Credit Guarantee Fund (Attorney Park Jae-soo, Counsel for the plaintiff-appellant)

Defendant 1 and 2 others (Law Firm Sejong, Attorneys Im Jong-ho et al., Counsel for the defendant-appellant)

December 18, 2002

Cheongju District Court Decision 2001Da5388 Delivered on April 11, 2002

1. The part concerning defendant 2 and 3 of the judgment of the court of first instance with the exception of paragraph (1) of this Article shall be revoked;

2. The part of the plaintiff's primary claim against the defendant 2 and 3, excluding Paragraph 1 of the judgment of the court of first instance, is dismissed.

3. As to the shares of 19/24 out of each real estate listed in the separate sheet, Defendant 2 shall implement the procedure for registration of cancellation of ownership transfer registration completed by Defendant 1 on January 9, 2001 by receipt of No. 1257 of the Seoul District Court Branch of North Korea Branch of the Seoul District Court, and Defendant 3 shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed by Defendant 2 under Article 1258 of the same Act on the same day as the same day

4. Defendant 1’s appeal is dismissed.

5. Of the total litigation cost, the part arising between the Plaintiff and Defendant 1 shall be borne by Defendant 1. The part arising between the Plaintiff, Defendant 2 and Defendant 3 shall be divided into two parts, and one of them shall be borne by the Plaintiff, and the remainder shall be borne by the said Defendants.

1. Purport of claim

Defendant 1 jointly and severally with the Plaintiff as Co-Defendant 1 corporation, 2, 3, 4, and 5 in the first instance trial, jointly and severally with the Plaintiff, shall pay 92,381,187 won and 18% per annum from March 26, 2001 to April 27, 2001; and 25% per annum from the next day to the day of full payment; with respect to each of the real estate indicated in the separate sheet (hereinafter referred to as the instant real estate); Defendant 1 and Defendant 2 revoked the sale contract as of September 30, 200; Defendant 2 completed the procedure for cancellation of ownership transfer registration with the Seoul District Court’s branch branch office of the Seoul District Court’s branch office of Dobong, and completed the procedure for cancellation of ownership transfer registration with respect to each of the instant real estate ownership transfer registration as of January 9, 201 (hereinafter referred to as Defendant 2’s claim for cancellation of ownership transfer registration as of the instant case; Defendant 251/25 of the ownership transfer registration as of this case.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendants shall be revoked, and all of the plaintiff's claims against the defendants shall be dismissed.

1. Facts of recognition;

The following facts do not conflict between the parties, or may be acknowledged in full view of Gap evidence 1 through 5, evidence 6-1, evidence 6-2, evidence 8-3, evidence 8-4, evidence 12-1 through 4, evidence 1-1, 2, Eul evidence 2, evidence 2, Eul evidence 2, Eul evidence 3, 4, Eul evidence 3, 4, Eul evidence 5-1, Eul evidence 6, 11, Eul evidence 1, Eul evidence 1, 8, 9, witness of the first instance trial, witness non-party 1 and non-party 2's testimony, non-party 1 and witness of the first instance trial, witness of the first instance trial and witness of the non-party 2, witness of the non-party 1, 8, 9, and witness of non-party 1, non-party 2, and witness of non-party 1, non-party 2, each of whom is contrary to this, and non-party 2's testimony.

(1) Nonparty 2, the wife of Defendant 1, had traded bonds with Defendant 3 and Nonparty 1 on December 199, and had Defendant 3 bear the obligation of borrowing KRW 60,00,000 and KRW 35,00,00 to Nonparty 1. Defendant 3 and Nonparty 1 demanded Nonparty 2 to pay the above obligation by means of the payment of the above obligation, which was made within the real estate owned by Defendant 1, and demanded Nonparty 2 to pay the above obligation. Nonparty 2 notified Defendant 1 on September 200 and obtained the consent of Defendant 3 and Nonparty 1 to the effect that if the above obligation was not repaid until December 200, it would be possible to dispose of the instant real estate as payment in kind.

(2) On September 30, 200 at Defendant 3’s request, Nonparty 2 concluded a sales contract with Defendant 2, 3, and Nonparty 1 (hereinafter “Defendant et al.”) to sell the instant real estate at KRW 135,00,000 on behalf of Defendant 1, and to pay KRW 95,00,000 out of the purchase price as the above loan debt against Defendant 3 and Nonparty 1, Nonparty 2 would substitute for the payment of KRW 95,00,000 out of the purchase price. If Nonparty 2 paid the above loan debt by December 2, 200 (hereinafter “the sales contract in this case”). In addition, on the same day, the Defendant et al. agreed to invalidate the above loan loan debt by Defendant 2, 25,00,000, KRW 60,000,000, Nonparty 3 purchased the instant real estate at the same time by selling it from Defendant 1’s investment rate of KRW 350,00,000.

