2015Da223480 Collections

Seocho-gu Seoul Metropolitan Government

S. S.C.

Seoul High Court Decision 2014Na2025618 Decided June 2, 2015

September 23, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the third ground for appeal

A. In determining a fraudulent act, the lower court determined that: (a) as to the Defendant’s assertion that the instant trust agreement and the instant business agreement and a series of amendments thereto should be deemed the same legal act; (b) there was no evidence suggesting that the instant business agreement only provides trust property to the person who designated the owner of the trust property; and (c) one bank (hereinafter “one bank”) among the lender was anticipated to be a trustee; and (b) the provisions of Articles 10 subparag. 2 and 15(5) and (6) of the instant business agreement are not sufficient to deem that the contents of the instant trust agreement, such as the trust period, the reason for disposal of the trusted real estate, the disposal price, the disposal method, and the method of disposal, are not specified or that there was no method and standard to specify the contents of the instant trust agreement, and in particular, the instant trust agreement and the lender’s discretion are widely determined; and (c) the instant business agreement and the instant trust agreement cannot be seen as a series of terms and conditions that are identical to the instant trust agreement and the instant trust agreement, which are not subject to the trust agreement and the instant trust agreement.

Furthermore, the lower court determined that the instant trust agreement constituted a fraudulent act, inasmuch as the ownership of the instant building was transferred from triddr construction to tridrity bank according to the instant trust agreement, at the time of the conclusion of the instant trust agreement, at the time when tridrity Construction Co., Ltd. (hereinafter referred to as “tridrity Construction”) was in excess

B. However, the lower court’s determination is difficult to accept.

(1) The reasoning of the lower judgment and the record reveal the following.

(A) The instant business agreement was extended to KRW 165 billion in total from the lender for the purpose of raising funds necessary for the acquisition of the project site and the construction cost (in this case, KRW 184 billion was increased to KRW 1,84 billion in total from the lender for the first alteration contract dated September 27, 2006). Of them, the Defendant, one bank, one bank, and four financial institutions, one bank, one of which is the lender, shall be the lender, and one bank shall be the financial manager, and the lender shall be the party, and the lender shall be the principal contents of the agreement on the loan and the establishment of a security for the loan, etc.

(B) According to the instant business agreement, the borrower (T&D construction) entered into a security trust agreement with the real estate trust company on the project site as security for the loan (Article 10 subparagraph 1, and pursuant thereto).

Article 10 Subparag. 2 and Article 15(5) of the Act provides that a security trust or a disposal trust shall be established to a person who designates an unsold building, etc., in case where the principal and interest of a loan not repaid until the approval date for use of the main complex building exists due to the poor sale of the instant business (Article 10 Subparag. 2 and Article 15(5)). In addition, the instant business agreement stipulates in detail the preferential beneficiary and the right to benefit therefrom regarding the trust contract for the unsold building, etc., and the lender may dispose of the unsold building by means of discount sale, etc. in consultation with the construction company (Article 15(6)).

On the other hand, Article 10 of the Business Agreement provides various kinds of security obligations of the borrower, such as security trust contract for the business site (No. 1), creation of additional trust for the unsold buildings, etc. (No. 2), contract for the pledge of deposit claims (No. 3), creation of pledge of shares held by the shareholders of the borrower (No. 4), and joint and several guarantee obligations of the representative director of the borrower (No.

(C) Subsequent to the instant business agreement, the second alteration contract was concluded on June 8, 2009, which extended the maturity of the existing loan, but the loan maturity extended without repaying the loan, etc. by the approval date for use of the instant main complex building was multilateral, and the third alteration agreement was concluded on July 2, 2009, which extended the maturity date, and the instant trust contract was concluded on unsold buildings, etc.

(D) The instant trust agreement was concluded with a view to ensuring the fulfillment of obligations owed by Samddddd Construction, with a view to managing trust property and settling debts in certain cases. The instant trust agreement was concluded between the executor and the borrower under the instant business agreement as well as between Samdddr Construction and Han Bank, which is the lender and the caretaker, as in the trust agreement for the project site. This is based on the fact that the instant business agreement was determined by the borrower to set up a trust to the "person designated by the borrower" for the unsold buildings, etc.

In addition, the preferential beneficiary and the right to benefit as stipulated in the instant trust agreement are the same as stipulated in the instant business agreement, and the real estate subject to the instant trust agreement seems to be subject to the scope of unsold buildings, etc., for which the instant business agreement was scheduled.

(2) In light of these circumstances, the grounds cited by the lower court as the grounds that the instant trust agreement, the instant business agreement, and the series of amendments thereto cannot be deemed as the same legal act is difficult to obtain for the following reasons.

(A) One bank, the largest lender and the fund manager under the instant business agreement, is not only the trustee of the trust contract for the project site, but also the person designated by the substitute owner pursuant to the instant business agreement, and seems to have been the trustee of the instant trust agreement. The mere fact that the instant business agreement entrusts trust property to the “person designated by the substitute owner,” it cannot be said that the instant business agreement and the instant trust agreement are different between the parties.

(B) The instant trust agreement was concluded with the same content as the instant trust agreement with respect to the trust purpose, trust real estate, priority beneficiary, and the right to benefit therefrom, which are the core elements specifying the contents of the trust agreement. Although the trust period, the reason for disposal, disposal price, disposal method, and procedure of disposal of the trust real estate, as pointed out by the lower court, are not specifically stipulated in the instant trust agreement, it cannot be deemed that the instant trust agreement does not specify or specify the core content of the instant trust agreement, or that there is no method and standard prescribed therein. Furthermore, it is difficult to deem that the grounds, disposal price, method, and procedure of disposal of the trust real estate stipulated in the instant trust agreement, excluding the trust period, are close to the general provisions or deviates from the scope of the trust agreement anticipated in the instant

(C) Meanwhile, the case where there exists the principal and interest of loan and the unpaid construction cost not paid until the date of approval for use due to the failure to sell the main business in lots under Article 15(5) of the instant business agreement is close to an element of specifying various methods of providing security as to the borrower's obligation to provide security, rather than a "requirements for concluding a trust contract for unsold buildings, etc.".

(3) In addition, according to the aforementioned circumstances, the main complex building of this case can be deemed to have been made with a series of business agreements, trust contracts, and funds financed therefrom, rather than property owned by the person with own funds. Thus, without considering the overall process of acquisition, it cannot be deemed reasonable to determine the fraudulent act by separating the trust contract of this case from the trust contract of this case and comparing the status of the general creditors immediately before and after the above (see Supreme Court Order 2010Ma2066, Oct. 11, 2012). Nevertheless, for reasons indicated in its reasoning, the lower court did not consider the relationship between the trust contract of this case as a separate contract with the business agreement of this case, the process of financing conducted before and after it, and the continuation of business through it, without considering such circumstances as the relationship between the two parties, the process of financing conducted after and after it, and the continuation of business. In so doing, it did not err in the misapprehension of legal principles as to the object of revocation, thereby affecting the conclusion of the trust contract of this case.

2. Conclusion

Therefore, without further proceeding to decide on the remaining 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.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok