[1] The scope of revocation of a fraudulent act and the method of restitution where the registration of establishment of a real estate subject to a mortgage was cancelled after it was transferred to a fraudulent act

[2] In a case where an order for compensation is issued for the reason that the registration of establishment of a mortgage was cancelled after a mortgage was transferred to a fraudulent act, whether the amount of compensation shall be calculated by deducting the amount of the secured debt of another real estate owned by the debtor, which was cancelled by the beneficiary's repayment from the value of the real estate (negative)

[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code

[1] Supreme Court Decision 97Da6711 delivered on February 13, 1998 (Gong1998Sang, 727) Supreme Court Decision 2001Da33734 delivered on December 27, 2001 (Gong2002Sang, 355) Supreme Court Decision 2002Da41589 Delivered on November 8, 2002 (Gong2003Sang, 46)

Seoul Guarantee Insurance Co., Ltd. (Attorney subordinate-soo, Counsel for defendant-appellee)

Defendant

An intervenor;

Seoul High Court Decision 2004Na57443 delivered on February 10, 2006

The part of the lower judgment’s conjunctive claim regarding real estate listed in Appendix No. 2 is reversed, and this part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below presumed that with respect to 1/2 portion of the real estate listed in Annex II of the judgment below on which the registration of creation of mortgage was cancelled by fraudulent act, etc., the fraudulent act may be cancelled within the extent of the balance remaining after deducting the secured amount of the mortgage from the value of the real estate. In determining the scope of compensation for the value, the court below held that, in addition to deducting the Defendant’s share of the secured amount of the second real estate which was cancelled from the market price of the above share, the Defendant provided the second real estate as collateral and borrowed the loan with the money additionally borrowed, and then repaid the loan with the money additionally borrowed, with the real estate listed in Annex I of the judgment below (hereinafter “first real estate”), the deduction of the Defendant’s share of the secured amount from among the secured amount of the right to collateral security or chonsegwon as stated in Annex II of the judgment below (hereinafter “second real estate”), 00 won x 200 million won x 1.5 million won x 25 million won x 1 million won x 85 million won x 1 million won x 7 million x 170000 million won.

2. However, it is difficult to accept such a measure by the lower court.

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the revocation of the fraudulent act and the cancellation of the registration of the transfer of ownership, shall be ordered. However, in a case where the real estate on which the mortgage is established is transferred by a fraudulent act, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. In a case where the registration of creation of a mortgage is cancelled by repayment after the fraudulent act, etc., order the revocation of the fraudulent act to restore the real estate itself as well as the portion which was not originally common creditors' joint collateral, thereby going against fairness and fairness. Thus, an order to cancel the fraudulent act and seek compensation for the value of the real estate is only possible within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate (see Supreme Court Decisions 97Da6711, Feb. 13, 1998; 2002Da41589, Nov. 8, 2002).

Therefore, for reasons indicated in its holding, the court below erred by misapprehending the legal principles as to the cancellation of fraudulent act and the scope of compensation for the value of the mortgaged mortgage or chonsegwon which was cancelled as repayment by the defendant with respect to the first real estate at the market price of the above shares, and it is clear that such error has influenced the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the part of the judgment below regarding the conjunctive claim regarding the second real estate is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)