(3) Meanwhile, Defendant 1 was appointed as the representative director of the co-defendant 1 of the first instance court on February 22, 200 at the request of Co-defendant 4 of the first instance court, which practically manages Co-Defendant 1 of the first instance court (hereinafter “Co-Defendant 1 of the first instance court”). Defendant 1 was merely a nominal representative director who is paid monthly salary of KRW 2,00,000 from Co-Defendant 4 of the first instance court while engaging in an order for construction work at the Seoul branch office of Co-Defendant 1 of the first instance court, and was merely a nominal representative director who is paid monthly salary of KRW 2,00,000 from Co-Defendant 4 of the first instance court on the basis of the order.

(4) On November 30, 200, the Plaintiff entered into a credit guarantee agreement with the co-defendant 1 of the first instance court to guarantee the return of the principal and interest of the loan within the scope of KRW 90,00,000,00,000 as the guaranteed principal from November 30, 200 to November 13, 201. In the event that the co-defendant 1 of the first instance court failed to repay the above loan amount to the Cho Jong Bank, and the Plaintiff subrogated for it, the co-defendant 1 of the first instance court agreed to pay to the Plaintiff the compensation amount at the ratio as determined by the Plaintiff from the date of payment on behalf of the Plaintiff to the date of payment on behalf of the Plaintiff, as the co-defendant 1 of the first instance court, the co-defendant 4 of the first instance court, and the co-defendant 3 of the first instance court as the co-defendant 4 of the first instance court and the co-defendant 5 of the first instance court as the co-defendant 3 of the first instance court.

(5) Co-Defendant 1 of the first instance trial was issued a credit guarantee certificate by the Plaintiff pursuant to the above credit guarantee contract and submitted it to the Cho Heung Bank for a loan of KRW 100,000,000 for corporate general funds on November 30, 200. However, on January 11, 2001, the payment was defaulted on January 11, 200, and the disposition of transaction suspension was imposed, and lost the interest on the above loan obligations.

(6) Meanwhile, by the end of December 200, Nonparty 2 failed to repay the debt borrowed to Defendant 3 and Nonparty 1, and both parties and Defendant 2 failed to take the procedure for ownership transfer registration of the instant real estate in accordance with the instant sales contract at the Sungsung Certified Judicial Scriveners Office on January 5, 2001, but the relevant documents were insufficient. After that, on January 8, 2001, Defendant 1 delegated the affairs concerning the application for ownership transfer registration of this case to the full-time certified judicial scrivener on the place where Nonparty 2 and the Defendant were present, and Defendant 2 delegated the affairs concerning the application for the ownership transfer registration of this case to Jungsung upon the request of Defendant 3, who might dispose of the instant real estate by himself. Accordingly, on January 9, 2001, the ownership transfer registration of this case and the right to claim ownership transfer registration of this case was completed, respectively.

(7) The Plaintiff paid the principal and interest of the instant loan amounting to KRW 91,760,547 on March 26, 2001 at the request of the Cho Jae-Hy Bank. The Plaintiff paid the principal and interest of the instant loan amounting to KRW 691,820 on a substitute payment, and received KRW 71,180 on a substitute payment. Meanwhile, the Plaintiff’s rate of damages for delay determined by the Plaintiff is 18% per annum from March 26, 2001 to the date.

(8) Defendant 1 is insolvent as of the date of the completion of the instant registration of ownership transfer and the provisional registration of the right to claim ownership transfer as of the date of the closing of argument in the trial.

2. Determination as to the claim for indemnity

According to the above facts, Defendant 1, jointly and severally with Co-Defendant 1 of the first instance trial, has the obligation to pay the Plaintiff the amount of KRW 92,381,187 [The amount of subrogation 91,760,547 + the amount of substitute payment 620,640 won [the amount 691,820 won - 71,180 won] and the amount of subrogation 91,760,547 won, which is the date of subrogation for the amount of 91,760,547 won, from March 26, 2001 to April 27, 2001, which is the date of delivery of a copy of the complaint of this case, 18% per annum, which is the rate of delay damages, and 25% per annum as stipulated in the Act on Special Cases concerning Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

3. Determination as to the claim based on the obligee's right of revocation (main claim)

A. The plaintiff's assertion

The Defendants, in collusion with Defendant 1 to evade the claim for reimbursement against the Plaintiff, completed the registration of the ownership transfer registration and the claim for ownership transfer registration of this case. In addition, even if Defendant 1 sold the instant real estate to Defendant 3 and Nonparty 1 as a substitute payment in order to pay the loan debt to Defendant 1, Defendant 1’s wife, the Plaintiff offered the instant real estate as a substitute payment to Defendant 3 and Nonparty 1, which is the only property of Defendant 1, as a substitute payment, with the intent of having Defendant 3 and Nonparty 1 obtain the satisfaction of the claim preferentially only with Defendant 3 and Nonparty 1, by being aware that the joint security of other creditors, including the Plaintiff, has decreased and that it would be more unfavorable than the previous one. Accordingly, the instant real estate constitutes both the instant transfer registration and the provisional registration of ownership transfer claim and the fraudulent act, and each of them constitutes a fraudulent act, at the same time the Plaintiff’s obligee’s cancellation of the sales contract and the reservation of the ownership transfer registration and the claim for ownership transfer registration of this case.

