(영문) 대법원 2016.7.29.선고 2015다214462 판결

The plaintiff asserts that the court below calculated the secured claim amount based on KRW 970,00,000,000, out of KRW 970,000 of the secured claim amount of the second collateral of the mortgage was already repaid, it erred by violating the precedent or omitting judgment. This allegation in the grounds of appeal is not an issue of the selection of evidence and fact-finding, which are the exclusive authority of the fact-finding court, or is asserted on the premise of facts different from the facts recognized by the court below, and thus, is not a legitimate ground of appeal.

2. The portion borne by C owned shares out of the amount of secured claims of the first collateral mortgage;

A. In the instant case where the Plaintiff, a creditor of C, sought revocation of a fraudulent act against C and the Defendant’s sales contract of the instant real estate, the lower court determined that: (a) the market price as of the date of the instant sales contract of the instant real estate owned by C, I, and J is KRW 1,430,728,650; (b) the first collateral mortgage has been established for the entire real estate of this case, which is the debtor I; and (c) the amount of the secured claim is KRW 695,00,000; and (d) the amount of the secured claim to be deducted from the secured claim provided to C’s joint collateral by general creditors, which is the amount to be deducted from the secured claim provided to C’s joint collateral by the debtor I, the secured claim amount of KRW 695,00,000,000, in proportion to the value of the share of J’s property C, 231,666,666 (the secured claim amount of KRW 695,00,00,000) x3).

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

1) In determining whether the act constitutes a fraudulent act subject to revocation by creditor, if an asset owned by an obligor is provided as a physical collateral for another obligee’s claims, the portion provided as a physical collateral cannot be deemed as the obligor’s property for the general creditors. Therefore, only the balance of the secured claims held by other creditors out of the value of the property offered as a physical collateral should be evaluated as the obligor’s active property (see Supreme Court Decision 2010Da64792, Jan. 12, 2012). In such case, where several real estate are jointly mortgaged, the amount of secured claims borne by each real estate is calculated by dividing the amount of secured claims by the joint collateral in proportion to the value of each real estate held as a joint collateral, barring special circumstances, in light of the purport of Article 368 of the Civil Act. However, in cases where part of the secured claims is owned by an obligor and another part of the secured claims are owned by an obligor, barring special circumstances, it is reasonable to view that the amount of secured claims jointly owned by the obligor out of the amount of secured claims owned by another real estate.

2) Examining the aforementioned facts in light of the aforementioned legal principles, it is reasonable to view that the amount of the secured debt held by C, a person who has pledged his property to secure another’s property, out of the amount of the secured debt held by joint mortgage, is divided in proportion to the value of the share held by C and C, a person who has pledged his property to secure another’s property, except the amount of the secured debt held by C, a person who has pledged his property to secure another’s property, out of the amount of the secured debt held by joint mortgage. Nevertheless, the lower court erred by misapprehending the legal doctrine on fraudulent act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, 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.