[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant (Law Firm Deputy Superintendent, Attorneys Kang Jin-young, Counsel for defendant-appellant)

February 28, 2013

Changwon District Court Decision 201Gahap3824 Decided June 20, 2012

1. The judgment of the court of first instance is modified as follows.

A. The contract establishing a right to collateral security concluded on June 10, 2008 between the defendant and the non-party 1 (the non-party to the judgment of the Supreme Court) regarding each real estate listed in the separate sheet No. 1 shall be revoked only in the amount of KRW 154,359,416.

B. The defendant shall express his/her intention to transfer the assignment of claims to Nonparty 1 regarding the part of KRW 154,359,416 among the claims listed in the separate sheet No. 2 attached hereto, and shall give notice to the Republic of Korea (competent District Court Deposit Officials) of the assignment of claims.

C. The plaintiff's remaining claims are dismissed.

2. The total cost of a lawsuit shall be three minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

1. Purport of claim

The contract to establish a mortgage concluded on June 10, 2008 between the defendant and the non-party 1 as to each real estate listed in the separate sheet No. 1 shall be revoked. The defendant shall notify the non-party 1 of his/her intention to transfer the claims listed in the separate sheet No. 2, and shall notify the Republic of Korea (a public official in charge of the Changwon District Court)

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Determination on this safety defense

A. Defendant’s defense

The defendant filed an application for voluntary auction on January 20, 209 with respect to each real estate listed in the separate sheet No. 1 (hereinafter "the real estate of this case"). Since at the time of the above application for voluntary auction, the non-party 1 knew that the contract to establish a right to collateral security was concluded with the defendant as to the real estate of this case at the time of the above application for voluntary auction, this lawsuit filed for the reason that such contract to establish a right to collateral security constituted a fraudulent act after one year from the date of the application

B. Determination

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause for revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, that is, the date when the debtor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor, so it is insufficient to say that the creditor was aware of the cause for revocation and that the debtor's legal act was prejudicial to the creditor. In other words, it is necessary to find out that the debtor's legal act was insufficient to say that the creditor was aware of the cause for revocation, and that the debtor's joint security was not sufficient by such legal act, or that the joint security already in shortage was insufficient, making it impossible to fully satisfy the claim, and further, that the debtor

According to the evidence evidence No. 1, the plaintiff filed an application for voluntary auction of the real estate of this case on or around January 2009, and it can be acknowledged that the registration of establishment of a mortgage (hereinafter "mortgage creation of this case") was completed on June 10, 2008 on the copy of the register of the real estate of this case attached to the application form on or around June 10, 2008, under the name of the defendant. However, it is insufficient to find that the plaintiff knew that there was no other property of the non-party 1 at the time of the above application for voluntary auction and it was impossible to fully satisfy the claim due to the plaintiff's act of entering into the mortgage contract of this case after confirming that there was no other property of the non-party 1 at the time of the above application for voluntary auction, and there is no evidence to suspect that the plaintiff had committed the fraudulent act of this case since the date of the lawsuit of this case.

Therefore, the defendant's main defense is without merit.

2. Judgment on the merits

(a) Facts of recognition;

1) Plaintiff’s lending and preparation of notarial deeds

On December 14, 2007, the Plaintiff and Nonparty 1, who were the Defendant’s husband, set as loans KRW 200 million, interest monthly, KRW 200 million, KRW 24% of late December 14, 2008, and the due date on December 14, 2008, drafted a notarial deed of monetary loan loan contract No. 1331 of December 2007 (hereinafter “notarial deed of this case”) with the Defendant on December 31, 207, and drafted a notarial deed of this case as loans KRW 50 million between the Defendant and the Defendant on December 31, 2007, KRW 300,000,000, maturity date, December 31, 2009, Plaintiff, Nonparty 1, Nonparty 2, and joint and several sureties, Nonparty 2 and 3, a joint and several notarial deed of this case (hereinafter “No. 2939 of December 31, 2007”).

On May 27, 2008, the Plaintiff entered into a mortgage agreement with Nonparty 1 on the instant real estate owned by the mortgagee, Nonparty 1, and the maximum debt amount at KRW 500 million with respect to the instant real estate in order to secure the present obligation, such as the obligation based on the No. 2 No. 1 notarial Deed, and the obligation to be borne in the future. On the same day, the Plaintiff completed the registration of the establishment of the neighboring real estate as the Changwon District Court Kim-hae registry Office, No. 46758, May 27, 2008.

2) Nonparty 1’s act of disposing of property

On June 10, 2008, Nonparty 1 completed on June 10, 2008 the registration of creation of a mortgage over the instant real property, which was KRW 500 million on the ground of a mortgage-backed contract concluded on June 10, 2008, the Changwon District Court Kimhae registry Office (No. 51195, Jun. 10, 2008), and the maximum debt amount (50 million).

