[1] The scope of revocation of a fraudulent act and the method of restitution where the registration of establishment of a mortgage was cancelled after a fraudulent act was committed on an immovable on which a mortgage was established

[2] In a lawsuit seeking revocation of a fraudulent act, where the return of the value is ordered as a substitute for the return of the original property, the standard for calculating the value (=when closing argument

[3] Whether delay liability arises to the beneficiary before a judgment on the acceptance of a lawsuit seeking revocation of a fraudulent act becomes final and conclusive (negative)

[1] In principle, when a certain real estate donation contract is a fraudulent act, the above donation contract is revoked and the order is issued to recover the real estate itself, such as cancellation of the registration of transfer of ownership. However, in the event that the fraudulent act is performed between the persons other than the mortgagee with respect to the real estate on which the right to collateral security is established and the registration of creation of collateral security is cancelled due to repayment, etc. thereafter, it would result in a result contrary to the fairness and fairness. Therefore, in such a case, the order to recover the real estate itself is only to the extent that the value of the real estate remains after deducting the amount of the secured claim, such as the right to collateral security, which was secured by

[2] Where the market value of real estate is ordered to compensate for damages in a lawsuit seeking revocation of a fraudulent act, barring special circumstances, when the beneficiary bears the duty of restitution as a result of the revocation of the fraudulent act, i.e., calculating at the time of the most nearest closing of argument at the time of final and conclusive judgment for the revocation of the fraudulent act, would accord with the purpose of the lawsuit by securing and preserving the obligor’s property, and is fair between

[3] The effect of revocation of a fraudulent act is that the judgment of acceptance of a lawsuit seeking revocation of a fraudulent act, which is a judgment forming the formative judgment, has become final and conclusive, so the beneficiary who is the other party to the revocation of the fraudulent act

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code / [3] Article 406 of the Civil Code

[1] [2] Supreme Court Decision 97Da6711 delivered on February 13, 1998 (Gong1998Sang, 727) Supreme Court Decision 98Da41490 delivered on September 7, 199 (Gong1999Ha, 2066) / [1] Supreme Court Decision 96Da23207 delivered on October 29, 1996 (Gong196Ha, 3530) Supreme Court Decision 99Da50101 delivered on November 9, 199 (Gong199Ha, 2471)

Korea Credit Guarantee Fund (Attorney Hong-chul et al., Counsel for the plaintiff-appellant)

Freeboard and one other (Attorney Kim Byung-jin, Counsel for the plaintiff-appellant)

June 23, 1999 (Defendant 1)

October 13, 1999 (Defendant 2)

1. The defendant Lee Jae-chul paid to the plaintiff 3,09,729 won and 32,704,109 won among them with 20% per annum from September 4, 1998 to December 31, 1998 and 18% per annum from January 1, 1999 to the date of full payment.

2. The contract of donation concluded by the Defendants on March 16, 1998 with respect to real estate listed in the separate sheet shall be revoked within the scope of 33,009,729 won.

3. The Defendant’s signature lodging shall pay to the Plaintiff 3,009,729 won with 25% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

4. The plaintiff's remaining claims against the defendant's signature lodging are dismissed.

5. The costs of the lawsuit are jointly and severally borne by the Defendants.

6. Paragraph 1 can be provisionally executed.

The judgment of the court below as stated in Paragraph (1) and Paragraph (1) of this Article and the contract concluded by the Defendants on March 16, 1998 with respect to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") shall be revoked, and the defendant shall pay to the plaintiff 3,009,729 won with 25% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of complete payment.

1. Claims for reimbursement against the plaintiff's transfer to the defendant;

【Fact that does not have any dispute】

A. On May 16, 1997, the Plaintiff guaranteed the obligation of KRW 30,00,000 to the Korea Housing and Commercial Bank of India, which is the representative of Sejong Enterprise, and agreed to pay the said guaranteed obligation, the said Defendant paid for the performance of the obligation and the overdue interest rate of financial institutions related thereto, or delayed damages in accordance with the interest rate determined by the Plaintiff, and to bear all the incidental obligations, including other legal procedures necessary for the exercise or preservation of the right to indemnity.

B. On September 4, 1998, the Plaintiff subrogated to the above bank the principal and interest of KRW 30,000,000 and overdue interest of KRW 2,704,109 up to that time. On November 26, 1998, the Plaintiff disbursed KRW 305,620 (total KRW 33,009,729) on November 26, 1998 at the cost of preserving the claim for reimbursement following the subrogation repayment.

C. The interest rate on delayed damages determined by the Plaintiff is 20% per annum from September 4, 1998 to December 31, 1998, and 18% per annum from January 1, 1999 to the date.

Therefore, the defendant Lee Jae-chul is liable to pay the plaintiff the old prize money and the delayed damages due to the repayment of the above subrogation.

2. Request for the signature lodging of the defendant;

(a) An occurrence of the right to cancel the act of deception;

[The following facts are either in dispute between the parties or in accordance with Gap evidence 1 through 8, Eul evidence 1, Eul evidence 6-1, and Eul evidence 6-11, and each fact inquiry about the Korea Housing and Commercial Bank of this Court's branches, women of Daegu Bank's branches, treatment electronic companies, and there is no counter-proof.]

(1) As seen earlier on May 16, 1997, the Plaintiff guaranteed a loan of KRW 30 million to the Korea Housing and Commercial Bank of Ison-do.

(2) On March 1, 1998, E.S. began to delay interest accrued from the above loan, and was subject to the suspension of the current transaction at the above bank on the 31st of the same month.

(3) On March 23, 1998, Lee Jae-chul entered into a donation contract on the instant real estate with the Defendant’s signature house, the wife, on the 16th day of the same month, and completed the registration of transfer of ownership.

(4) On the other hand, around March 16, 1998, the real estate and the market price of this case 200 million won was 306,00,000,000 won of the real estate and the market price of this case 80,000,000,000 won of the 30,000 won of the loan of this case for Korean house, the maximum amount of bonds 6,50,000 won of the 50,314,943 won of the secured claim of this case, and the bill promise of this case 146,35,00 won of the total amount of the 333,00 won of the default of the bill, 97,200,723, 12,000 won of the trust deposit of Hongdong-ro, 36,50,000 won of the bill of this case, and 368,50,000 won of the bill of this case.

(5) As seen earlier on September 4, 1998, the Plaintiff was unable to repay the above loans, and the Plaintiff subrogated to the said bank to pay the total of KRW 33,009,729.

B. Determination

(1) Formation of fraudulent acts

(A) A claim that can be protected as a creditor’s right of revocation should, in principle, arise before there is an act that can be deemed as an act of deception. However, at the time of the act, there has already been a legal relationship that serves as the basis for the establishment of a claim, and there is a high possibility that the claim may be established in the near future due to such legal relationship. In fact, in the near future, where a claim has been created as a real cause, the claim may also be the creditor’

(B) According to the facts acknowledged earlier, E.S., immediately before the conclusion of the above contract of donation, had commenced on March 1, 1998, and the Defendant’s signature house, which is the wife of E.S., entered into a contract of donation on March 23, 1998, and completed the registration of transfer of ownership. In light of the fact that: (a) the registration of transfer of ownership was completed on March 16, 1998; (b) the real estate of this case, which is the only property, was donated to the Defendant’s signature house and completed the registration of transfer of ownership; and (c) the real estate of this case, which is the real property, was actually the only property, was donated to the Defendant’s signature house to complete the registration of transfer of ownership; and (d) it is difficult to fully repay all obligations to be established solely with its own property.

Therefore, barring any special circumstance, the foregoing agreement on the creation of a collateral security shall not be relieved of its revocation, barring any special circumstance, since it is presumed that: (a) having entered into a gift agreement with the Defendant’s signature lodging and the instant real estate; and (b) having completed the registration of the transfer of ownership in the said Defendant’s name would not be an act detrimental to the obligee; and (c) the Defendant, who completed the registration of the transfer of ownership, was aware of

(C) The Defendant’s signature deliberation at the time of signing the Defendant’s defense that the gift of the instant real estate was divided into the Plaintiff’s adequate size for divorce, and that the transfer was in excess of his/her obligation. However, the Defendant’s defense was insufficient to acknowledge the aforementioned defense by itself, and there is no other evidence to prove otherwise. (A) Even if the said gift was divided into a property for divorce, it cannot be deemed that the donation was an appropriate division of the property to which the person who is in excess of his/her obligation had already donated all the property to his/her wife, and there is no evidence to prove that the gift was divided into property for divorce in the instant case where there was no evidence to prove that the Defendants was divorced even after the donation, and therefore, it cannot be deemed that the said gift was divided into property for divorce. Therefore, the Defendant’s defense does not appear to

(2) Scope and method of revocation

(A) In principle, when a contract of gift of a certain real estate was committed, the above donation contract is cancelled and the order is issued to recover the real estate itself, such as cancellation of ownership transfer registration. However, in the event that the above fraudulent act is performed between the persons other than the mortgagee with respect to the real estate on which the right of collateral security is established and the registration of mortgage creation is cancelled due to repayment, etc. thereafter, it would be restored to the portion which was not originally identified as the security, thereby bringing about a result contrary to the fairness and fairness. In such a case, only within the extent of the value of the real estate less the amount of the secured claim, such as the right of collateral security, which was secured as the real estate, only

In addition, the base date of the market price of the real estate in the case of an order for compensation for damages has the effect of revoking the act of fraudulent damage and the beneficiary bears the duty of restoration to its original condition, that is, the calculation based on the time nearest pleadings at the time of final conclusion of the judgment of admitting the suit for cancellation of the act of fraudulent damage is consistent with the purpose of the lawsuit by securing the debtor's responsible property and preserving the claim, and can be fair between the creditor and

(B) The following facts are no dispute between the parties, or Gap evidence 5, Eul evidence 6-1 of this Court, and each fact-finding with respect to Jyangdong branch head of the Korea Housing and Commercial Bank and Jyangdong branch head of the Korea Housing and Commercial Bank of this Court as a whole, and there is no counter-proof.

1) At the time of the donation, the registration of the establishment of a collateral security right and the registration of the establishment of a collateral security right of KRW 100 million with a maximum amount of KRW 100 million with a view to securing the maximum amount of the claim 6.5 million to secure the loan obligations against the Korea Housing and Commercial Bank of India, was completed. On June 25, 1998, the registration of the establishment of a collateral security right of the Korea Housing and Commercial Bank was cancelled.

2) On March 16, 1998, the actual liabilities secured by the aforementioned collateral security right were 50,314,943 won in relation to the Korea Housing and Commercial Bank, and 97,200,723 won in relation to treatment electronics, and Hong Dongdong leased and resided in 12,00,000 won in the rooftop of the instant real estate.

3) The market value of the instant real estate as of the closing date of the instant pleadings is KRW 200 million.

(C) Therefore, the above gift contract shall be revoked to the extent of the Plaintiff’s amount of claims within the scope of the amount of claims calculated by deducting the actual amount of claims secured by the collateral security established prior to the above donation contract from the market price at the time of the conclusion of the pleading of the instant real estate (200,000,000 - 50,314,943 - 97,200,723 - 12,00,000 = 40,484,334).

3. Conclusion

Therefore, the defendant Lee Jae-chul is obligated to pay to the plaintiff 3,09,729 won and 32,704,109 won among them with 22,704,109 won per annum from September 4, 1998 to December 31, 1998, which is the overdue interest rate of 20%, and 18% per annum from January 1, 1999 to the date of full payment. The defendants are obligated to pay to the plaintiff 33,009,729 won with 333,09,729 won and 32,729 won per annum from the day after this judgment becomes final and conclusive to the day of full payment (the plaintiff's above-time payment of damages to the plaintiff shall be revoked within the scope of 25% per annum from the day after this judgment becomes final and conclusive, but the plaintiff's remaining claim for the cancellation of the judgment of this case shall not be made within the scope of citing the original decision.

Judges Lee Sung-sung(Presiding Judge)