New Card Corporation

Defendant

Daejeon District Court Decision 201Da10027 Decided October 28, 2011

February 28, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract of donation of KRW 55,00,000 between Nonparty 1 (Non-Party in the judgment of the Supreme Court) and the Defendant on August 5, 2010 shall be revoked. The Defendant shall pay to the Plaintiff the amount calculated by the rate of KRW 16,438,484 as well as KRW 13,39,065 per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

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

1. Existence of the preserved claim;

In full view of the purport of each statement in Gap evidence 1 through 6, the plaintiff entered into a credit card use contract with non-party 1 on January 10, 2010; the debt under the above contract against the plaintiff non-party 1 was 16,438,484 won as of February 15, 201 ( principal 13,39,065 won); the non-party 1's wife 2 succeeded the tenant's status as the non-party 1 on January 14, 2010 to the non-party 1 and transferred the lessee's claim to the non-party 5,000,000 won (hereinafter "non-party 1's lease deposit") to the non-party 20,000 won (the non-party 1's lease deposit was returned to the non-party 20,000 won on April 20, 2010; the non-party 1's claim to return the lease deposit to the non-party 1 (the defendant 2). 201's lease deposit.

According to this, the plaintiff's claim for the use of the credit card against the non-party 1 was incurred before the conclusion of the instant lease agreement, and becomes the creditor's right of revocation.

2. Fraudulent act;

(a) The establishment of a fraudulent act and the intention of doing so;

In addition to the statements in Gap evidence Nos. 6 and Eul evidence Nos. 12 and 13 (including each number), the whole purport of the pleadings is to be added. On April 15, 2010, near the date of entering into the instant lease agreement, non-party 1's small property was KRW 367,007,978, including the plaintiff's claim, but on the other hand, active property was 11,00,000 won, the lease deposit of this case was KRW 55,00,000, the lease deposit of this case was KRW 55,000,000, and the land located in the Dong-dong Special Metropolitan City (number omitted) was 29,119,40-mortgage 19,700 won, the remainder of the lease deposit of this case was 19,519,400 won, and the lease deposit of this case was paid to non-party 3,500,005 won, as seen earlier.

According to this, it is reasonable to view that Nonparty 1 received the refund of the instant lease deposit in excess of the positive property, and then donated KRW 55,00,000 to the Defendant around the beginning of August 2010, when the instant lease contract was concluded between the Defendant and Nonparty 3, which was the time when the instant lease contract was concluded between the Defendant and Nonparty 3. Therefore, it is reasonable to view that the said donation contract was a fraudulent act against the Plaintiff, and Nonparty 1, the obligor, recognized that Nonparty 1, as the obligor, was unable to fully satisfy the obligee’s claim due to the lack of joint security already in the short situation due to the said donation contract. As long as Nonparty 1’s intention of harm is recognized, it is presumed that the Defendant’s bad faith as the beneficiary is presumed.

B. Judgment on the defendant's defense, etc.

1) The defendant's mother borrowed the scholarship, etc. received by the defendant from the defendant to use it as living expenses, etc., and paid the lease deposit under the lease contract of this case on behalf of the defendant. However, the defendant merely thought that the non-party 2 repaid the loan, but the defendant did not assert that the non-party 1's father's debt relationship was harmed to the non-party 1's creditor even with the knowledge of his father's debt relationship.

2) Therefore, since the beneficiary's bad faith is presumed in a lawsuit to revoke a fraudulent act, the beneficiary is responsible for proving his good faith in order to be exempted from his liability. In this case, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical rules and experience rules by comprehensively taking into account all the circumstances such as the relationship between the debtor and the beneficiary, the circumstances or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, the existence of objective materials supporting the act of disposal, and the circumstances after the act of disposal, etc. (see Supreme Court Decision 2007Da74621, Jul. 10, 2008, etc.). However, each statement in the evidence Nos. 6 through 9, and 16 (including each number) are insufficient to acknowledge the defendant's good faith, and there is no other evidence to acknowledge it otherwise. The defendant's defense is without merit.

3) Meanwhile, the Defendant asserted that the instant lease deposit was the Defendant’s mother’s loan to Nonparty 2, and Nonparty 2 was placed in the name of Nonparty 1 at the time when the moving-in report was required, and that the instant lease deposit was not transferred to Nonparty 1. Thus, even if Nonparty 2 received the instant lease deposit and paid it as the lease deposit under the instant lease contract, it cannot be deemed that the Defendant was donated to Nonparty 1. However, on January 14, 2010, Nonparty 2 succeeded to Nonparty 1’s husband’s status as to the Plaintiff’s lease deposit at the Yama-si (hereinafter address omitted), and there is no evidence supporting that Nonparty 2 reserved only the instant lease deposit in the name of Nonparty 2 in the name of Nonparty 2. Thus, this part of the Defendant’s assertion is without merit.

3. Methods and scope of reinstatement;

The scope of revocation of a fraudulent act can be sought within the scope of the claim amount of the revocation creditor, barring special circumstances such as where it is apparent that other creditors demand the return of the object, or where the object is indivisible (see Supreme Court Decision 2007Da61618, Jan. 15, 2009, etc.).

Therefore, the agreement between the defendant and the non-party 1 on donation amounting to KRW 55,00,00,00 shall be revoked within the scope of KRW 16,438,484 equivalent to the amount of credit card usage deposit against the plaintiff. The defendant is obligated to pay to the plaintiff 16,438,484, and the principal amount of KRW 13,39,065, a delay interest rate of KRW 55% per annum from the day following the day when the judgment became final and conclusive to the day of full payment (the plaintiff is liable to compensate the defendant for delay interest rate of KRW 20% per annum from the day following the day when the copy of the complaint of this case is delivered to the day when the judgment ordering the revocation of fraudulent act becomes final and conclusive, and therefore, the obligation to compensate for delay from the day after the judgment becomes final and conclusive and the interest rate of this case does not apply to the legal interest rate of KRW 16,438,484, and it does not apply to the damages for delay.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Han Han-gi (Presiding Judge)