Seocheon Livestock Cooperatives (Attorney Park Young-young, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Kim Won-ho, Counsel for the defendant-appellant)

April 1, 2010

Daejeon District Court Decision 2008Gahap1221 Decided October 23, 2009

1. Of the judgment of the court of first instance, the ancillary claim against Defendant 2 shall be amended as follows:

A. The part of the joint and several surety contract concluded between Nonparty 1 and Defendant 2 on January 18, 2007, which exceeds KRW 104,135,103, out of the joint and several surety contract concluded between Nonparty 1 and Defendant 2, with the loan amount of KRW 250,000,00, shall be revoked.

B. Defendant 2 notified Nonparty 1 of the cancellation of a joint and several guarantee contract as above.

C. The plaintiff's remaining claims are dismissed.

2. Defendant 1’s appeal is dismissed.

3. The costs of appeal between the Plaintiff and Defendant 1 shall be borne by Defendant 1, and 2/5 of the total costs of appeal between the Plaintiff and Defendant 2 shall be borne by the Plaintiff, and 3/5 by Defendant 2, respectively.

4. In paragraph 1 of the order of the judgment of the first instance, the phrase “cases of application for provisional seizure against immovables 2008Kahap112” shall be corrected to read “cases of application for provisional seizure against immovables 2008Kahap113”.

1. Purport of claim

On February 21, 2008, Cheongju District Court 2008Kahap113 dated February 21, 2008, it is confirmed that there is no loan obligation of KRW 195,00,000 against Defendant 1.

On February 21, 2008, Cheongju District Court 2008Kahap112 dated February 21, 2008 confirmed that there is no loan obligation of KRW 250,00,000 against Defendant 2. Preliminaryly, the joint and several surety contract between Nonparty 1 and Defendant 2 dated January 18, 2007 entered into between Defendant 1 and Defendant 2 is revoked, and Defendant 2 notified Nonparty 1 that the above joint and several surety contract was revoked.

2. Purport of appeal

Defendant 1: Revocation of the first instance judgment. The plaintiff's claim against the above defendant is dismissed.

Defendant 2: Revocation of the part against the above defendant among the judgment of the first instance court. The plaintiff's conjunctive claim against the above defendant is dismissed.

1. Scope of the trial of this court against the defendant 2;

In the first instance court, the Plaintiff claimed against Defendant 2 for the confirmation of non-existence of the loan obligation of KRW 250,00,000 in the Cheongju District Court 208Kahap112, the claim amounting to KRW 250,000 as stated in the purport of the claim. Nonparty 1 who caused a fraudulent act and the above Defendant filed for the revocation of the joint and several surety contract amounting to KRW 250,000 on January 18, 2007, respectively. The court of first instance dismissed the primary claim and declared a judgment citing the conjunctive claim.

As to this, the plaintiff appealed only the defendant 20,00 without filing an appeal, and the scope of the trial in this court shall be limited to the conjunctive claim, so this court shall judge only the conjunctive claim against the defendant 2.

2. Basic facts

A. The plaintiff filed a lawsuit against the non-party 3 and the non-party 1 for the revocation of the fraudulent act, etc. by the Daejeon District Court of Law No. 2006Gahap1623, Sep. 14, 2007, and the non-party 1 paid to the plaintiff 50 million won and the non-party 1 paid 20% interest per annum from Jan. 4, 2007 to the day of complete payment. The judgment of the court below that the non-party 1 and the non-party 3 completed the above contract on Aug. 17, 2006, the non-party 1 and the non-party 3 paid 1,164 square meters per annum (the non-party 1 omitted) and the non-party 1 and the non-party 3 received the above contract on Sep. 28, 2006 and revoked the transfer of ownership registration procedure.

B. According to the above Daejeon District Court Decision 2006Gahap1623 decided on January 15, 2008, the plaintiff filed an application for a compulsory auction as to the land and its ground buildings located in the New Sincheon-gun, Seocheon-gu, Seocheon-gu, Chungcheongnam-do, Dong-dong (Saeng lot number 1 omitted) (hereinafter collectively referred to as the "real estate of this case") owned by Non-party 1, and the land located in the same Ri (detailed lot number 2 omitted) (hereinafter referred to as the "real estate of this case"), which was held on January 15, 2008 (hereinafter referred to as the "auction auction procedure following the above decision to commence the auction procedure").

C. Meanwhile, Defendant 2 filed an application for provisional seizure of real estate with the Cheongju District Court 2008Kahap112 by providing the loan claim of KRW 250,000,000 against Nonparty 1 as the preserved right, and Defendant 1 filed an application for provisional seizure of real estate with the Cheongju District Court 2008Kahap113 on the loan claim of KRW 195,00,000 against Nonparty 1 as preserved right.

On February 21, 2008, the above court accepted the defendants' application for provisional seizure against each of the above real estate, and rendered a provisional seizure order against the non-party 1/2 of the real estate of this case and the Kucheon-dong (Sacheon-dong No. 3 omitted) of the Cheongcheon-dong (Sacheon-dong No. 3

D. After that, on March 3, 2008, the Defendants reported a right as a provisional seizure holder and demanded a distribution in the auction procedure of this case.

