[Judgment of the court below]

Defendant

November 27, 2009

Daejeon District Court Decision 2008Gahap1634 Decided July 3, 2009

1. Revocation of a judgment of the first instance;

2. The sales contract concluded on August 27, 2008 between Nonparty 1 and the Defendant on the right to permit fishery as stated in the attached list No. 1 shall be revoked. The Defendant will implement the procedure for cancellation of the registration of the right to permit fishery on October 27, 2008, for which the right to permit fishery has been granted to the Plaintiff as stated in the attached list No. 2.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The reasons for this are the same as the statement in Paragraph 1 of the judgment of the court of first instance, and they are cited as it is, however, the second part of the judgment of the court of first instance states "for the defendant" to "for the non-party 2 who represented the defendant".

2. Judgment on the ground of the Plaintiff’s claim

The reasons for this are the same as the written judgment of the court of first instance.

3. Determination as to the defendant's bona fide defense

The Defendant asserted that, at the time of Nonparty 1’s purchase of the fishery permit for ○○○ from Nonparty 1, Nonparty 1 was unaware of the circumstances under which the Plaintiff owed the above obligation, and thus, the Defendant did not know that the instant sales contract was an act detrimental to the Plaintiff, a creditor.

When a legal act at issue is performed by an agent, the existence of bad faith against the beneficiary's fraudulent act shall be determined on the basis of an agent (see Supreme Court Decision 2006Da22661 delivered on September 8, 2006).

In this case, the fact that the sales contract of this case was concluded between the non-party 2 and the non-party 1 on behalf of the defendant is as seen earlier. Therefore, in accordance with the above legal principles, the decision of the defendant's good faith should be made based on the non-party 2,

However, as to the fact that Nonparty 2 was unaware of the fact that the sales contract of this case constitutes a fraudulent act, it is insufficient to recognize it solely with the evidence Nos. 2, 6-1, 2, 8, and the testimony of Nonparty 1 as the witness of the first instance trial, and there is no other evidence to acknowledge it.

Rather, in light of the following facts, in light of the developments leading up to the instant sales contract, the relationship between the persons involved in the instant sales contract and other circumstances, it is reasonable to deem that Nonparty 2 was fully aware of the circumstances that Nonparty 1 sold ○○ Fishery License to the Defendant, thereby reducing the joint collateral for general creditors.

A. The following facts are acknowledged in full view of Gap evidence 9-3, 8, Gap evidence 10, Eul evidence 4-1, and Eul evidence 4-7, and the testimony of non-party 3, non-party 4, 2, and 1 of the first instance trial witness, and the purport of the whole pleadings.

1) At the time of the instant sales contract, Nonparty 1, other than the Plaintiff, had an obligation to other creditors, including Nonparty 3.

2) However, Nonparty 3, who was aware of the fact that Nonparty 1 was a large amount of debt, recommended Nonparty 1 to sell the right to permit the fishery to ○○○○○ to resolve the debt (ama appears to have the intention to obtain repayment of the claim against Nonparty 1, and in fact, Nonparty 1 paid part of the purchase price that Nonparty 1 received from the Defendant to Nonparty 3) and Nonparty 1 accepted it.

3) Accordingly, Nonparty 3 asked Nonparty 4, who was well aware of Nonparty 3, to arrange the sale of ○○ fishery permit, and Nonparty 4 suggested that Nonparty 4 purchase ○○ fishery permit to Nonparty 2, who was a kind of friendly friendly friendly Nonparty 2.

4) Nonparty 2, who is the mother of the Defendant, recommended the Defendant to purchase the right to permit ○○ho Lake again, and the Defendant entrusted Nonparty 2 with all of the things, thereby allowing Nonparty 2 to enter into the instant sales contract on behalf of the Defendant.

5) Upon Nonparty 1’s request, Nonparty 2 remitted KRW 15 million out of the above sales amount to Nonparty 1’s account, and the remaining KRW 85 million to Nonparty 5’s account, the wife of Nonparty 1.

B. At the time of the instant sales contract, the sales contract was not prepared. As to the amount of the purchase price, the Defendant and Nonparty 2 are KRW 180 million (the Defendant’s reply on January 21, 2009, Nonparty 2’s testimony by Nonparty 2), Nonparty 1 stated that the amount of KRW 140 million was KRW 140 million at the time of the investigation by the investigation agency (the evidence No. 9-8 of this case’s evidence), and that the amount of KRW 170 million at the court of first instance is 10 million for each interested person, including testimony of KRW 170 million at the investigation agency (the evidence No. 9-8 of this case’s evidence), and that there is a difference between KRW 180 million and KRW 170 million,000,000 for each interested person.

C. The Defendant stated to the effect that, on the first day for pleading, he borrowed and paid the above purchase price from Nonparty 2, the Defendant did not enter into an agreement on the due date for repayment of and interest on the loan, and that he would be able to complete the fishery business by engaging in the purchased fishery permission.

4. Conclusion

Therefore, the sales contract concluded on August 27, 2008 between the non-party 1 and the defendant as to the right to permit fishery for ○hoho Lake constitutes a fraudulent act detrimental to the plaintiff, who is the creditor, and the defendant is obligated to implement the procedure of cancellation of the registration of the right to permit fishery for the original state on October 27, 2008, which was completed with respect to the right to permit fishery for the original state. Thus, the plaintiff's claim of this case can be accepted for reasons. The judgment of the court of first instance is unfair in conclusion, and it is revoked by accepting the plaintiff's appeal, and as such, it is so decided as per Disposition by deciding to cancel the fraudulent act and order its restoration.

【Manifestation of List of Fishery Permits】

Judges Kim Jong-chul (Presiding Judge)