2018Na20209 Revocation of Fraudulent Act

A Stock Company

Attorney Choi Han-chul, Counsel for the plaintiff-appellant

B A.

Attorney Kim Jong-hoon, Counsel for the plaintiff-appellant

Gwangju District Court Decision 2017Gahap52158 Decided December 14, 2017

June 29, 2018

July 20, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 57,095,982 won and 489,843,152 won with 20% per annum from December 31, 2011 to the date of full payment, 67,252,830 won with 15% per annum from the day following the delivery of the copy of the lawsuit in this case to the day of full payment.

1. Basic facts

(a) First loan to ○○;

주식회사 ○○ 저축은행( 이하 '○○저축은행'이라 한다)은 2006. 6. 7.경 그 명의로 이 ○ 웨딩홀부페를 운영하던 한○○에게 15억 5,000만 원(이하 '이 사건 대출금'이라 한 다 ) 을 대출하여 주었는데, ○○웨딩홀부페의 실질적 운영자인 김○○과 그 처인 한■■ 가 그 대출금 채무를 연대보증하였다.

On June 7, 2006, Han○○○ concluded a real estate security trust agreement with the K non-real estate trust principal food company (hereinafter referred to as "K non-real estate trust") with the first priority beneficiary as the ○○ Savings Bank on the real estate listed in the separate sheet of Busan, Dong-dong (hereinafter referred to as the "real estate of this case"), and completed the registration of transfer of ownership under the name of K non-trust on the same day.

(b) Establishment and extension of lending period of a stock company C;

On May 19, 2008, the Han○○○ and Kim○○ established a corporation (hereinafter referred to as “C”) that is engaged in wedding business, restaurant business, parking lot business, real estate leasing business, etc. with the real estate address of this case as the place of business around May 19, 2008, with the knowledge that it is favorable for the corporation to establish a separate corporation to repay existing loans and to save taxes with the exchange of one financial right (one bank).

After that, on July 2008, when the maturity of the instant loan arrives, the Han○○○ and Kim○○ requested the ○○ Savings Bank to extend the loan term by six months after adding C to ○○ Savings Bank as a joint guarantor and promising to repay the loan through the exchange of the first financial right, with the exception of the loan amounting to KRW 83 million out of the instant loan, the remainder of KRW 1.467 billion, excluding the loan amounting to KRW 83 million, and the ○○ Savings Bank extended the loan term by January 7, 2009 under the above conditions.

(c) Provisional seizure of bonds by ○ Savings Bank;

한○○, C, 김○○, 한■■(이하 '한○○ 등'이라 한다 )가 2008. 10.경부터 수차례 대 출금 이자의 변제를 연체하자, ○○저축은행은 2008. 12. 3. C의 카드사들에 대한 카드 매출채권을 가압류하였다( 이하 ' 이 사건 가압류'라 한다).

D. Establishment of the defendant and dissolution of C

After the provisional attachment of this case, Kim ○ established the defendant who runs a wedding business, restaurant business, parking lot business, real estate leasing business, or golf practice range business on December 16, 2008 with the real estate domicile of this case as the place of business. On January 1, 2009, the real estate of this case was leased in the lease deposit amount of KRW 20 million, monthly rent of KRW 12 million, and thereafter, he is operating a wedding business in the same place until now.

On the other hand, C was dissolved on December 2, 2013 by the Regulations on deemed dissolution of Dormant Company under the Commercial Act, and the liquidation was completed on December 2, 2016.

E. Public sale of the instant real estate

The ○○ Savings Bank, which did not pay the interest of the instant loan by Han○, etc., had conducted a real estate public sale of the instant real estate through the KF Trust around February 2009.

As a result of the real estate auction on June 22, 2009, the real estate of this case was sold at the first sale price of KRW 3.3777 billion on the date of the second sale on June 12, 2012, and the auction on June 12, 2012, which was sold at the 8.79 billion won on the 14th sale date, was sold to the Defendant on the 15th sale date, and the auction was awarded at the 850 million won on the 15th sale date.

After that, on June 25, 2012, the Defendant entered into a sales contract with K non-trust and the instant real estate, entered into a sales contract on or around August 21, 2012, paid 720 million won from net Agricultural Cooperatives (hereinafter referred to as "YAF") on or around August 21, 2012, and paid the purchase price with the money added to the loan and the Defendant’s funds, and completed registration of transfer of rights in the name of the Defendant.

