Industrial Bank of Korea (Law Firm Solar, Attorneys Sung Chang-chul et al., Counsel for defendant-appellant)

Defendant (Attorney Ahn Byung-chul, Counsel for defendant-appellant)

October 27, 2011

Seoul Central District Court Decision 2010Da262273 Decided July 12, 2011

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract of donation concluded on March 5, 2010 with respect to the 1/2 shares of Codefendant 2 of the first instance trial among the real estate listed in the separate sheet between Codefendant 2 (the Nonparty of the Supreme Court judgment) and the Defendant shall be revoked. The Defendant shall pay to the Plaintiff 29,851,093 won and the amount calculated at the rate of 5% per annum from the date this judgment became final to the date of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning for this case is as follows, except for the addition of the judgment as stipulated in Paragraph 2 below to the new assertion by the defendant in the trial room, and therefore it is identical to the reasoning of the judgment of the court of first instance.

2. Additional matters to be determined;

The defendant is the co-defendant 2 of the first instance court at the time of cancellation of the right to collateral security of the Korea Exchange Bank with respect to the portion of the real estate in which the co-defendant 2 of the first instance court donated to the defendant. Since the defendant is a co-defendant 2 of the first instance court and is in a position to exercise the right to collateral by subrogation as a joint guarantor and a surety's surety's right to collateral security at the time of cancellation, the remaining claim amount is 90,297,813 won at the time of cancellation. Since this exceeds the market price of 1/2 of the real estate in this case, the donation by co-defendant 2 of the first instance court is alleged not to constitute a fraudulent act. Thus, if the obligor's right to collateral is established on the object transferred and the amount of the secured claim exceeds the price of the object, the transfer of the object in question does not constitute a fraudulent act (see, e.g., Supreme Court Decision 201Da15613, Oct. 12, 2001).

3. Conclusion

If so, the decision of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit.

Judges Kim Tae-sung (Presiding Justice)