Korea Technology Finance Corporation (Attorney Lee Dong-chul, Counsel for defendant-appellant)

Defendant

December 8, 2005

Daejeon District Court Decision 2005Gahap293 Delivered on August 4, 2005

1. The plaintiff's appeal is dismissed.

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

Of the judgment of the court of first instance, the part against the defendant shall be revoked. The contract to establish a right to collateral security concluded on June 14, 2004 with respect to real estate indicated in the attached Form between the defendant and the co-defendant 1 of the court of first instance shall be revoked, and the defendant shall implement the procedure to register cancellation of the registration of the establishment of a right to collateral security completed on June 14, 2004 with respect to real estate listed in the attached Form

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties or in full view of the overall purport of each entry and pleading set forth in Gap evidence 1 to 11, Eul evidence 1 to 3, Eul evidence 5 to 7 (including each number, if any).

(a) Credit guarantee agreement and subrogation;

(1) On December 29, 199, the Plaintiff entered into a credit guarantee agreement with Co-Defendant 2 Co-Defendant 2 in the first instance trial to December 29, 200 (the guarantee period has been extended by up to December 29, 2004 due to the extension of the period of four times thereafter) with the principal of credit guarantee at KRW 42,50,00,000, with the credit guarantee period of KRW 200 million from May 25, 2000 to May 25, 2005, with the principal of credit guarantee amount of KRW 99,99,000,000,000 (the credit guarantee principal has been reduced by the maximum amount of credit guarantee over three times thereafter). The credit guarantee agreement was concluded from October 29, 201 to December 14, 2001, with the respective credit guarantee period of KRW 100,000,000,000.

(2) On November 13, 2003, after the Co-Defendant 1 of the first instance trial taken office as the representative director of the Co-Defendant 2 of the first instance trial on November 13, 2003, the Co-Defendant 1 of the first instance trial jointly and severally guaranteed all the obligations, including the indemnity amount to be borne by the Co-Defendant 2 of the first instance trial to the Plaintiff.

(3) Under the above credit guarantee agreement, in the event that a joint defendant 2 corporation of the first instance did not perform the obligation to repay the loan obligation to the Industrial Bank of Korea, which is a lending bank, at the time of the above credit guarantee agreement, and the Plaintiff subrogated for the loan obligation, the joint defendant 2 corporation of the first instance court determined that the Plaintiff reimburses the Plaintiff for the principal of the loan and the amount of damages for delay and expenses at the interest rate prescribed by the Plaintiff from the date of the implementation of the obligation. The overdue interest rate determined by the Plaintiff is 14% per annum from November 30, 2004 to three months after the repayment of the guaranteed obligation, and 16% per annum thereafter.

(4) Co-Defendant 2 of the first instance trial secured each credit guarantee statement issued by the Plaintiff pursuant to each of the credit guarantee agreements in this case, with each of the credit guarantee statements issued by the Plaintiff on December 29, 199; KRW 50 million from the Industrial Bank of Korea on May 29, 200; KRW 60 million on October 12, 2001; however, the credit guarantee accident occurred on May 25, 2004; the Industrial Bank of Korea notified the Plaintiff on June 29, 2004; and accordingly, on November 30, 2004, the Plaintiff demanded payment on November 30, 2004 to the Industrial Bank of Korea on the aggregate of KRW 622,49,00 won (= KRW 450,99,000 + KRW 99,000 + KRW 3681,74681,7816,7816,6816).

(5) Under the above credit guarantee agreement, when a joint defendant 2 corporation of the first instance trial has not been released from the liability to discharge the guaranteed obligation due to the failure to perform the obligation within the given period, the Plaintiff may collect an additional guarantee fee at the rate determined by the Plaintiff from the joint defendant 2 corporation of the first instance trial to the date immediately preceding the payment date of the guarantee fee. Since the additional guarantee rate determined by the Plaintiff is 1.4% per annum, the additional guarantee fee to be paid by the Plaintiff to the Plaintiff by the joint defendant 2 corporation of the first instance on May 25, 2000 is 713,410 won (=9,99,000 x 1.4% x 1.4% x 186/365 days). The additional guarantee fee to be paid under the above credit guarantee agreement concluded on October 12, 2001 x 883,720 billion won (i.e., 48,000 won) x 36% x 4.36%

(6) The Plaintiff disbursed KRW 3,770,780 as substitute payment to exercise and preserve the right to reimbursement against Co-Defendant 2 of the first instance trial and its joint and several sureties. Of these, Co-Defendant 2 of the first instance trial paid KRW 155,210 and KRW 8,100 respectively to Co-Defendant 1 of the first instance trial and remaining KRW 3,616,470 (=3,770,770,780-15,210-8,100).

(7) Therefore, the amount of the indemnity amount to be borne by Co-Defendant 1 of the first instance court, a joint surety of Co-Defendant 2 of the first instance court, against the Plaintiff is 643,845,284 won and 638,631,684 won among them, 14% per annum from November 30, 2004 to March 30, 2005, and 20% per annum from the next day to the date of full payment.