F. Assignment of loans of this case

On December 30, 201, when the public sale procedure was in progress, the ○ Savings Bank transferred the instant loan claim to ○○ Entertainment Loan Co., Ltd. (hereinafter referred to as “○○○ Investment”). around January 3, 2014, ○○○○○ filed an application with the Seoul Southern District Court for the payment order of the remainder of the principal and interest (hereinafter referred to as “the remainder of the instant loan”) excluding the repayment amount and the amount recovered through the public sale procedure, and the remainder of the principal and interest (hereinafter referred to as “the remainder”) 57,095,982 won out of the instant loan, and the payment order was finalized on February 7, 2014.

After that, on May 27, 2016, ○○ Human Investment re-transfer the remainder claim of this case to the Plaintiff. Around that time, the assignment of the claim was notified to Han○ et al.

G. The appraised value of the instant real estate

The real estate in this case was offered as security at ○○ Savings Bank, and the Defendant received a loan from ○○ Savings Bank and made an appraisal of the market price on several occasions. The assessed value was as of March 8, 2006, 2.59 billion won as of July 3, 2008, 2.37 billion won as of July 3, 2008, 2.598, 323,750 won as of August 21, 2012, and 2,537,068, 510 won as of October 10, 2013.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 3 through 7, 9, 12, 13, 17 through 22, Eul evidence Nos. 1 through 5 (including the number of branches), inquiry results made to the net agricultural cooperatives of the court of first instance, the purport of the whole pleadings.

2. The plaintiff's assertion

Since the defendant is a company substantially identical to C and is established to evade the debt of the loan of this case, the defendant's assertion of legal personality separate from C on the above debt is contrary to the principle of good faith or abuse of legal personality.

Therefore, the defendant is obligated to pay C's balance of loans and delayed damage to C to the plaintiff who acquired the claim.

3. The judgment of this Court

A. Relevant legal principles

If an existing company has established a new company in substantially the same form and content as that of the existing company in order to evade debts, the establishment of the new company constitutes abuse of the existing company system in order to achieve the unlawful purpose of evading debts of the existing company. In such a case, claiming that the creditors of the existing company have a separate legal personality is not permissible in principle, and thus, a creditor of the existing company may also claim the repayment of debts against either of the two companies. Here, whether the existing company has established a new company with the intent to evade debts of the existing company shall be determined by comprehensively taking into account various circumstances, including management conditions or financial status at the time of the closure of the existing company, the time of the establishment of the new company, the existence and degree of assets useful for the new company's private investment in the existing company, the existence of assets transferred from the existing company to the new company, and whether the reasonable price has been paid if there is assets transferred from the existing company to the new company (see Supreme Court Decision 2009Da7327, Jan. 14, 2010).

B. Determination

In light of the following circumstances acknowledged by comprehensively taking account of the aforementioned facts and the purport of the entire pleadings, it is insufficient to recognize that C established a defendant for the purpose of evading its debts only with the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge it.

The plaintiff's assertion is not accepted.

① In light of the result of appraisal and assessment conducted by Hancheon Savings Bank in the course of lending to the Defendant, not only at the time of lending but also at the time of establishment of the Defendant, the value of the instant real estate offered as security for the instant loan exceeds the amount of the relevant loan. In the situation where sufficient collateral for the loan is provided, it is difficult to readily conclude that the Defendant was established for the purpose of evading obligations solely on the grounds that C established for the same business at the same place as the place where he had engaged in wedding business.

② Although there were sufficient collateral, the Plaintiff’s failure to recover all of the claims is due to the fact that the wedding hall was located in the city of the Gu and the business district was not activated more than 14 times since the commencement of the public auction, and the real estate auction price of KRW 850 million was lower than the real estate auction price of KRW 850,000 after the commencement of the public auction. Therefore, it cannot be deemed that the Defendant was established even at the time of the establishment of the Defendant, or that there was a lack of collateral against the instant loan, or that the Defendant was established under the recognition of the lack of collateral by Kim○○○.

③ After establishment, the Defendant entered into a lease agreement with the instant real estate and paid all the deposit for lending and borrowing of the instant real estate, and carried out a wedding business at the same time. In addition, the Defendant acquired the instant real estate through a public sale procedure, and paid all the purchase price with KRW 720 million borrowed from the YC. Meanwhile, it is insufficient to recognize that the submitted evidence alone does not pay a reasonable price, and that there was an asset useful for the Defendant.

④ C와 피고의 대표자나 주주 중 일부가 일치하기는 하나, 대부분 임원이나 주주들 은 일치하지 아니하고, 김○○, 한■■ 외에는 양 회사의 임원이나 주주들 구성에 특별 한 신분관계가 있다고 단정하기 어렵다.

4. Conclusion

The plaintiff's claim of this case shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is justifiable with the conclusion of the judgment. The plaintiff's appeal is dismissed on the ground that it is without merit

Nowon-gu (Presiding Judge)

Kim Dok-do

Salary class root