Young Life Insurance Co., Ltd. (Law Firm New Daegu, Attorney Lee Young-young, Counsel for the defendant-appellant)

Defendant 1 and one other

March 23, 2010

Daegu District Court Decision 2009Kadan30 decided October 13, 2009

1. The plaintiff's appeal is all dismissed.

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

The judgment of the first instance shall be revoked. The contract of donation concluded on May 20, 2005 with respect to 2/3 shares of each real estate listed in the separate sheet (hereinafter “instant real estate”) between Defendant 1 and the Nonparty shall be revoked. The contract of donation concluded on May 20, 2005 shall be revoked. Defendant 1 shall pay to the Plaintiff the amount calculated by the rate of 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment, and Defendant 2 shall implement the procedure of registration of cancellation of the registration of the establishment of the neighboring real estate which was completed on August 1, 2007 as to 2/3 shares of the instant real estate.

1. The plaintiff's assertion

The Plaintiff is a creditor against the Nonparty. The Nonparty, on May 20, 2005, donated 2/3 shares of the instant real estate, which is one of its sole real estate, to Defendant 1, his wife, and Defendant 1 completed the registration of ownership transfer under his name on the 24th of the same month. Defendant 2, despite being aware of such circumstances, completed the registration of ownership transfer on August 1, 2007 under his name the registration of creation of a mortgage over KRW 50,00,000 under the maximum debt amount. Thus, the said donation contract between Defendant 1 and the Nonparty should be revoked as a fraudulent act, and Defendant 1 has a duty to compensate for its equivalent value, and Defendant 2 is a subsequent purchaser of bad faith, and is obligated to cancel the registration of establishment of a mortgage.

2. Determination as to the legitimacy of the instant lawsuit

According to Articles 584 and 406 of the Debtor Rehabilitation and Bankruptcy Act, after a decision to commence an individual rehabilitation procedure is made, the debtor shall exercise the avoidance power, and the court may order the debtor to exercise the avoidance power, at the request of the creditor or rehabilitation commissioner or ex officio. When the creditor's revocation lawsuit filed by the individual rehabilitation creditor is pending at the time of the decision to commence the individual rehabilitation procedure, the lawsuit shall be interrupted until the takeover of the individual rehabilitation procedure or the termination of the individual rehabilitation procedure. In light of this, after the decision to commence the individual rehabilitation procedure is made, the creditor shall exercise the avoidance power aimed at the equal repayment to the total creditor, and the individual rehabilitation creditor who is unable to receive repayment or require repayment may not file a lawsuit for the revocation of fraudulent act with the aim of preserving the liability assets for each individual claim on the premise that the individual rehabilitation creditor who is not able to obtain repayment or demand repayment.

However, in full view of the purport of the arguments in the evidence Nos. 4, 5, and 8, the non-party did not dispute between the parties, or in full view of the purport of the entire arguments, the non-party was subject to the decision to commence individual rehabilitation procedures as of February 19, 2008 by the Daegu District Court 2007da45991, the plaintiff was recorded in the list of creditors in the above individual rehabilitation procedures, the non-party was subject to the decision to authorize the repayment plan by the above court on June 4, 2008, and the above individual rehabilitation procedures have not been abolished until now, and the lawsuit in this case was filed on January 5, 2009. Thus, the plaintiff who is an individual rehabilitation creditor of the non-party cannot file a lawsuit for revocation of the fraudulent act. Thus

3. Conclusion

Therefore, the lawsuit of this case is dismissed, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment of List]

Judges Kim Jong-tae (Presiding Justice)