2014Da229177 Claims

Credit Guarantee Fund

A

Chuncheon District Court Decision 2014Na5019 Decided October 14, 2014

July 9, 2015

Of the part against the defendant in the judgment below, the part against the defendant shall be reversed, and that part of the case shall be remanded to the Gangnam District Court Panel Division.

The defendant's remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the grounds of appeal as to the part of revocation of fraudulent act, the lower court, based on its stated reasoning, acknowledged that the conclusion of the instant mortgage contract with the Defendant on the instant real estate in excess of the debt constitutes a fraudulent act detrimental to the other creditors of the Plaintiff including the Plaintiff, and thus, accepted the Plaintiff’s claim for revocation of fraudulent act seeking revocation of the instant mortgage contract. Examining the relevant legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of logic and experience and free evaluation of evidence

2. As to the ground of appeal on the part of the objection against distribution

A. Although the obligor created a collateral security agreement on the real estate owned by a specific creditor in order to secure the obligation to a specific creditor, the said agreement was revoked on the ground that it was a fraudulent act, if the obligee obtained a decision of provisional seizure with the secured claim above as the secured claim and obtained a decision of provisional seizure prior to the completion date for demanding a distribution in the auction procedure on the said real estate, it is not possible to receive a dividend from the auction procedure on the said real estate as the person entitled to demand a distribution, but to receive a dividend in the position of a legitimate person entitled to demand a distribution (see Supreme Court Decision 2011Da107818, Mar. 27, 2014).

B. According to the reasoning of the lower judgment and the record, on March 7, 2013, the deceased B (hereinafter referred to as “the deceased”) entered into a mortgage agreement with the Defendant on the instant real estate owned by the deceased to secure the deceased’s obligation to the Defendant, and on March 8, 2013, the establishment of a mortgage agreement was completed with respect to the instant real estate on the deceased on March 8, 2013, and thereafter the decision to commence voluntary auction on the instant real estate was rendered upon the request of the Red Saemaul Depository, which is the senior mortgagee,. The Defendant filed an application against the deceased’s heir for provisional attachment as the preserved claim of KRW 31,749,98 with respect to the instant real estate, with the sum of principal and interest of the loans secured by the establishment of a mortgage agreement, which is the secured claim for the instant real estate. The said court accepted the application and completed the provisional attachment registration on the instant real estate by obtaining a decision to distribute dividends from the Defendant to the court prior to the completion date of the provisional auction procedure, and the Plaintiff was entitled to demand dividends from the Defendant during the auction procedure.

In light of the above legal principles in light of the above facts, the defendant has the right not only as a mortgagee but also as a person entitled to a provisional seizure who demanded a distribution in the distribution procedure in this case, so even if the above contract to a collateral security is revoked by fraudulent act and the status as a person entitled to a provisional seizure who demanded a distribution of the amount by the plaintiff is not recognized, the defendant may assert that the contract should be distributed to himself/herself, who has the status as a person entitled to a provisional seizure who has the right to a demand a distribution of the amount by dividends. In this case, the

C. Nevertheless, the court below accepted the Plaintiff’s claim of demurrer against distribution, which requested correction of the distribution schedule by eliminating all the amount distributed to the Defendant, without making any judgment as to the Defendant’s assertion that if the Defendant’s status as a mortgagee is not recognized, the amount should be distributed as a person holding a right to collateral security, and distributing the distribution schedule to the Plaintiff. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the obligee’s right of revocation and the lawsuit of demurrer against distribution, or in the omission of judgment by the Defendant

3. Conclusion

Therefore, the part against the defendant among the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok