(Attorney Lee Han-soo, Counsel for defendant-appellant)

Defendant (Attorney Lee Jong-chul, Counsel for defendant-appellee)

November 12, 2015

Daegu District Court Decision 2014Da302070 Decided January 29, 2015

1. The part against the defendant in the judgment of the first instance shall be revoked;

A. The sales contract concluded on September 17, 2013 with respect to each real estate listed in the separate sheet between the Defendant and Nonparty 1 is revoked.

B. The Defendant shall implement the procedure for cancellation registration of ownership transfer registration completed by Nonparty 1 on September 17, 2013 under the receipt of No. 82204 as to each real estate listed in the separate sheet with respect to each real estate listed in the separate sheet.

2. The Defendant is responsible for total costs of litigation between the Plaintiff and the Defendant.

The same shall apply to the order.

1. Facts of recognition;

(a) Conclusion and lending of credit guarantee agreements;

1) On February 5, 2010, the Plaintiff entered into a credit guarantee agreement with the Co-Defendant 1, Co-Defendant 1, 2010, by setting the term “Stex” as KRW 50,000,000 of the guaranteed principal, and the guarantee period as of February 4, 2015, and issued a credit guarantee certificate as above. On February 8, 2010, Stex submitted the said credit guarantee agreement to the Bank of Korea, Inc., Ltd., and borrowed KRW 50,000,000.

2) In the event that the Plaintiff performed the guaranteed obligation at the time of the credit guarantee agreement, the Seodaemun-Tech agreed to pay the amount of the guaranteed obligation subrogated by the Plaintiff and the amount of the agreed interest rate determined by the Plaintiff on the basis of the Credit Guarantee Fund Act, penalty at the rate of 1.4% per annum on the balance of the outstanding guaranteed principal for the period from the day after the date of payment of the final guarantee fee to the day before the date of payment of the payment of the penalty, and the legal procedure

3) Co-Defendant 1 of the first instance trial (hereinafter “Nonindicted 1”) jointly and severally guaranteed the liability for reimbursement against the Plaintiff of Seogyeong-Tech at the time of the said credit guarantee agreement with the Co-Defendant 1 Co-Defendant 3 of the first instance trial and Nonparty 4.

B. The Plaintiff’s claim

1) On November 9, 2013, the Plaintiff subrogated to the Bank of Korea for KRW 13,430,657 (principal KRW 13,165,756 + interest KRW 264,901) on February 25, 2014, when a credit guarantee accident occurred due to the delinquency in the installment repayment of Seodaemun-Tech.

2) After doing so, the Plaintiff spent KRW 2,879,438 as the cost for the measures to preserve the claim. The Plaintiff paid the guarantee fee until February 7, 2014.

3) The Plaintiff’s claim for recourse against Seodaemun Mediex based on the above credit guarantee agreement 16,318,675 won [13,430,657 won in subrogation payment + 8,580 won in subrogation payment + 8,580 won (13,165,756 won in subrogation payment x 17 days x 1.4% in x 17 days x 1.4% in 10 won] £« 2,879,438 won in legal procedure expenses x 2,879, and 438 won in subrogation payment rate set by the Plaintiff 12%

C. Nonparty 1’s act of disposing of property

1) On September 17, 2013, Nonparty 1 entered into a sales contract with the Defendant to sell each of the real estate listed in the separate sheet (hereinafter “each of the instant real estate”) at KRW 330,000,000 (hereinafter “instant sales contract”) and completed the registration of transfer of ownership on the ground of the said sale under the Daegu District Court Port Branch Branch No. 8204, Sept. 17, 2013, Nonparty 1 completed the registration of transfer on the same day.

2) In the case of the instant real estate and the instant real estate owned by Nonparty 2, who is the punishment of Nonparty 1, Nonparty 1, in order to secure the loan obligation of KRW 500,000,000 against the National Agricultural Cooperative Federation of Nonparty 1, the maximum debt amount was set up in order to secure the loan obligation of KRW 500,000,000 against the National Agricultural Cooperative Federation of Nonparty 1, the debtor, Nonparty 1, and the National Agricultural Cooperative Federation of the mortgagee.

3) Upon entering into the instant sales contract, Nonparty 1 and the Defendant agreed to substitute the Defendant’s payment of KRW 300,000,000 out of the above sales amount for the acceptance of the secured debt of the above joint collateral security. Nonparty 1, on September 11, 2013, on the date of entering into the instant sales contract, repaid to the National Agricultural Cooperative Federation the principal amount of KRW 200,000,000 among the secured debt of the above joint collateral security, and the interest amount of KRW 1,241,588, out of the secured debt of the above joint collateral security, and the Defendant accepted KRW 300,000,000 from around 12:26 to 12:28 of the same day, and around 14:599, paid KRW 300,000,000 for the remainder of the secured debt of the above joint collateral security interest ( KRW 500,000,000).

D. The financial status of Nonparty 1

At the time of the conclusion of the instant sales contract, Nonparty 1’s active property is KRW 673,532,471, and Nonparty 1 was in excess of his/her obligation, i.e., KRW 992,318,675. However, the specific details are as follows:

[On the other hand, in determining whether a fraudulent act is subject to creditor's revocation, if the property owned by the debtor is provided as a physical collateral for another creditor's claim, the portion provided as a physical collateral cannot be deemed as the debtor's property for the general creditors, so it shall be evaluated as the debtor's active property only the balance obtained by deducting the secured claim amount held by other creditors from the value of the property provided as a physical collateral (see Supreme Court Decision 2010Da64792, Jan. 12, 2012); evidence No. 7-7, No. 11, No. 9-5, No. 7-7, No. 7, No. 9-5, and No. 8, Non-party 1 provided the above 7, No. 701, No. 2,000 for securing the debtor's obligation to the comprehensive construction company instead of Handong-si (No. 3,000,0000 won).

The value of real estate located in the main body shall be 00 square meters, 15, 228, 002, 300 square meters, 4,075 square meters, 226, 30,000, 16, 40,000,000, 20,000,000,000 (20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000: 5,000,000,000,000,0000,000,0000,000,000,000,000,000,000,000,00,000,00,00,00,00

Plaintiff 16,318,675, 140,000 2 Korea Technology Credit Guarantee Fund 76,00,000,000 5,000 5,000 5,000 National Agricultural Cooperative Federation 6260,000,000 3 non-party 6260,000,000 in total, 992,318,675

【No dispute over the grounds for recognition】 The evidence Nos. 1 to 4, 5-1 to 7, 6-12 to 14, 7-1 to 8-1, 2, 9-1 to 9, 10, 11, 10, 11, 5-1 to 2, 2, 9-1 to 3, 3, 6-1, 9, 10-1 to 6, 10-1 to 4, 11, 12, and 12, the fact-finding of the evidence No. 1 to 12, the fact-finding of the court of first instance, the result of the fact-finding of the order to submit financial transaction information to the chief of the branch office of the Nonghyup Bank of the first instance, the result of the response to the whole purport of pleadings.

2. The establishment of a fraudulent act;

(a)the existence of preserved claims;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act aimed at property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of the juristic act, and that the claim is created in the near future, and where a claim has been created due to the realization of the probability in the near future, such claim may also become a preserved claim (see Supreme Court Decision 2010Da64792, Jan. 12, 2012, etc.).

According to the above facts, even though the contract of this case was concluded on September 17, 2013, when the plaintiff did not acquire the claim for reimbursement against the non-party 1 based on the above credit guarantee agreement and joint and several guarantee agreement, the plaintiff and the non-party 1 had already entered into the above credit guarantee agreement and joint and several guarantee agreement, which are the legal relations which form the basis of the plaintiff's claim for reimbursement, and the non-party 1 had a high probability as to the occurrence of the plaintiff's claim for reimbursement against the non-party 1 in the nearest future, including the non-party 1's failure to perform the installment repayment obligation on November 9, 2013, after that fact, it was probable that the plaintiff actually subrogated to the bank of Korea on February 25, 2014, and the plaintiff acquired the plaintiff's claim for reimbursement against the non-party 1.

B. Establishment of fraudulent act

In a case where a debtor's act of reducing liability property causes or deepens the shortage of common security for general creditors, whether such act constitutes a fraudulent act subject to revocation shall be determined based on whether the act ultimately constitutes an act detrimental to general creditors by comprehensively taking into account various circumstances revealed in the act, such as the obligor's share of the entire responsible property in the scope of the obligor's property, the degree of insolvency, the legitimacy of the economic purpose of the juristic act and its realization means, the reasonableness of the act in question, the necessity of the act, the degree of the obligor's perception of the obligor and beneficiary against the shortage of common security, etc. (see Supreme Court Decision 2011Da107818, Mar. 27, 2014, etc.).

In addition, in cases where part of a number of real estate on which joint mortgage is created is disposed of, in principle, in light of the purport of Article 368 of the Civil Act, the amount of the secured debt in proportion to the value of each real estate which is the object of joint mortgage in accordance with the purport of Article 368 of the Civil Act. However, in cases where part of a number of real estate is owned by the debtor and the property is owned by the surety, it is reasonable to view the amount of the secured debt in relation to the real estate owned by the debtor as the total amount of the secured debt in joint mortgage (see Supreme Court Decision 2007Da78234, Apr. 10, 208).

In light of the above facts and the purport of the above evidence Nos. 4 and 14, the value of each real estate of this case, i.e., up to 70% of the total value of the non-party 1's property, 200,000 won out of the above joint collateral security amount of 50,000 won, 30,000 won out of the above joint collateral security amount of 40,000 won, and 10,000 won out of the above joint collateral security amount of 30,000 won, the amount of the above joint collateral security interest of 30,000 won out of the above joint collateral security interest of 10,000 won, 30,000 won out of the above joint collateral security interest of 30,000 won, and 10,000 won out of the above joint collateral security interest of 30,000 won out of the sale price of forest and 10,000 won.

C. Defendant’s assertion and judgment

1) The assertion

The Defendant purchased each of the above real estate from Nonparty 1 before the conclusion of the instant sales contract, in order to continue to operate the gas station and the rest area in which Nonparty 1 was fully aware of the excess of the obligation of Nonparty 1 while operating the gas station and the rest area. Thus, the Defendant is a bona fide beneficiary.

2) Determination

In cases where an obligor’s act of disposal of property constitutes a fraudulent act, the good faith of the beneficiary shall be determined in light of logical and empirical rules, comprehensively taking into account the relationship between the obligor and the beneficiary, the details of and the motive for the act of disposal between the obligor and the beneficiary, the circumstances leading to the act of disposal, whether there are no special circumstances to doubt that the terms and conditions of the act of disposal are normal and there are no objective data supporting the act of disposal, and the circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 2007Da74621, Jul. 10, 2008). In addition, in recognizing that the beneficiary was bona fide at the time of the fraudulent act, there should be objective and understandable evidence, etc., and it should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act merely based on the obligor’s unilateral statement or the statements made only by a third party (see Supreme Court Decision 2004Da61280, Jul. 4, 2006).

In the evidence Nos. 20 and 22, as shown above by the Defendant, each statement in the evidence Nos. 20 and 22 is merely a third party who is not a contracting party to a lease agreement, and there is no dispute between the parties or the whole purport of the pleadings in the statement No. 24, i.e., the Defendant and the non-party 1; the Defendant did not specifically explain the terms and conditions of the lease agreement; the Defendant registered its business with the trade name "○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ at the time of the conclusion of the instant contract; it is difficult to view that the remitted money was paid to the non-party 1 without any other objective data, and it is insufficient to recognize that the Defendant acted in good faith. Therefore, there is no other evidence to acknowledge this differently.

D. Sub-committee

Therefore, the sales contract of this case concluded between the defendant and the non-party 1 shall be revoked as a fraudulent act, and the defendant shall be obligated to implement the procedure for cancellation registration of ownership transfer registration completed with respect to each real estate of this case to the non-party 1.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is accepted for the reasons, and since the part against the defendant in the judgment of the court of first instance is unfair for the conclusion differently, it is so decided as per Disposition by accepting the plaintiff's appeal.

[Attachment]

Judges' Profit-based(Presiding Judge) No. Gong50