(영문) 대전지방법원 서산지원 2017. 10. 19. 선고 2017가합50005 제1민사부 판결

2. The Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed as of August 25, 2016 under the receipt of No. 35391, with respect to the real estate stated in the attached Form B, to Company B.

3. The costs of lawsuit shall be borne by the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. On September 21, 2015, the C Regional Housing Association Establishment Promotion Committee (hereinafter referred to as “Establishment Promotion Committee”) and B Co., Ltd. (hereinafter referred to as “B”) concluded a contract on the recruitment of cooperative members (hereinafter referred to as “instant contract on the recruitment of cooperative members”) with the Plaintiff on behalf of the Plaintiff while promoting the project of the regional housing association in Seo-si, Seo-si and Seo-si, Seo-si, the local housing association.

Article 3 (Period of Service and Commencement of Business) (2) The plaintiff is responsible for the recruitment of union members and the schedule of business necessary for the recruitment of union members, such as a promotion plan for the recruitment of union members, and the plaintiff shall submit a written plan for recruitment of union members, etc. at the request of the Establishment Promotion Committee and B.Article 4 (Scope of Services) The scope of the plaintiff's business is limited to the recruitment of union members of Do Council members at Seosan City, Seosan, and the plaintiff will provide the following services to the establishment Promotion Committee and B. ① The Promotion Committee and B provides various promotion and promotional activities related to the recruitment of union members and the recruitment of union members, and the establishment Promotion Committee and B provide the public relations center, M/H model and office to ensure that the plaintiff does not interfere with the recruitment of union members.In the early stage of the business of Article 16 (Special Agreement), the necessary money at the request of the Promotion Committee and B will be paid in advance by the plaintiff, which shall be paid on the agreed date in the form of loan promotion committee and B.

B. On November 20, 2015, B awarded a contract for the construction of a new building of an office and model ices Co., Ltd., Ltd. (hereinafter referred to as “Liices”), and Hiice Co., Ltd completed the construction of a new building of an office around March 2016 (hereinafter referred to as “instant model ices”).

C. B requested the Plaintiff to grant a loan to the Plaintiff pursuant to Article 16 of the instant membership recruitment contract, and the Plaintiff extended a total of KRW 1,345,780,318 to B by May 2016.

D. The Plaintiff requested B to provide the instant model voucher pursuant to Article 8 of the instant contract for the recruitment of union members on behalf of the Plaintiff, but failed to pay the construction cost of KRW 1,357,120,000 to the original contractor, the Plaintiff was entirely unable to use the instant model voucher.

E. When the Plaintiff was unable to normally recruit union members because it was unable to obtain a model voucher and office, it notified the establishment promotion committee and B of the termination of the instant membership recruitment contract at least twice on July 22, 2016 and August 4, 2016, and requested the return of KRW 1,345,780,318 of the loan.

F. On July 29, 2016, B entered into a real estate sales contract with the Defendant to sell the instant model housing in the amount of KRW 1.39 billion to the Defendant (hereinafter “instant sales contract”) and completed the registration of ownership transfer with respect to the instant model housing in the name of B on August 25, 2016, after completing the registration of ownership transfer in the name of the instant model housing in the name of B on the same day.

G. During the process of concluding the instant sales contract, the Defendant, B, and C, and C.C. directly paid the purchase price of the instant model E.C., and the down payment of KRW 100 million on the date of the contract, and the intermediate payment of KRW 300 million on the basis of the instant model E.C. The Defendant agreed to pay the remainder of KRW 990 million to E.C. within one month after obtaining the authorization and permission of the regional housing association business. The Defendant paid KRW 100 million on July 29, 2016 and the intermediate payment of KRW 100 million on August 31, 2016, respectively.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 14 (including each number, hereinafter the same shall apply), Eul's entries in 4 through 9, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. B, in excess of the debt, concluded the instant sales contract with the Defendant and disposed of the instant model voucher, which is its sole real estate, to the Defendant. As such, the instant sales contract should be revoked as a fraudulent act detrimental to the general creditors in B, and the Defendant is obliged to implement the procedure for the cancellation of ownership transfer registration in the name of the Defendant, which was completed with respect to the instant model voucher due to the restoration of its original state following the revocation of the fraudulent act.