3) Property status of Nonparty 1

(6) Non-party 1 did not have any specific property other than the real estate of this case at the time of establishing the mortgage contract of this case. On the other hand, as of December 14, 2007, non-party 1: (1) principal and interest of 223,671,232 won = 20 million won + 23,671,232 won = 240 million won 】 24% 】 180 days from December 14, 207 to June 10, 2008; (6) 360 days from 365 days from 365 days from 208 to 365 days from 108; and (3) 50 million won from the date of borrowing the principal and interest of this case; (4) 515,978,082 won from the date of borrowing the loan; and (5) 360 million won from the date of borrowing the principal and interest of this case.

4) Voluntary auction on the instant real property

On May 27, 2008, the Plaintiff’s application for voluntary auction based on the instant right to collateral security (hereinafter “instant auction procedure”) commenced with respect to the instant real estate in Incheon District Court 2009tata, 1999, and on March 29, 2011, the instant real estate was sold in KRW 1,552,30,000. In the instant auction procedure, on April 27, 2011, the said court drafted a distribution schedule with respect to the Plaintiff, the first priority collective security right holder of the instant real estate, the Plaintiff, the second priority collective security right holder of the instant real estate, who was the third priority collective security right, distributed KRW 51,60,986 to the Gyeongnam Bank, the Defendant, the third priority collective security holder of the instant real estate, each of which was KRW 411,60,986.

5) The plaintiff's provisional disposition prohibiting the disposal of the claim

On the other hand, at the Changwon District Court on April 20, 2011, the Plaintiff received a provisional disposition prohibiting the disposal of claims against the Plaintiff, the debtor, and the third debtor as the Republic of Korea (201Kahap161) with respect to the claim for the payment of dividends as stated in the attached Table 2 attached hereto, and the said decision was served on the Republic of Korea as the third debtor at that time.

6) Partial recovery of the Plaintiff’s claim

On March 9, 2009, the Plaintiff applied for a compulsory auction on an automobile owned by Nonparty 1 by Changwon District Court 7676 on March 9, 2009, and received dividends of KRW 18,851,250 on September 22, 2009, the date of distribution in the auction case, and on November 24, 2010 on the basis of the second notarial deed of this case, the Plaintiff issued a seizure and collection order on the right to claim the deposit of Nonparty 1 against the Republic of Korea on November 24, 2010 on the basis of the second notarial deed of this case. However, the Plaintiff received dividends of KRW 40,437,874 on November 20, 201 in the dividend procedure of 201, which was commenced on the ground of seizure competition.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 11, evidence 13 through 20, 23 and 24 (including paper numbers) and the purport of the whole pleadings

B. Determination

(i)the existence of preserved claims;

As seen earlier, the Plaintiff at June 10, 2008, as of June 10, 2008, owned a total of KRW 800,649,314 loans and a claim for the amount of shares per share against Nonparty 1 for a total of KRW 800,649,314, which is the date of the instant mortgage contract. Accordingly, among them, KRW 300,649,314, which is the remainder of KRW 500,00,000,00,000,000

2) The establishment of fraudulent act and the intention of deceptioning

A fraudulent act is established in cases where a debtor in excess of his/her obligation provides a certain creditor with real estate as security so that only such creditor can obtain preferential reimbursement in comparison with other creditors, thereby reducing the joint security of other general creditors (see Supreme Court Decision 2005Da47106, Feb. 14, 2008; Supreme Court Decision 47113, 47120, etc.).

According to the above facts of recognition, as the result of Nonparty 1’s reduction of the joint security of the general creditor by offering the instant real estate, which is the only property in excess of the debt, as a security, the instant mortgage contract constitutes a fraudulent act in relation to the Plaintiff, who is the creditor, and the Defendant’s intention of deception is presumed to

Therefore, the Plaintiff may exercise the right of revocation on the instant mortgage contract against the Defendant, a beneficiary, and seek restitution accordingly.

3) Judgment on the defendant's defense

A) Good faith defenses

Around April 17, 2008, the Defendant became aware of the complicated female relationship with Nonparty 1, who is the husband, and then determined divorce with Nonparty 1 and received consolation money on April 18, 2008, which is the next day. When it was impossible to receive this within the agreed time limit, the Defendant concluded a contract to establish a right to collateral security with the claim of consolation money as the secured claim on the real estate in this case, and was actually divorced thereafter. The Defendant asserted that the conclusion of the instant right to collateral security was unaware of the circumstances of Nonparty 1’s financial bad faith, such as the decision of divorce with Nonparty 1 at the time.

Comprehensively taking into account the evidence Nos. 10, 2, and 3 of evidence Nos. 10, and part of the testimony by Nonparty 1 of the first instance trial witness, Nonparty 1 agreed to pay KRW 250 million within one month, and KRW 250 million until May 30, 2010, respectively, to pay KRW 250 million within one month, and the fact that the instant real estate was concluded on May 27, 2008, and was divorced from the Defendant on May 27, 2009 is recognized.

