2014Da87571 Revocation of Fraudulent Act

Bankruptcy, Busan 2 Savings Bank, Korea Deposit Insurance Corporation

A

Busan High Court (Chowon) Decision 2014Na546 Decided November 6, 2014

April 23, 2015

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. In order for a false declaration of agreement to be established, there must be an agreement with the other party as to the disagreements. If a third party directly signs and seals on loan-related documents, such as a loan-related documents, such as a loan-related agreement for consumption, the third party indicates that it is the debtor of the loan-related contract, and even if a third party has an intention to obtain a loan under the name of a third party and to use it, or has decided to repay principal and interest at another party's expense, barring any special circumstance, it is merely an intention to vest the economic effect of the loan for consumption in the name of a third party, and it cannot be deemed that there is a disagreement with the intention of a third party to vest in the economic effect of the loan for consumption and its legal effect cannot be deemed as an intention to vest in the other party. In a specific case, in order for the financial institution to recognize the existence of special circumstance as above, it should be proved that the loan-related documents belong to the actual borrower until the legal effect of the loan concerned and that it did not bear the debt to the name lender (see, e.g., Supreme Court Decision 2008Da787278.

2. First of all, the lower court determined as follows: (a) the instant loan contract was concluded between Busan 2 Savings Bank (hereinafter “BB Savings”) and B; (b) the Plaintiff, as a general successor to Busan 2 Savings Bank, has a monetary claim equivalent to the balance of the instant loan against B, the debtor, and the said claim becomes a preserved bond of the obligee’s right of revocation.

Furthermore, the court below determined that the above loan contract of this case was null and void under the name of the defendant 2, i.e., the Busan District Bank Group 2 was actively engaged in the real estate project since 201 to supplement the insolvency that occurred after the IMF, and that the name lender was recruited for the loan contract of this case and the real estate transaction contract of the Busan District Bank 200, and that the loan contract of this case was executed under the name of the Busan District Bank 200, the Busan District Bank 2000, and the loan contract of this case was signed and sealed under the name of the 2000, Busan District Bank 200, the loan contract of this case was signed and sealed under the name of the 2000, Busan District Bank 200, the loan contract of this case was signed and sealed under the name of the 2000, Busan District Bank 200, the loan contract of this case was signed and sealed under the name of the 2000, Busan District Bank 2000.

3. However, we cannot accept the above judgment of the court below as it is.

First of all, among the circumstances based on which the court below determined that the loan contract of this case constitutes a false conspiracy, the details and purpose of the loan contract of this case, the purpose of the loan, the interest rate, etc. are not specified in the loan agreement of this case, the Busan2 Savings Bank did not properly investigate the credit of the defendant, and the defendant does not pay interest on the loan of this case or have not been urged to pay by the Busan2 Savings Bank, etc., it is merely a common circumstance for the loan of this case, or it is not appropriate to take the defendant's contractual obligation as the grounds for denying the defendant's contractual obligation, which is clearly accepted the debtor's status under the loan contract of this case by directly signing and sealing the loan agreement of this case, or it is not appropriate to take the above testimony of Ro, which is an employee of the Busan2 Savings Bank, as the ground for denying the loan of this case,

The following circumstances revealed by the reasoning of the lower judgment, the first instance court, and the evidence admitted by the lower court, namely, B, not only directly signed and sealed a loan agreement but also issued a certificate of its personal seal impression, and there is no evidence suggesting that the employee of the Busan 2 Savings Bank received the seal from B whenever arranging the record, and there is no evidence suggesting that at the time of the instant loan agreement, the Busan 2 Savings Bank would not be held liable for the instant loan agreement from Busan 2 Savings Bank at the time of the instant loan agreement, and that between February 28, 2007 and December 29, 2010, it is difficult to view that B, apart from the fact that the loan agreement was concluded on February 19, 201 to December 21, 201, it was difficult to view that B actively obtained economic benefits from the side of the Busan 200,000 won savings bank to the Defendant with the view of the legal principles as to the ownership transfer registration as well as the ownership transfer registration as stated above.

Nevertheless, the lower court determined that the instant loan contract was null and void on the grounds as stated in its reasoning. In so determining, the lower court erred by misapprehending the elements to be considered in determining whether a conspiracy is constituted or not, and by misapprehending the legal doctrine on the burden of proof, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Jong-hee

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant