on which a mortgage is established is transferred by a fraudulent act, the fraudulent act is established within the scope of the value of the immovable property, that is, the balance obtained by deducting the secured debt amount of the mortgage in the market price (not consistent with the publicly notified land price). If the secured debt amount exceeds the value of the immovable property, the assignment of the immovable property concerned shall not be deemed a fraudulent act (see, e.g., Supreme Court Decisions 96Da23207, Oct. 29, 1996; 97Da10864, Sept. 9, 197; 9Da20612, Jun. 12, 2001); in this context, the secured debt amount is not the maximum debt amount but the credit amount actually occurred.

Therefore, in determining whether the act of donation by Nonparty 1 to the Defendant, the wife, of the instant forest shares, on which the right to collateral security was established, constitutes a fraudulent act, the lower court determined in accordance with the above legal doctrine, and determined the amount of the share in the instant forest and the instant joint collateral security interest and the amount of the actual secured claim under the said joint collateral security interest, and, if there is a balance in the market price of the said real estate at the time of closing argument, the establishment of a fraudulent act should be recognized within the extent of the fraudulent act. However, the lower court erred by misapprehending the legal doctrine as to the establishment of a fraudulent act, failing to exhaust all necessary deliberations as to the market price of the said real estate and the amount of the actual secured claim, and thereby denying the establishment of a fraudulent act on the ground that the officially announced value did not exceed the maximum debt amount. The allegation in the grounds of appeal on

3. 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.

Justices Seo-sung (Presiding Justice)