2014Da87113 Revocation, etc. of Fraudulent Act

1. A;

2. B

3. C

D. Stock Company D.

Busan High Court Decision 2012Na5315 Decided November 13, 2014

October 27, 2016

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Fraudulent act subject to creditor's right of revocation is a debtor's property legal act that causes reduction of the debtor's whole property in principle, and thus, even if the debtor's property legal act is the debtor's property, it cannot be deemed a fraudulent act if it does not cause reduction of the debtor's whole property (see Supreme Court Decision 2014Da22725, Jan. 28, 2016).

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

① On October 9, 2009, the Defendant entered into a bond acquisition contract (hereinafter referred to as “instant bond acquisition contract”) with E (hereinafter referred to as “E”) to acquire KRW 2 billion of the instant bonds with warrants issued by E (hereinafter referred to as “the instant bonds”). In this case, E entered into a contract for the transfer of security (hereinafter referred to as “instant contract”) with the Defendant to secure all obligations, including the principal and interest of the instant bonds, interest thereon, delay damages, and other damages arising in connection with the instant contract, including trademark rights and service mark rights as indicated in the attached list of the lower judgment, E (hereinafter referred to as “G”), service mark rights and service mark rights owned by E (hereinafter referred to as “H”) and service mark rights owned by E (hereinafter referred to as “trademark rights, etc.”) and service mark rights owned by H (hereinafter referred to as “trademark rights, etc. by combining both these trademark rights and service mark rights”).

② In the instant contract to establish a security for transfer of a trademark, when the grounds for loss of the benefit of time under the contract to acquire a patent of this case arise, the Defendant may initiate the procedure for satisfaction and settlement of payment by the security right, etc. (Article 2(2)(b)), and the valuation of trademark rights, etc. shall be based on the appraisal by a reliable assessment agency designated by the Defendant, and “E shall not raise any objection to the result of such appraisal (Article 2(3)(c)). E may arbitrarily choose brands, patent rights, etc. to be used for repayment of the principal and interest of the instant case that the Defendant has not repaid, and if the value of brands and patent rights’ appraisal by the Defendant’s choice exceeds the above amount of debt, the Defendant shall be granted the right to the relevant brands, patent rights as repayment of the said debt, and even if the value of brands

(Article 2(3)(d) provides that "Article 2(3)(d) shall apply."

③ On October 9, 2009, E completed the registration of transfer of rights to each trademark right and service mark right listed in the separate sheet of the judgment below in accordance with the instant contract for transfer of security, and the Defendant paid KRW 2 billion to E on October 12, 2009 in accordance with the instant contract for acquisition of the bonds.

④ On January 25, 2010, the Defendant sent the FW-related notice by content-certified mail to E, and notified the Defendant that the instant bonds will be transferred by means of transfer, if not returned, the Defendant would have executed the security interest for the said trademarks transferred to the security for transfer, as additional provisional seizure other than the matters known at the time of the instant bonds acquisition contract lost the Defendant’s interest due to the occurrence of E, etc., and thus, E would have lost the interest due to the instant bonds returned to E, and thus, the Defendant urged the return of the principal and interest of the instant bonds within five business days from the date of

⑤ On February 11, 2010, the Defendant notified E and G and H that the principal and interest of the instant bonds have not been repaid until February 2, 2010 due to the loss of the benefit of time was not repaid until February 2, 2010, and that if the return was not returned, it would not be returned. The Defendant sent E and G and H “Notice of the Enforcement of Security Rights” on March 2, 2010 and “Notification of the Change and Settlement related to the Execution of Security Rights” on May 3, 2010 to E and H by content-certified mail, and sent E-owned brand name, such as “I” (one eight trademarks listed in the attached list of the judgment of the first instance, hereinafter referred to as “I trademark rights”), G trademark rights, HH trademark rights owned by the Defendant (hereinafter referred to as “trademark rights of the instant three categories”) + KRW 100,000,709,709,709,709,709,000 won and the value of the instant trademark rights were not acquired by G.

(6) On May 20, 2010, E filed an objection on the Defendant’s notice of the execution of the above transfer security right on the ground that the value of the instant trademark right was 6,971,331,00 won (I trademark right 4,842,966,000 + G trademark 1,618,408,000 + H trademark 509,957,000 won) as a result of the appraisal by the accounting firm of the lender on the instant trademark right.

7) On July 20, 2010, J, the largest shareholder of E, G, H, and H, and the Defendant, the representative director of G, and the Defendant concluded a settlement agreement, stating that “1. according to the settlement procedure under the instant contract for the transfer of security, the value calculation of the trademark of this case shall be based on the value assessment of the accounting firm additionally implemented; and the parties, including E and the Defendant, shall not raise any objection thereto. The settlement procedure is completed if the assessed value of the instant trademark right does not exceed the amount of the Defendant’s secured claim under the instant contract for the transfer of security, as a result of the assessment of the accounting firm on July 20, 2010, the liquidation procedure is completed if the assessed value of the instant trademark does not exceed the amount of the Defendant’s secured claim under the instant contract for the transfer of security, and the Defendant shall pay the liquidation amount to the company generating the relevant liquidation amount and terminate the liquidation.”

8. On July 23, 2010, an accounting firm established the settlement agreement of this case submitted an appraisal report on the trademark rights of this case. The value of the trademark rights of this case was 2,432,053,00 won (I,526,400 won + H trademark 471,105,000 won + H trademark 434,546,00 won). Based on this, the Defendant paid 30 million won to the Defendant for the settlement of accounts based on the settlement of accounts based on the value of the trademark rights of this case, which was no longer than that of the instant accounting firm, based on the settlement of accounts based on the following: (i) the appraisal of the value of the trademark rights of this case, which was no more than that of the instant accounting firm; and (ii) the Defendant’s appraisal of the value of the trademark rights of this case, which was no more than that of the instant accounting firm; and (ii) the Defendant’s appraisal of the value of the trademark rights of this case was no more than that of this case.

Nevertheless, solely based on its stated reasoning, the lower court determined otherwise by determining that the instant settlement agreement constituted a fraudulent act, solely on the grounds as indicated in its reasoning, that E had waived its claim for the settlement money equivalent to its own share among the settlement money through adequate evaluation with the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on a fraudulent act, thereby adversely affecting the conclusion

4. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-dae

Justices Park Sang-ok