[1] Whether a fraudulent act is established in a case where a debtor's selling real estate, which is the sole property, and changing money into money, was done at a reasonable price to cover a legitimate repayment to some creditors (negative)

[2] The case holding that a fraudulent act does not constitute a case where a debtor sells real estate, which is its sole property, to cover the repayment of wages claims, etc. which take precedence over the general creditor, at the market price and uses it for the repayment of the above wage claims

[1] In principle, the debtor's act of selling real estate, which is the only property of his own, and replacing it with money easily consumed by the general creditors, is a fraudulent act detrimental to the general creditors. However, if there are special circumstances where the sale was made at a reasonable price to appropriate for repayment to some creditors, it is not a fraudulent act.

[2] The case holding that a fraudulent act is not applicable where a debtor sells real estate, which is one of his sole property, to appropriate for the repayment of wages claims, etc. which take precedence over the general creditor, and uses it for the repayment of the above wage claims, etc.

[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code

[1] Supreme Court Decision 66Da1535 delivered on October 4, 1966 (No. 14-3, 138), Supreme Court Decision 97Da54420 delivered on April 14, 1998 (Gong1998Sang, 1325), Supreme Court Decision 2000Da41875 Delivered on April 24, 2001 (Gong2001Sang, 1198)

Daegu Bank, Inc.

Defendant 1 and one other (Attorney Seo-young et al., Counsel for the defendant-appellant)

January 17, 2008 (Defendant 1 shall be admitted without holding any pleadings)

1. Defendant 1 shall pay to the Plaintiff 93,70,000 won and 53,700,000 won, 19% per annum from February 20, 2007 to June 22, 2007; 20% per annum from the next day to the day of full payment; 40,000,00 won among them, 19% per annum from January 27, 2007 to June 22, 2007 to the day of full payment; and 20% per annum from the next day to the day of full payment.

2. The plaintiff's claim against the defendant 2 is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1 shall be borne by Defendant 1, and the part arising between the Plaintiff and Defendant 2 shall be borne by the Plaintiff

4. Paragraph 1 can be provisionally executed.

The sales contract concluded on January 11, 2007 between Defendant 1 and Defendant 2 shall be revoked within the limit of KRW 31,500,000. Defendant 2 shall pay to the Plaintiff 31,50,000 with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

1. Basic facts

The following facts do not conflict between the Plaintiff and Defendant 1, and between the Plaintiff and Defendant 2, the following facts can be acknowledged by taking account of the overall purport of the pleadings in each of subparagraphs 1-1 through 6-2, and subparagraphs 2-2-4 and 5.

A. On October 20, 2005, the Plaintiff loaned the amount of KRW 100 million to Defendant 1 as of 12-month interest rate calculated by adding 4.95% to the market base rate of 12-month interest, interest rate of KRW 19% per annum, interest rate of KRW 19% per annum, and due date of payment June 26, 2006. On November 27, 2006, the Plaintiff loaned the amount calculated by deducting KRW 2.18% from the market base rate of 3-month interest, interest rate of KRW 19% per annum, interest rate of KRW 19% per annum, and due date of payment as of November 23, 2007. The repayment period of the loans on October 20, 2005 was extended to October 22, 2007, the principal was reduced to KRW 53,700,000.

B. Defendant 1 delayed the repayment of the principal and interest of each of the above loans, and lost the benefit of each of the loans on February 19, 2007 as of November 27, 2006 from the date of February 19, 2007. Meanwhile, the Plaintiff received payment from the Korea Technology Credit Guarantee Fund of KRW 160 million out of the principal and interest of the loans on November 27, 2006.

C. Around January 11, 2007, Defendant 1 sold to Defendant 2, a punishment, real estate listed in the separate sheet (hereinafter “instant real estate”) as Defendant 1’s ownership at KRW 148 million (hereinafter “the instant sale”) and completed the registration of ownership transfer on the ground of the sale on January 12, 2007.

2. Judgment on the Plaintiff’s assertion of loan claim

According to the above facts, Defendant 1 shall pay to the Plaintiff damages for delay calculated at the rate of 19% per annum from February 20, 2007 to June 22, 2007, the delivery date of a copy of the complaint of this case from February 20, 2007, and 20% per annum from June 22, 2007, the delivery date of a copy of the complaint of this case, to June 22, 2007, and 40,000 won per annum from November 27, 2006 to the day of full payment. For the Plaintiff, the damages for delay calculated at the rate of 53,70,000 won per annum from January 27, 2006, the delivery date of a copy of the complaint of this case from January 27, 2007 to June 27, 2007, each of these damages for delay shall be paid at the rate of 19% per annum from the day after the date of delinquency.

3. Judgment on the plaintiff's assertion on revocation of fraudulent act

The Plaintiff, at the time of the instant sales, was absent from the status of excess of the obligation, and Defendant 2 was well aware of this, and thus, the instant sales was sought partial revocation and compensation for value by asserting that it was a fraudulent act detrimental to the Plaintiff and the general creditors.

In principle, the debtor's act of selling real estate, which is one of his own property, and replacing it with money easily for consumption, is a fraudulent act detrimental to general creditors. However, if there are special circumstances where the sale was conducted at a reasonable price to appropriate for repayment to some creditors, it does not constitute a fraudulent act (see Supreme Court Decision 66Da1535, Oct. 4, 196).

As to the instant case, comprehensively taking account of the health care account, evidence Nos. 5, 7 through 8-2, and evidence Nos. 1 through 10-18-2, and the testimony of Nonparty 1 and the fact-finding on the old branches of the National Bank of this Court, ① the purchase price of the instant real estate is above KRW 141,50,000, which is the market price of the instant real estate at the time, ② the real estate at the time of the instant sale was completed with the establishment registration of a mortgage as of September 10, 196, which was composed of the obligor 1 and the National Bank of Korea Co., Ltd., Ltd., with the total amount of KRW 10,000,000,000,000,000 won was over KRW 10,000,000,000,000 won was over 7,000,000 won was over 10,000,000 won.

According to the above facts, Defendant 1 performed the sales of this case at the market price in order to repay wages and retirement allowances for three months prior to retirement of employees of Hongsung Electronic, which takes precedence over general creditors, and to escape the secured obligation against the mortgagee who takes precedence over general creditors. In fact, Defendant 1 used 38 million won out of the purchase price of this case in the payment of wages and retirement allowances for three months prior to retirement, and Defendant 1 cancelled the right to collateral security, instead of receiving the remainder of the purchase price, the sales of this case does not constitute a fraudulent act detrimental to general creditors including the Plaintiff. Thus, the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is justified, and the claim against the defendant 2 is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Jin Sung-chul (Presiding Judge)