2013Da201615 Demurrer, etc. against distribution

Bank of Korea

A

Suwon District Court Decision 2012Na50040 Decided February 1, 2013

February 26, 2015

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Based on the adopted evidence, the court below found that the market price of the apartment of this case was 270,000,000 won at the time of the establishment of the mortgage contract, and with respect to the apartment of this case at that time, the fraudulent act was established within the scope of the balance of the secured debt of this case from the market price of the real estate, and it cannot be deemed that the plaintiff's assertion that the secured debt of this case was not jointly established within the scope of 158,721,407,70 won and the total amount of the secured debt of this case was 168,00,000 won and 150,000 won and 150,000 won and 150,000 won and 150,000 won and 200 won and 2071,70,701,707,000 won and 207,00 won and 207,00 won as of the apartment of this case.

B. However, we cannot agree with the above judgment of the court below for the following reasons.

1) According to the record, the Plaintiff asserted that the registration of the establishment of the establishment of the instant apartment was completed immediately before the establishment of the establishment of the instant neighboring apartment at the same time, and that if the market price of the instant apartment at KRW 270,000,000 was deducted from the maximum debt amount of KRW 168,00,000 from the market price of the instant apartment at KRW 270,000,000, the collateral value of the instant apartment was KRW 100,000,000. In the preparatory brief dated December 27, 2012, which was stated on the third day of the trial of the lower court, at the time of the instant mortgage contract, the market price of the instant apartment at the time of the instant apartment at that time was KRW 270,00,000, the collateral value of the instant apartment at that time was deducted from the secured debt amount of KRW 140,00,000.

Thus, the plaintiff's argument as above includes the argument that the amount of the secured debt of the second secured mortgage was zero won at the time of establishing the mortgage of this case. Thus, it cannot be deemed that the plaintiff did not present any argument as to the amount of the secured debt of the second secured mortgage as determined by the court below.

2) Furthermore, according to the record on the certificate of registration of the instant apartment (Evidence A5), the registration of the establishment of the second collateral security on the ground of the cancellation on June 30, 2010 may be known to the effect that the registration of the establishment of the second collateral security on the ground of the termination on June 30, 2010 was cancelled on July 1, 2010. In the event of circumstances, the document of disposition was prepared to the effect that the second collateral security contract is terminated on June 30, 2010, and there is sufficient possibility that the repayment of the second collateral security right has already been completed prior to the preparation of the document of disposition. In such a case, the maximum debt amount of the second collateral security shall not be deducted in the calculation of the value of the instant apartment as of July 1, 2010,

C. Nevertheless, the court below concluded that the Plaintiff’s above assertion as to the amount of the claim secured by the second collateral and did not present any assertion as to this point, without sufficiently examining the amount of the claim secured by the second collateral at the time of the contract to establish the second collateral, the senior collateral value of the apartment of this case at that time exceeded the market price of the apartment of this case. Such judgment below erred by exceeding the bounds of the principle of logic and experience, exceeding the bounds of the principle of free evaluation of evidence, or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Kim Yong-deok

The Chief Justice Park Jae-young