In a lawsuit seeking revocation of a fraudulent act, whether the beneficiary should also deduct the lease deposit of the lessee who has no preferential right to payment from the value of the real estate to be compensated by the beneficiary (negative)

In cases where a sales contract for real estate is revoked on the ground that it is a fraudulent act and orders compensation for the value of the real estate to be restored to its original state, the beneficiary is not entitled to deduct from the value of the real estate to be compensated unless there are special circumstances, such as the cancellation of the sales contract for the real estate, and the cancellation of the lease deposit claim for the right to lease under the name of extinguishment when the real estate is sold in the event of a successful bid because the prior collateral security has already been held in the first place, the right to preferential reimbursement is obtained from the lease contract, or

Article 406 (1) of the Civil Act, Article 3 (1) and Article 8 of the Housing Lease Protection Act

Plaintiff (Counterclaim Defendant) (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Jeong-nam, Counsel for defendant-Counterclaim)

Seoul High Court Decision 99Na8782, 8799 delivered on July 23, 1999

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

1. On the first ground for appeal

In full view of his evidence, the court below recognized the fact that the non-party 1 entered into a sales contract with the defendant (the non-party 1, the non-party 1, the plaintiff 2,00,000 won, which is the only real estate owned by himself, on April 1, 1997, with the non-party 1 (the non-party 1, the plaintiff 1,59,000,000 won, and the non-party 1, who is the only real estate owned by himself, shall sell the real estate of this case to the defendant on the same day as the down payment, and the non-party 2,00,000 won out of the remainder shall be set off against the defendant's claim for the return of the deposit for lease, and the remainder amount of 129,00,000 won shall be set up as the collateral obligation for the real estate of this case as well as the obligation for the return of the deposit for lease of this case by the defendant. The examination of the evidence in the record is just and there is no errors in the misapprehension of all necessary facts.

In addition, according to the facts of its recognition, the defendant decided to purchase the real estate of this case, which is the only real estate of this case from the non-party 1 and set off claims against his own non-party 1, and the defendant did not actually pay the remaining amount after subtracting the down payment from the down payment, by taking over the debts of the non-party 1 in lieu of almost most of the remainder payment. Thus, the defendant obtained satisfaction prior to other creditors, while the other creditors are placed at a disadvantage than the previous one as the joint collateral decreases, it is deemed that the sale of the real estate of this case by the non-party 1 constitutes a fraudulent act (see Supreme Court Decision 94Da14582 delivered on June 30, 195).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to fraudulent act.

Furthermore, the court below acknowledged that the defendant's bad faith as a beneficiary was presumed, and rejected the defendant's assertion on the ground that the non-party 1 did not have the intention of deception because he was unaware of the fact that the non-party 1 had the obligation to repay the loan to the plaintiff (sub-party 1) at the time of the sales contract with the non-party 1, the evidence alone as stated in the judgment of the court below is insufficient to

As examined in comparison with the evidence in the records, the disposition of the court below is just, and there is no violation of law by failing to exhaust all necessary deliberations or by violating the rules of evidence, etc.

All of the defendant's arguments are rejected.

2. On the second ground for appeal

The court below concluded a lease agreement with the non-party 1 on May 11, 1995 with respect to the instant real estate with the non-party 2 and the non-party 3 with a maximum debt amount of KRW 21 million as of September 3, 1996, with the non-party 2 and the non-party 3 with a maximum debt amount of KRW 56 million in the name of the non-party 1 and the defendant as of May 11, 1995, and concluded a lease agreement with the non-party 4 with respect to the instant real estate with the non-party 1 on April 1, 1996 with respect to the lease deposit of KRW 35 million with respect to the second-class housing among the instant real estate, and completed the move-in report on May 1, 199, and obtained the lease agreement with the non-party 1 and the defendant on May 19, 197, which was after the sales contract between the defendant.

According to the facts acknowledged by the court below, the non-party 4 entered into a lease contract with the non-party 1 on April 1, 1996 and completed the move-in report on May 1 of that year, and the non-party 4 started residing in the part of the house. From May 1, 1996, the non-party 4 had the opposing power of the right of lease as stipulated in Article 3 (1) of the Housing Lease Protection Act with respect to the part of the real estate of this case. However, since the priority of the right of lease as stipulated in the name of the non-party 1 and the non-party 4 had the opposing power after the third party 1 and the real estate of this case was sold, the non-party 4's right to lease of this case can not be deducted from the right of lease deposit for the non-party 4 as well as the right to preferential repayment under the Housing Lease Protection Act due to the non-party 4's non-party's failure to receive the fixed date of lease deposit at the time of this case.

However, the court below rejected the defendant's assertion that the sales contract between the non-party 1 and the defendant on the real estate of this case was revoked on the ground that it was a fraudulent act and that the defendant should deduct the obligation to return the lease deposit amount of KRW 35 million under the lease contract between the non-party 1 and the non-party 4 from the amount to be compensated by the plaintiff (the counter-party 4). The judgment of the court below is somewhat insufficient, but it is just in the conclusion that rejected the defendant's argument, and there is no error of law by misunderstanding the legal principles as to the compensation for the value in the lawsuit to revoke the fraudulent act, which affected the conclusion of

This part of the grounds of appeal cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)