However, according to the evidence Nos. 1, 12, and 15 (including additional numbers), the plaintiff did not pay KRW 500 million to the plaintiff who acquired the debt from the non-party 3 and Spool. On February 22, 2008, the plaintiff executed a provisional attachment on the real estate of this case, which is owned by the non-party 1, and thereafter completed the registration of creation of the mortgage of the maximum debt amount of KRW 600 million to the non-party 5 who is the non-party 6, and on March 24, 2008, completed the registration of creation of the mortgage of KRW 500 million to the non-party 6 as the non-party 6 as the right to collateral, and again, revoked the registration of creation of the mortgage of the above maximum debt amount of KRW 500 million to the plaintiff on May 26, 2008.

In light of the following circumstances acknowledged by the above facts, i.e., the plaintiff's execution of provisional seizure on the real estate of this case before April 2008, which the defendant himself asserts that the relationship with the non-party 1 was caused by the provisional seizure, and that the non-party 1 created a right to collateral security to the defendant's omission, etc., it is reasonable to view that the non-party 1's wife was aware that the non-party 1's joint security should be less than the one story by entering into a contract to establish the right to collateral security in the name of the defendant as to the real estate of this case, and there is no evidence as to the defendant's improper relationship with the non-party 1 around April 17, 2008, and it is difficult for the defendant to learn the non-party 1's improper relation with the non-party 1's mother until the conclusion of the first instance trial, i.e., the non-party 1 had resided in the defendant's trial (hereinafter address omitted), and there is no evidence to acknowledge the plaintiff 1's arbitrary relation with the non-party 208.

Therefore, the defendant's bona fide defense is without merit.

B) Defenses of non-performance of fraudulent act

The Defendant asserts that the secured claim amount of the instant real estate is KRW 1,179,756,270, and that the secured claim amount of the instant real estate amount is KRW 720,000,000 and KRW 1,222,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won

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 amount of the secured debt at the market price, and if the amount of the secured debt exceeds the value of the real estate, the transfer of the real estate concerned cannot be deemed a fraudulent act. Unlike the defendant's assertion, the amount of the secured debt at this point is not the maximum debt amount, but the amount of the secured debt actually occurred, in the case of a mortgage (see Supreme Court Decision 2000Da42618, Oct. 9, 200

In light of the above legal principles, Gap evidence Nos. 23 and 24, comprehensively taking account of the purport of the argument as a whole, the market value of the real estate of this case at the time of entering into the mortgage contract of this case is KRW 1,242,606,270, and the amount of credit of the Gyeongnam bank is KRW 588,246,854, and the amount of credit of the plaintiff is KRW 1,088,246,854, which actually occurred at the time of entering into the mortgage contract of this case. Thus, the real estate value of this case is more than KRW 154,359,416, and the amount of credit of the plaintiff is more than KRW 154,359,416, which is the amount of credit of this case's real estate of this case which is provided as joint collateral security of general creditors. Accordingly, the part equivalent to the above excess amount constitutes a fraudulent act of KRW 345,6484,05.

(iv) the method of revocation of fraudulent act and restitution to original state;

In the event that a mortgage contract is cancelled as a fraudulent act, if a beneficiary receives a dividend through an auction procedure, the beneficiary shall be ordered to return the dividend if the beneficiary received the dividend. In the event that the dividend table was finalized but the beneficiary fails to receive the dividend in reality, the method of restitution following the exercise of the right to revoke revocation should be done by returning the right to claim the dividend acquired by the beneficiary to the debtor. In conclusion, it should be the form of demanding the debtor to notify the transfer of the dividend payment claim and the transfer of the claim (see, e.g., Supreme Court Decisions 97Da8687, Oct. 10, 1997; 2004Da67806, May 27, 2005).

The auction court distributed KRW 411,60,986 to the defendant upon the commencement of the auction procedure as to the real estate of this case. However, the creditor did not receive dividends from the plaintiff, the debtor, and the third debtor due to the provisional injunction against disposal of claims against the plaintiff, the defendant, and the third debtor in the Republic of Korea. Thus, the contract establishing a mortgage concluded on June 10, 2008 between the defendant and the non-party 1 as to each real estate listed in the separate sheet No. 1 shall be revoked only in the amount of KRW 154,359,416, and the defendant shall be obligated to notify the non-party 1 that he/she transferred the claim of KRW 154,359,416 among the claims listed in the separate sheet No. 2 and that he/she transferred the claim to the Republic of Korea (a public official of the Changwon District Court under jurisdiction)

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair in conclusion, it is accepted in part of the defendant's appeal and it is modified as above.

[Attachment]

Judges Kim Kim (Presiding Judge)

(1) On December 31, 2007, the Plaintiff sought interest on the loan from January 1, 2008.