(b) Registration, etc. of establishment of neighboring real estate indicated in the attached Form;

(1) On February 28, 2003, Co-Defendant 1 of the first instance court borrowed interest of KRW 500,000,000 per month from the Defendant and on May 28, 2003. On April 30, 2003, in borrowing additional KRW 70,000,000 from the Defendant, the sum of KRW 30,000,000 per month interest and KRW 70,000,000 per month was determined as of December 31, 2003.

(2) On June 14, 2004, the Co-Defendant 1 of the first instance court concluded a mortgage agreement between the Defendant and the joint defendant 1 of the first instance court with a maximum debt amount of KRW 150 million with respect to the real estate indicated on his own ownership in order to secure the Defendant’s claim, and completed the registration of creation of a neighboring mortgage by the Suwon District Court No. 63718, Jun. 14, 2004, which was accepted on June 14, 2004.

(3) The co-defendant 1 of the first instance trial owned the real estate as the sole active property at the time of the above mortgage contract, but (2) in this regard, he was liable for the debt of 312 million won with respect to the amount of the maximum debt, which is 10 million won against the Defendant and 850 million won with respect to the Industrial Bank of Korea (finally, the amount was 638,631,684 won) against the Defendant and the amount exceeding the market price of the attached real estate (However, there was no registration of entry of provisional attachment with respect to the real estate stated in the attached Form).

(4) The defendant, at the request of co-defendant 1 of the first instance court, was aware of the co-defendant 1 of the first instance court's co-defendant 1, who was working at the same workplace, only lent KRW 100 million to co-defendant 1 of the first instance court's co-defendant 1, and continued a financial transaction with co-defendant 1 of the first instance court, or did not have a relationship of friendship, personal relationship or relationship.

2. Determination:

A. Determination on the right of revocation to be preserved

(1) In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future. In the event a claim has been created by realizing the probability in the near future, the claim may also be the preserved claim of the obligee’

(2) In the instant case, even if the claim for indemnity against the co-defendant 1 of the first instance court was not yet created at the time when the Co-defendant 1 of the first instance court entered into the instant mortgage contract with the Defendant, there was a credit guarantee relationship, which is a legal relationship which serves as the basis for establishing the right to indemnity, at that time. It was highly probable that the Plaintiff, the debtor, co-defendant 1 of the first instance court, had already been able to exercise the right to indemnity by subrogation, such as the occurrence of a credit guarantee accident where the Plaintiff, who is a co-defendant 1 of the first instance court, would incur a liability for indemnity against the Plaintiff in the near future, because the financial condition of the debtor, which is the first instance court's co-defendant 1, becomes worse, and it is highly probable that the instant claim for indemnity was created after about five months thereafter. Thus, the Plaintiff'

B. Determination as to the establishment of fraudulent act

As seen earlier, the Co-Defendant 1 of the first instance trial, in excess of the obligation, offered real estate indicated in the separate sheet for the Defendant as collateral, to the Defendant only by having the Defendant preferentially repayed, thereby causing the reduction of the joint security of other general creditors. Barring any special circumstance, it constitutes a fraudulent act against the Plaintiff, who is a general creditor, and the Defendant also knew that it would be prejudicial to the Plaintiff at the time of the instant contract to establish a collateral security.

C. Judgment on the defendant's bona fide defense

When concluding the instant mortgage contract, the Defendant did not know that Defendant 1’s act of offering the collateral was harmful to the obligee, which is the co-defendant 1 of the first instance court, and thus, himself is a bona fide beneficiary.

In full view of the purport of the argument in evidence Nos. 6 and 7, the defendant's joint defendant 1 of the first instance trial at the time of lending the above amount to the co-defendant 1 of the first instance trial at the time of Apr. 30, 2003, and the co-defendant 1 of the first instance trial was not an officer or employee of Co-defendant 2 of the first instance trial at the time of November 13, 2003, and was assigned to the co-defendant 2 of the first instance trial at the time of Dec. 13, 2003 as the representative director of the Co-defendant 2 of the first instance trial at the time of December 2003, the defendant did not deposit the above amount to the co-defendant 1 of the first instance trial at the time of the second instance trial until 00,000 won as well as the last day of the second instance judgment at the time of 200,000 won deposited in the account of the defendant's non-indicted 2 of the first instance trial at the second instance trial.

As seen above, the facts revealed in the above facts and the facts. ① The Defendant lent the instant money to the co-defendant 1 of the first instance court prior to the appointment as the representative director of the Co-defendant 2 of the first instance court and the addition as a joint guarantor of the credit guarantee agreement of this case. At that time there is no evidence to deem that the financial standing of the Co-Defendant 1 of the first instance court or the first instance court co-defendant 2 of the first instance court has deteriorated. ② The Defendant merely lent the instant money two times with the introduction of the former workplace rent, but it cannot be deemed that there was a continuous transaction relationship with Co-Defendant 1 of the first instance court, or a relationship of friendship and friendship with Co-Defendant 1 of the first instance court. ③ At the time of the instant mortgage contract, the real estate listed in the Co-Defendant 1 of the first instance court as the Co-Defendant 1 of the first instance court at the time of the instant mortgage contract was established only on the life insurance company of the Re-Defendant 1 of the first instance court at the time, and there was no knowledge that the Defendant did not know about the payment of the payment.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as well as the costs of appeal are assessed against the plaintiff.

[Attachment Omission of List of Real Estate]

Judges Jo Nam-nam (Presiding Judge)