E. Defendant 2 is the husband of Nonparty 1, who is the husband of Nonparty 2, and Defendant 1 is the husband of Nonparty 2.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, Gap evidence Nos. 3 and 4, Gap evidence Nos. 1, 2, and the purport of the whole pleadings

3. Determination as to the claim against Defendant 1

2. Of the judgment of the first instance court, the part concerning the judgment on the Plaintiff’s claim against Defendant 1 is cited as it is. However, the part concerning the judgment on the Plaintiff’s claim against Defendant 1 is corrected as follows: “21,20,37” in the 5th page 12 as “21,30,37”; “Cheongju District Court 208Kahap112” in the 8th page 14 as “Cheongju District Court 2008Kahap113”; and “Defendant” in the 5th page 14 as “Cheongju District Court.”

4. Determination on the conjunctive claim against Defendant 2

(a) Facts of recognition;

According to the statements in Eul evidence 2-1, 2, 3, and Eul evidence 3-4-3 and the testimony of non-party 2 at the court of first instance, defendant 2 transferred KRW 250,00,00 to the bank account of non-party 1's husband on January 18, 2007. The non-party 2 prepared a loan certificate with interest rate of 25% per annum on the same day and due date of payment of October 30, 207, and the non-party 1 signed and sealed it in the joint guarantor column of the above loan certificate. According to the above facts, it is reasonable to deem that the defendant 2 lent KRW 250,00,00 to non-party 2 and the non-party 1 jointly and severally guaranteed the above loan obligation.

In addition, on January 18, 207, at the time of entering into the above contract, Nonparty 1 owned the instant real estate equivalent to KRW 1/2 of the Cheongju-si amounting to KRW 27,500,00 in the market price of KRW 27,50,00,00, and KRW 665,155,650 in the market price. According to the Daejeon District Court Decision 2006Da1623, Hongsung Branch Court Decision 2006Da1623, the lease deposit amount of KRW 550,000 and its amount were 20% delayed damages from January 4, 207 to January 18, 207, and there is no other dispute over the above 200,520,000 KRW 550,000 in the market price of the said real estate x 305,000,000 in the date of pleading after the confession of KRW 15,207.

B. Establishment of fraudulent act

(1) According to the above facts, the non-party 1 entered into a joint and several guarantee contract with the non-party 2 for the debt amount of KRW 250,00,000,000 between the non-party 2 and the non-party 2, thereby making a total amount of 838,520,547 won (=the debt amount of the non-party 34,000,000 + the lease deposit of KRW 550,000,000 + the lease deposit of KRW 550,000,000 from January 4, 2007 to January 18, 2007 + the joint and several guarantee debt amount of KRW 250,00,000,000 + the debt amount of the non-party 250,000,000,000 won + the debt amount of KRW 692,65,655,650 won (the debt amount of the non-party 3 of this case).

Therefore, the part in excess of 104,135,103 won (250,00,000 won - 145,864,897 won) under the joint and several guarantee agreement concluded between Nonparty 1 and Defendant 2 constitutes a fraudulent act detrimental to the creditors (the amount of claim the creditor is entitled to exercise the right of revocation shall include the interest or delay damages incurred after the fraudulent act and the conclusion of the arguments in fact-finding proceedings (see Supreme Court Decisions 2000Da6416, Sept. 4, 2001; 2001Da64547, Dec. 11, 2001; 2003Da19572, Jul. 11, 2003). The above legal principle does not include the interest or delay damages incurred until the closing of arguments in fact-finding proceedings or in determining the scope of the right of revocation until the closing of arguments in fact-finding proceedings, and it does not include any damages for delay in the conclusion of arguments in fact-finding proceedings.

In addition, as long as the part exceeding KRW 104,135,103 of the above joint and several guarantee contract concluded between Nonparty 1 and Defendant 2 is fraudulent act and the intention of Nonparty 1’s will is recognized, Defendant 2’s bad faith is presumed to be the beneficiary. Accordingly, Defendant 2 alleged that Nonparty 1 was unaware of the circumstances that Nonparty 1 would harm other general creditors, including the Plaintiff, by entering into the joint and several guarantee contract as above, but it is insufficient to recognize that Defendant 2 was bona fide at the time of the above joint and several guarantee contract, and there is no other evidence to prove otherwise.

(2) If so, the part of the joint and several surety contract concluded between Nonparty 1 and Defendant 2 on January 18, 2007, which exceeds KRW 104,135,103, among the joint and several surety contract concluded between Defendant 1 and Defendant 2, is fraudulent act, and thus, it is revoked, and Defendant 2 has the duty to notify Nonparty 1 that the joint and several surety

5. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is accepted on the ground of its reason, and the remainder of the claim against the defendant 2 is accepted on the ground of its reason within the above recognition scope, and it is dismissed on the ground of its reason. Since the judgment of the court of first instance is partially unfair on the part of the defendant 2, the part of the conjunctive claim against the defendant 2 in the judgment of the court of first instance is partially accepted, and it is modified as above, the remainder of the claim against the defendant 2 in the judgment of the court of first instance is dismissed, the plaintiff's appeal is dismissed, and the defendant 1's appeal is dismissed, and the "application case for provisional seizure against immovables 208Kahap112" in paragraph (1) of the judgment of the court of first instance is obvious that it is a clerical error in the "208Kahap113

【Omission of Transaction】

Judges Lee Dong-won (Presiding Judge)