B. Determination as to the establishment of fraudulent act

In order to evade Defendant 1’s indemnity liability against the Plaintiff, there is no evidence to acknowledge the completion of the registration of ownership transfer and ownership transfer claim.

In addition, a claim that can be protected by the obligee’s right of revocation must exist or at least there should be legal relations that form the basis for the establishment of the claim. In light of the above facts, in a case where the defendant 1 and the defendant 3 and the non-party 1 were leased the form of the sales contract of this case on September 30, 200 and the non-party 2 could not repay the above loan obligations to the defendant 3 and non-party 1 until the end of December 2000, it is reasonable to view that the ownership transfer registration of this case was completed on January 9, 201 based on the above promise of accord and satisfaction. However, if the payment was made on the basis of the promise of accord and satisfaction, whether the payment constitutes fraudulent act should be determined at the time of the promise of accord and satisfaction, unless it is clearly different from the content of the promise of accord and satisfaction, and as long as the ownership transfer registration of this case was not established after the determination of the plaintiff’s right of reimbursement was made at the time of the above promise of accord and satisfaction.

4. Determination as to a claim based on a creditor's subrogation right

A. The plaintiff's assertion

Even if Defendant 1’s act of selling the instant real estate as a substitute payment does not constitute a fraudulent act, the joint purchase of the instant real estate by the Defendant, etc. and the completion of the registration of ownership transfer under Defendant 2’s sole name constitutes a title trust with respect to Defendant 2’s shares (19/24), the registration of ownership transfer in Defendant 3 and Nonparty 1’s title transfer corresponding to the said shares is null and void, and Defendant 3 and Nonparty 1’s share in the provisional registration of ownership transfer claim under Defendant 3’s title transfer claim. Accordingly, in order to preserve the above claim for reimbursement against Defendant 1, the Plaintiff seek implementation of the registration procedure for ownership transfer and the cancellation of ownership transfer claim against Defendant 2 on behalf of the above Defendant 1.

B. Determination

Article 271(1) of the Civil Act provides that several persons shall be jointly owned when they own an object as a partnership under the provisions of law or a contract. Article 704 of the Civil Act provides that an association member’s investment and other property of the association shall be jointly owned by the association members. Thus, if an association whose business purpose is to carry out a business as an association or an association’s property, it shall be jointly owned by the association pursuant to Article 271(1) of the Civil Act. However, if the association did not make a joint ownership registration as to each share in its name, it shall be deemed that the association member held title trust with respect to each share in the name of the association members (see Supreme Court Decision 200Da30622, Jun. 14, 200). In this case, it shall be deemed that the ownership transfer registration of the real estate was null and void by the Plaintiff’s ownership transfer registration for the purpose of selling the real estate under the above 20/127 (60,000,00 won).

On the other hand, the Plaintiff, as a pecuniary claim against Defendant 1, has exceeded KRW 92,381,187, and Defendant 1 is insolvent. As such, the Plaintiff may exercise the right to claim the cancellation of each registration by subrogation of Defendant 1 as to the ownership transfer registration and the right to claim the transfer registration with respect to shares of 19/24, out of the instant real estate against Defendant 1 by subrogation of Defendant 1.

The Defendants asserted to the effect that Defendant 2 transferred the loan claims against Defendant 3 and Nonparty 1 and concluded a sales contract on the instant real estate between Defendant 1 and Defendant 2, and that the Defendant et al. did not conclude a trade agreement with the joint ownership of the instant real estate. The Defendants asserted to the effect that Defendant 2 did not have concluded a trade agreement with the joint ownership of the instant real estate. The Defendants’ assertion is without merit, on the grounds that: (a) part of the evidence Nos. 8 and 9 are consistent with the fact that Defendant 2 was transferred the loan claims against Defendant 3 and Nonparty 2; and (b) part of the testimony of Nonparty 1 and Nonparty 2 in light of the testimony of Nonparty 3 and Nonparty 1 and Nonparty 1 in the first instance trial (the Nonparty 1 stated that the aforementioned claim against Nonparty 2 was not transferred to Defendant 2); (c) there is no evidence to acknowledge it otherwise; and (d) there is no other evidence to acknowledge it.

5. Conclusion

Therefore, Defendant 1, jointly and severally with Co-Defendant 1 of the first instance trial, has the obligation to register the cancellation of ownership transfer registration of this case with Defendant 1, and to register the cancellation of ownership transfer of this case with Defendant 2, Defendant 3 has the obligation to register the cancellation of ownership transfer of this case with Defendant 1 and to register the cancellation of ownership transfer of this case with Defendant 1 as well as the part against Defendant 1 of the above defendant 1 as the above defendant's appeal from March 26, 201 to April 27, 2001, the delivery date of a copy of the complaint of this case from March 27, 201, the delivery date of a copy of the complaint of this case from March 26, 201, and 25% per annum from the next day to the day of complete payment. As to the portion of this case's real estate of this case's interest, Defendant 2 has the obligation to register the cancellation of ownership transfer of this case's provisional registration of this case. Accordingly, the above part of the plaintiff's appeal against the above defendant 2 and the defendant 3.

[Attachment List of Real Estate]

Judges Lee Jong-young (Presiding Judge)