B. Meanwhile, the instant sales contract is invalid not only because it did not go through a legitimate resolution of the board of directors but also is not concluded by E, the representative director of B. Therefore, the registration of transfer of ownership in the name of the defendant with respect to the model right of this case shall be cancelled as the registration invalidation of the cause for invalidation. Since B does not exercise the right to claim the cancellation registration of transfer of ownership against the defendant, the plaintiff seeks implementation of the procedure for cancellation registration of transfer of ownership by subrogation of B in order to preserve

3. Determination on the revocation of fraudulent act and the claim for restitution

A. Determination on the cause of the claim

(i)the degree of any preserved claim;

The Plaintiff loaned KRW 1,345,780,318 in total to B as seen earlier. As such, the above loan claims constitute a preserved claim for revocation of a fraudulent act.

(2) The debt excess status B

In full view of the purport of the arguments in Gap's evidence Nos. 4, 6, and 9, Eul's evidence Nos. 23, the fact-finding on the Seosan market and the response to the order to submit tax information by this court, it is recognized that the defendant had owned the Model Nos. 1,345,780,318 won as active property at the time of the conclusion of the sales contract of this case, while the defendant was holding the Model Nos. 1,345,780,318 won as active property at the time of the conclusion of the sales contract of this case. However, it is recognized that the small property was not in excess of the debt by bearing the debt of at least KRW 2,702,90,318 as active property at the time of the conclusion of the sales contract of this case.

(iii)the intent to commit fraudulent act and to commit suicide;

An obligor’s act of selling real estate, which is one of his/her sole property, and replacing it with money that is easily consumed by the obligor, constitutes a fraudulent act against the obligee, barring any special circumstances, and thus, the obligor’s intent of deception is presumed (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24,

B The act of selling real estate, the only property of which is one of the obligees, under the condition that B has already been discharged from debt, is an act of harming the general obligees, and the intention of harming B is presumed.

B. Determination as to the defendant's bona fide defense

The defendant did not know at all that the sales contract of this case constitutes a fraudulent act.

In a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proof against the beneficiary that the beneficiary was unaware of the fraudulent act, and in order to recognize that the beneficiary was bona fide at the time of the fraudulent act, evidence, etc. supporting objective and acceptable should be supported. On the other hand, only the statement, etc. of the debtor's unilateral statement or merely a third party's explanation should not be readily concluded that the beneficiary was bona fide (see, e.g., Supreme Court Decision 2004Da61280, Jul. 4, 2006).

Evidence Nos. 1 through 14, Nos. 5, 10 through 15, and 23, respectively, the purport of the whole pleadings

In light of the circumstances as seen above, i.e., (i) the instant model was newly constructed by B for the purpose of promoting the regional housing association project of B as a model house of the apartment complex of the regional housing association; and (ii) the Defendant appears to have been aware of the fact that the regional housing association project of B promoted was nonexistent; and (iii) the Defendant did not receive 1,357,120,000 won from B for the instant model house construction project, and the Defendant did not directly pay 1,357,000 won to the third party designated by C&C for the instant model construction project; and (iv) during the process of concluding the instant sales contract, the Defendant did not have been aware of the fact that the Plaintiff would have been able to receive 1,357,120,000 won for the instant model construction project, and the Defendant did not directly pay 1,390,000 won for the instant model construction project under the agreement with C&C, and thus, it did not appear that the Defendant would have been able to pay 3, as a new model of the instant model.

C. Sub-committee

Ultimately, the instant sales contract should be revoked as a fraudulent act detrimental to the general creditors in B, and the Defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration in the name of the Defendant with respect to the instant real estate to restore to its original state following the revocation of fraudulent act (as long as the Plaintiff’s fraudulent act was revoked and the claim for restitution was accepted, the claim for registration of cancellation of ownership transfer registration by subrogation of the obligee

C. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.