[1] Requirements for exceptionally becoming a preserved claim of the obligee's right of revocation that has not yet been established at the time of the fraudulent act

[2] Whether an obligor in excess of his/her obligation constitutes a fraudulent act to sell the only property to a third party

[3] The meaning of an intention to commit an act of revocation, which is a subjective element of the obligee's right of revocation, and whether a beneficiary's bad faith is presumed in the event of an obligor's intent to commit an act of revocation

[4] The scope of revocation of a fraudulent act in the event that the establishment registration of a mortgage was cancelled after the fraudulent act regarding the real estate on which the right to collateral security was established (=the balance remaining after deducting the amount of the secured debt) and the method of restoring the original state (=the time when the pleadings at the court of fact-finding are concluded)

[5] In a case where a beneficiary orders compensation for the value of the property to be restored to the original state in a lawsuit seeking revocation of a fraudulent act, whether the beneficiary should also deduct the lease deposit of the lessee who has no right to preferential payment from the value of the real estate that

[1] In principle, a claim protected by the obligee's right of revocation needs to be created prior to the occurrence of an act that can be viewed as a fraudulent act. However, there is a high probability that the legal relationship has already existed at the time of the fraudulent act, and that the claim should be established in the near future in the near future, and in the near future, the claim may also become a preserved claim in the obligee's right of revocation in case where the claim has been established because the probability has been realized in the near future.

[2] The case where an obligor in excess of his/her obligation sells land to a third party, which is the only property, and completes the registration of ownership transfer, constitutes a fraudulent act committed with the knowledge that it would prejudice the obligee unless there are any special circumstances.

[3] It does not mean that the debtor's bad faith, i.e., intent to harm the creditor, but it is sufficient to recognize the fact that the debtor's act of disposal of the debtor's property does not mean the debtor's active desire to harm the creditor, which makes it impossible to fully satisfy the creditor's claims because the debtor's joint security is deficient due to the decrease of the debtor's property or the joint security already lacking one story, and as long as the debtor's intent to harm is recognized, the beneficiary is presumed to be bad faith.

[4] In the event that the registration of creation of a neighboring mortgage was cancelled due to repayment, etc. after the fraudulent act, the revocation of the fraudulent act and the order to recover the real estate itself is an order to recover the portion which was not originally offered as joint collateral for general creditors, and it is a result contrary to the fairness and fairness. Therefore, only to the extent of the balance remaining after deducting the secured debt amount from the value of the real estate, the fraudulent act may be cancelled and the compensation for the amount equivalent thereto shall be calculated at the time of the conclusion of fact-finding pleadings.

[5] Where a sales contract for real estate is revoked on the ground that it is a fraudulent act and orders compensation for value as a result of restitution, the opposing power stipulated in Article 3 (1) of the Housing Lease Protection Act has been expired, but the right to return the lease deposit of the right of lease placed in the name of the real estate which is extinguished in the event of a successful bid because the prior priority mortgage has already been completed, shall not be deducted from the value of the real estate to be compensated by the beneficiary, unless there are special circumstances, such as that the right to receive preferential reimbursement from the lease contract has a fixed date, or is a small lessee under the Housing Lease Protection Act. The same applies

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act / [4] Article 406 (1) of the Civil Act / [5] Article 406 (1) of the Civil Act, Articles 3 (1), 3-2 (2), and 8 of the Housing Lease Protection Act, Articles 3 (1), 5 (2), and 14 of the Commercial Building Lease Protection Act

［1］ 대법원 2001. 3. 23. 선고 2000다37821 판결 (공2001상, 953) 대법원 2002. 11. 26. 선고 2000다64038 판결 (공2003상, 173) 대법원 2004. 11. 12. 선고 2004다40955 판결 (공2004하, 2033) 대법원 2005. 8. 19. 선고 2004다53173 판결 (공2005하, 1498) ［2］［3］ 대법원 1998. 5. 12. 선고 97다57320 판결 (공1998상, 1615) ［2］ 대법원 2003. 3. 25. 선고 2002다62036 판결 (공2003상, 1046) ［4］ 대법원 2001. 9. 4. 선고 2000다66416 판결 (공2001하, 2162) 대법원 2001. 12. 11. 선고 2001다64547 판결 (공2002상, 275) 대법원 2002. 11. 8. 선고 2002다41589 판결 (공2003상, 46) ［5］ 대법원 2001. 6. 12. 선고 99다51197, 51203 판결 (공2001하, 1572)

Korea Deposit Insurance Corporation (Attorney Park Jong-chul, Counsel for the bankruptcy)

Defendant (Attorney Ho-young et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2003Gahap420 decided June 24, 2005

April 28, 2006

The judgment of the first instance is modified as follows.

1. The sales contract concluded on June 19, 2002 between the defendant and the co-defendants of the first instance trial (resident registration number omitted) shall be revoked within the scope of KRW 161,863,769.

2. The defendant shall pay to the plaintiff 161,863,769 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder 90% by the Defendant, respectively.

1. Purport of claim

A. The sales contract concluded on June 19, 2002 between the defendant and the co-defendants of the first instance trial (resident registration number omitted) on the instant real estate in the attached list shall be revoked within the scope of KRW 192,235,607.

B. The defendant shall pay to the plaintiff 192,235,607 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiff's claims are dismissed.

1. Basic facts

[Ground of recognition] The non-contentious facts, Gap evidence 1-1-2, Gap evidence 1-2, 3, and 5-1, 2, and Gap evidence 4-2 (the defendant asserts that one of Gap evidence 2-1 was forged, but the defendant's above assertion is without merit as examined in the above paragraph 2. A.), the result of the court of the first instance's entrustment of market price appraisal to the defendant's old branch office, and the result of fact inquiry to the defendant's office's office and branch office's office's whole purport of the pleadings

[Evidence of the ship] No. 17, No. 18-5, No. 6, and No. 10

(a) Loan agreements with co-defendants in the first instance trial;

(1) On July 24, 1999, the Seodaemun-gu Mutual Savings and Finance Company (hereinafter referred to as the “Seosung Mutual Savings and Finance Company”) set and lent KRW 500 million to the co-defendants of the first instance trial on July 24, 2002, annual interest rate of KRW 15.6%, annual interest rate of KRW 22%, annual interest rate of delay damages, and Nonparty 1, the co-defendants of the first instance trial, as the co-defendants, guaranteed the above loan obligations.

(2) On August 30, 2002, the Simyeong Treasury was bankrupt by the bankruptcy decision of the Daegu District Court, and the plaintiff was appointed as the bankruptcy trustee on the same day.

B. The Plaintiff’s claim

(1) The co-defendant in the first instance trial delays repayment despite the maturity period of the above loan, and the amount partially repaid by Non-party 1, a joint guarantor, on August 14, 2003, is appropriated for interest on the above loan until December 18, 2002, and there remain damages for delay from December 19, 202 to the date of repayment.

(2) On July 28, 2004, the Plaintiff filed a lawsuit for a loan claim with the Daegu District Court resident support 2003Kadan3811, and was sentenced by the same court that “the co-defendants of the first instance trial and the non-party 1 jointly and severally paid to the Plaintiff the amount of KRW 500 million and the interest rate of KRW 22% per annum from December 11, 2002 to the date of full payment,” and the above judgment was finalized on August 24, 2004.

(c) An act of disposing of property by a co-defendant in the first instance;

The co-defendants of the first instance court completed the registration of ownership transfer based on the sales contract (hereinafter “instant sales contract”) on July 3, 2002, No. 8561, which was received on July 3, 2002, to the Defendant, who is the birthee of the instant real estate.

(d) Status of the property of co-defendants in the first instance;

At the time of the conclusion of the instant sales contract by the co-defendant in the first instance trial, the market value of active property was KRW 432,752,200, and there was no particular property other than the instant real property. However, even if the Defendant’s claims were excluded from the Defendant’s claims, the amount of loans worth KRW 500,000 to the Defendant’s KNF, and the amount of loans worth KRW 240,000,000,000,000,000 to the Korean National Bank (hereinafter “National Bank”), was already in excess of the obligation.

2. The establishment of preserved claims and fraudulent acts;

(a) Claims for preservation;

(1) In principle, a claim protected by the obligee’s right of revocation needs to be protected prior to the occurrence of an act that can be viewed as a fraudulent act, but at the time of such fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of a claim, and there is high probability as to the establishment of a claim based on such legal relationship in the near future in the near future. In the near future, where a claim has been created by realizing such probability in the near future, the claim may also become a preserved claim (see Supreme Court Decision 2000Da37821, Mar. 23, 2001).

(2) The Plaintiff’s repayment period of loans to co-defendants in the first instance trial was after the instant sales contract was concluded and there is no assertion or proof as to whether Co-defendants in the first instance trial lost the benefit of time prior to the conclusion of the above sales contract. However, as seen earlier, at the time of the conclusion of the above sales contract, the Plaintiff already concluded the instant loan contract and lent money between co-defendants in the first instance trial, and completed the registration of transfer of ownership at least one month prior to the due date of the above loan. In early 2002, the Co-defendants in the first instance trial was highly highly probable that it was difficult to repay the loan due to the interest of the national bank, etc. even if the loan was already paid in early 202 except for the loan of this case. In fact, the loans to Co-defendants in the first instance trial could not be repaid the principal of the loan at the due date of the above loan which became due one month after the date of the conclusion of the instant sales contract.

(3) The Defendant asserts that, using the certificate of personal seal impression, etc. issued by Nonparty 1 by deceiving the co-defendants of the first instance trial, the instant loan document was forged in collusion with Nonparty 2, who was an employee of the Si/Gu/Si/Gun, and the loan KRW 500 million was appropriated for repayment of KRW 300 million of the loan of Nonparty 3 and KRW 220 million of the loan of Nonparty 4 acquired by Nonparty 1, and thus, the instant loan claim of this case cannot be a preserved claim of this case.

However, it is difficult to believe that the entries and partial descriptions of Eul evidence 17, Eul evidence 18-5, 6, and 10 are consistent with this, in light of the following facts, and each statement of Eul evidence 18-1 through 3 are insufficient to recognize it. There is no other evidence to acknowledge that the loan documents of this case were forged. Rather, according to each part of evidence Nos. 1, 2, and 18-6, 10, and 11, the co-defendants of the first instance trial at the office of the president around 10:0 on July 24, 1999, the co-defendants of the court of first instance directly sign and seal the credit transaction agreement of this case (Evidence No. 2-1) at the president's office at around 10:0,00, and the plaintiff's claims against the co-defendants of the first instance trial and the non-party 1, and the judgment of the court of first instance rejected all of the plaintiff's allegation that the plaintiff and the non-party 2 of this case were forged.

B. Establishment of fraudulent act

Unless there exist any special circumstances, a debtor in excess of his/her obligation sells the land, which is the only property, to a third party and completed the registration of ownership transfer, constitutes a fraudulent act with the knowledge that it would prejudice the creditor (see Supreme Court Decisions 2002Da62036, Mar. 25, 2003; 97Da57320, May 12, 1998). As seen earlier, the co-defendant of the first instance court, who was in excess of his/her obligation, concluded a sales contract on the real estate of this case, which is the only valuable property with the defendant as part of the creditor, with the defendant as part of the creditor, constitutes a fraudulent act detrimental to the plaintiff's interest, barring any special circumstance, since it reduced joint security in relation to the plaintiff, and barring any special circumstance, it would constitute a fraudulent act detrimental to the plaintiff's interest. In light of the property status of the co-defendant of the first instance court at the time, the time when the sales contract was concluded, the relationship between the co-defendant of the first instance and the defendant, the beneficiary.

3. Judgment on the defendant's assertion

(a) The assertion that a fraudulent act was not committed;

(1) At the time of the conclusion of the instant sales contract, the Defendant asserted that the registration of creation of a neighboring mortgage equivalent to the maximum debt amount of KRW 250 million was completed regarding the instant real estate at the time of the conclusion of the instant sales contract, but the market price of the instant real estate does not exceed the amount of the secured debt of the said right to collateral, so even if the co-defendant of the first instance trial sold the instant real estate to

If a security right has been established on an object transferred by a debtor, only the remaining part of the object which remains after the amount of the secured debt is deducted from the amount of the secured debt. If the amount of the secured debt exceeds the price of the object, the transfer of the object shall not be deemed a fraudulent act (see Supreme Court Decision 2000Da42618, Oct. 9, 2001), Gap 3-1 and 2-2, the market price appraisal of the original branch of the first instance court was entrusted to the director of the Korea Appraisal Board of the Korea Appraisal Board of the Korea Appraisal Board of the Korean Bank, and the fact-finding on the director of the Korean Bank, as of August 9, 1996, the debtor joint defendant of the first instance court, the maximum debt amount of 200 million won, the joint defendant of the first instance court, the joint defendant of the first instance court, the joint defendant of the first instance court, the joint defendant of the first instance court, and the joint defendant of the second instance court, the market price of each of the real estate in this case cannot be acknowledged to 2500 million won.

(2) The Defendant asserts to the effect that the sales contract of this case was not a fraudulent act, on the following grounds: (a) the co-defendants in the first instance court’s co-defendants in the amount of KRW 240,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won; (b) the co-defendants in the first instance court’s co-defendants in the amount of KRW 50,00,000,000,000,000,000,000,000,000,000,000,000,000,00

First, with respect to whether the Defendant had a loan claim of KRW 60 million against the co-defendant in the first instance trial and paid an additional amount of KRW 20 million with the purchase price in the instant case, there is no evidence to acknowledge it otherwise. Rather, according to each of the evidence Nos. 2 and 17, the co-defendant in the first instance trial, stating that “The Defendant agreed to set forth an accurate purchase price at the time of selling the instant real estate and pay KRW 240 million to the Defendant and KRW 180 million at the time,” the Defendant’s claim of KRW 60 million was not included in the purchase price, and that the Defendant’s claim of KRW 20,000,000,000,000,000,000 was presented to the co-defendant in the name of the first instance court as evidence that the Defendant paid to the co-defendant in the first instance trial as part of the purchase price, and there is no reason to acknowledge the Defendant’s purchase price of KRW 25,00,000.2.

B. Good faith argument

(1) At the time of entering into the instant sales contract, the Defendant and the co-defendants of the first instance court did not entirely anticipate the circumstances that the co-defendants of the first instance court would be placed in the state of insolvency in the future, because they were unaware of the fact of entering into the instant sales contract, and if they were aware of such circumstances, they did not trade the instant real estate, so they asserted to the effect that they constitute a bona fide beneficiary.

(2) It does not mean that the debtor's bad faith, i.e., intent to harm the creditor, rather than actively desire to dispose of the debtor's property, it is sufficient that the debtor's act of disposal of the debtor's property is sufficient to recognize the fact that the joint security of the claim is deficient due to the decrease of the debtor's property or the joint security that has already been insufficient is insufficient to fully satisfy the creditor's claim due to the lack of one story, and as long as the debtor's intent to harm is recognized, the beneficiary is presumed to have been malicious. In addition, there is insufficient evidence to acknowledge that the parts of the evidence No. 17, No. 18-5, and No. 6 are in good faith, and there is no other evidence to acknowledge it. Rather, as seen earlier, the co-defendant of the first instance trial knew of the loan contract of this case by directly signing and sealing the letter of credit transaction in this case. Therefore, the defendant'

4. Scope of revocation of fraudulent act and restoration to original state;

A. Principle of value compensation

In a case where a legal act regarding real estate constitutes a fraudulent act, such fraudulent act shall be deemed to be established only within the extent of the balance obtained by deducting the secured debt amount of the right to collateral from the value of the real estate where a fraudulent act was committed with respect to the real estate on which the right to collateral security has been established.

Therefore, in the event that the registration of creation of a mortgage was cancelled due to a repayment after a fraudulent act, etc., cancellation of the fraudulent act and the order to recover the real estate itself is an order to recover the portion that was not provided as joint collateral for the general creditors. Therefore, it would result in a violation of fairness and fairness. Therefore, only cancellation of the fraudulent act and compensation for the amount equivalent to the value can be sought from the value of the real estate only to the extent of the balance obtained by deducting the secured debt amount of the right to collateral security from the value of the real estate, and such calculation shall be based on the date of conclusion of the pleadings at fact-finding court (see Supreme Court Decision 200Da664

B. Scope of compensation for value

With respect to the instant real estate at the time of the conclusion of the instant sales contract, the fact that the registration of the establishment of a new bank under the name of the joint defendant of the first instance court, the joint defendant of the first instance court, the maximum debt amount of 200 million won was completed on January 21, 2000 by the debtor joint defendant of the first instance court, the joint defendant of the debtor of the first instance court, and the joint defendant of the maximum debt amount of 50 million won as of January 21, 2000 by the registration office as of August 9, 1996, and the fact that the registration of the establishment of a new bank under the name of the joint defendant of the debtor of the first instance court, as to the instant real estate at the time of the conclusion of the instant sales contract, was completed respectively. In full view of the results of the fact that the first instance court's inquiry about the head of the Korean bank's office of the first instance, and the fact that the market price of each of the instant real estate was revoked on October 29, 20020.

Therefore, 161,863,769 won (within the scope of KRW 500 million and damages for delay) remaining after deducting KRW 240,428,821 of the actual secured debt amount of each of the above secured claims, which was cancelled at KRW 402,292,590 as at the time of closing the argument of the instant real estate, as the joint collateral value of the instant real estate, is the joint collateral value, and the scope of revocation of fraudulent act and compensation for damages.

C. Whether the lease deposit is deducted

(1) On June 3, 2002, before the conclusion of the instant sales contract, Nonparty 5 leased 20 square meters on the left-hand side of the first floor among the instant real estate from the co-defendants of the court of first instance on June 3, 2002, and one year for the lease period. On August 5, 200, the Defendant registered the business, obtained the fixed date on October 26 of the same year, and obtained the opposing power and preferential rights. Nonparty 6, from the co-defendants of the court of first instance on May 15, 200, leased 30 square meters on the right-hand side of the instant real estate from the expiration of the lease period of one year, and renewed the lease contract after the expiration of the lease period of 1,000,000 won, 1,000 won, 2,000 won, and 2,000 won, 2,000 won, and 301,000 won, 2,001.

(2) Where a sales contract for real estate is revoked on the ground that it is a fraudulent act and orders compensation for value due to restitution, the opposing power as stipulated in Article 3(1) of the Housing Lease Protection Act shall not be deducted from the value of the real estate to be compensated by the beneficiary unless there are special circumstances, such as the cancellation of the sales contract for real estate and the order for compensation for value due to restitution. However, under Articles 6 and 7 of the Enforcement Decree of the Commercial Building Lease Protection Act, the scope of the deposit amount to be preferentially reimbursed in the case of door-to-door real estate which is the location of the real estate in this case is not more than 25 million won, and the scope of the deposit amount to be preferentially reimbursed is not more than 75 million won, unless the beneficiary has a preferential right to payment after obtaining a fixed date from the lease contract, or is a small lessee under the Housing Lease Protection Act.

(3) In the instant case where senior mortgage was established with regard to the instant real estate, ① each of the above lessees obtained a fixed date after the conclusion of the instant sales contract, which is a fraudulent act, and it is clear that all of the above lessees obtained a fixed date after the conclusion of the instant sales contract, as well as the Defendant’s assertion that each of the above lease deposits does not constitute a small lessee entitled to preferential reimbursement exceeding KRW 25 million, and ② according to each of the evidence Nos. 9 and 10-3, each of the above lessees obtained a fixed date, the fact that each of the above lessees obtained a fixed date is not a lease contract concluded with the co-defendant of the first instance trial, but a lease contract concluded with the Defendant after the fraudulent act, and there is no evidence that each of the above lessees has a preferential right to reimbursement at the time of the fraudulent act, or that they are a small lessee under the Commercial Building Lease Protection Act, the above argument by the Defendant that each of the lease deposits should be deducted in ordering compensation

5. Conclusion

Therefore, the sales contract concluded on June 19, 200 between the defendant and the co-defendants of the first instance court on the real estate of this case shall be revoked within the limit of 161,863,769 won, and the defendant is obligated to pay to the plaintiff 161,863,769 won and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day after the day when the judgment became final and conclusive to the day when the judgment was fully paid. Thus, the plaintiff's claim of this case of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as there is no reason. Since the judgment of the first instance is partially unfair, the defendant's appeal is partially accepted, and the judgment of the first instance shall

［［별 지］ : 부동산 목록 생략］

Judges Kim Chang-tae (Presiding Judge)