Credit Guarantee Fund (Attorney Jeong-jin, Counsel for the plaintiff-appellant)

Defendant (Attorney Yang Jae-soo, Counsel for the defendant-appellant)

December 14, 2004

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The sales contract concluded on May 1, 2003 between the non-party 2 and the defendant with respect to the real estate stated in the separate sheet shall be revoked. The defendant will implement the procedure for the cancellation registration of transfer of ownership completed on May 23, 2003 with respect to the real estate listed in the separate sheet to the non-party 2.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence 1 through 6:

A. Nonparty 2 obtained a loan of KRW 300 million for corporate purchase funds and KRW 50 million for general funds from the Choung Bank. For the guarantee for payment of the loan, the credit guarantee agreement between the Plaintiff and the Plaintiff was concluded with the maturity of June 28, 2001, which was extended on June 27, 2002 (after the maturity of June 27, 2003), and the credit guarantee agreement concluded on June 12, 2002 with the maturity of KRW 42.5 million for the guarantee period of KRW 30 million, and the credit guarantee agreement was concluded on June 11, 2003 with the maturity of KRW 30,000 for the repayment of principal on May 16, 2003, the Plaintiff recovered part of KRW 105,500 for the repayment of principal and interest of KRW 2083,6385,206,300 from the date of repayment to the Plaintiff on June 16, 2003.

B. Nonparty 2 transferred, on May 23, 2003, the registration of the real estate indicated in the separate sheet (hereinafter “instant apartment”) which is the only property immediately after the occurrence of the credit guarantee accident, to the Defendant, who is the wife, on the ground of the sale on May 1, 2003, under the receipt of No. 67239, May 1, 2003.

2. Determination

A. The parties' assertion

The plaintiff asserts that, after the claim for reimbursement against the non-party 2 was made, the non-party 2 transferred the ownership of the apartment of this case, which is its sole property, to the defendant, constitutes a fraudulent act against the plaintiff, and since the defendant's bad faith is presumed, the contract between the defendant and the non-party 2 should be revoked, and the defendant should cancel the registration of ownership transfer for

In regard to this, the defendant asserted that the apartment of this case is the performance of the existing obligation and that even if the registration is valid, it does not constitute a fraudulent act because the apartment of this case is a property held in trust by the non-party 1 in the future in the non-party 2 and the registration of ownership transfer in the non-party 2 is null and void.

B. Determination

(1) Whether the instant apartment was trusted in title to Nonparty 2

6. The non-party 1 0. 2 and the non-party 2 0. 7. 1 and the non-party 2 0. 1 and the non-party 2 0. 1 and the non-party 2 0. 1 and the non-party 4 0. 7. 1 and the non-party 2 were 0. 9. 1 and the non-party 2 were 0. 5 and the non-party 1 and the non-party 2 were 0. 9 and the non-party 2 were 0. 1 and the non-party 1 and the non-party 2 were 0. 5 and the non-party 1 and the non-party 2 were 0. 9 and the non-party 1 and the non-party 2 were 0. 9 and the non-party 1 and the non-party 2 were 0. 1 and the non-party 2 were 1 and the non-party 9. 7. 200. 1 and the non-party 2. 2.

In light of the fact that, at the time of the payment of the sale price to the above association by Nonparty 2, a significant portion of the purchase price seems to have been paid to Nonparty 1’s money, and that Nonparty 1 appears to have been the owner of the apartment lot, the payment of registration expenses, the conclusion of the lease contract and the loan, etc., it is reasonable to deem that the apartment of this case was the title trust by Nonparty 1 to Nonparty 2

(2) Whether the registration of transfer of ownership against the defendant by the non-party 2 constitutes a fraudulent act

As long as Nonparty 2 is deemed to have concluded a sales contract for the apartment of this case under his name after being entrusted with the name of the buyer in the name of the buyer, and completed the registration of ownership preservation, Nonparty 2’s implementation of the registration procedure for ownership transfer to the Defendant at the request of Nonparty 1, the title truster, was conducted by Nonparty 2 in the course of restoring the real name of registration, and thus, it cannot be deemed to constitute a fraudulent act (Supreme Court Decisions 2001Da1157 Decided May 8, 2001; 95Da1965 Decided September 20, 196).

[Plaintiff-Appellant] asserted that the title trust agreement entered into between Nonparty 2 and Nonparty 1 is effective in itself, and that the title trust agreement entered into between Nonparty 2 and Nonparty 1 is null and void. Thus, although Articles 3 and 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name did not provide for preventing the title trustor from reverting ownership to the title trustor (Supreme Court Decision 2000Da21123 Decided December 26, 2002), it appears that Nonparty 1 entered into the contract title trust agreement with Nonparty 2 and the said association could not know the existence of the title trust agreement, it constitutes unjust enrichment by Nonparty 2, and thus, Nonparty 2 is obligated to return the apartment's ownership as unjust enrichment by Nonparty 1, and thus, it cannot be accepted as a result of the obligee's collusion with other creditors, except for the case where the obligor redeems the debt to the non-party 2, as long as it appears that the other party to the contract did not have been able to obtain the title trust agreement from the said association.

In this case, it seems that Nonparty 1 trusted the name of Nonparty 2 to Nonparty 1, because Nonparty 1 could not become a partner of the above union, was entitled to the right to the apartment sold to Nonparty 2 after having Nonparty 1 become a partner of the above union. However, even if the title trust agreement between Nonparty 1 and Nonparty 2 is null and void, the agreement that Nonparty 1 and Nonparty 2 agreed to receive the right to the right to the title trust agreement remains a valid obligatory agreement, and as long as Nonparty 2 appears to have paid the debt according to the principal of the said debt, it shall not be deemed a fraudulent act.

3. Conclusion

Thus, the plaintiff's claim on the premise that the non-party 2 completed the registration of ownership transfer to the defendant constitutes a fraudulent act is dismissed.

[Attachment List omitted]

Judges Lee Dong-sung