(영문) 대법원 2016.10.27.선고 2014다87120 판결

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court. The plaintiff and the defendant's successor to the proceedings are dismissed in entirety.

Expenses incurred in applying for a takeover of proceedings shall be borne by the plaintiff and the defendant, respectively.

Reasons

The grounds of appeal are examined.

1. Fraudulent act subject to creditor's right of revocation is a debtor's property legal act that causes reduction of the debtor's whole property in principle, and thus, even if the debtor's property legal act is the debtor's property, it cannot be deemed a fraudulent act if it does not cause reduction of the debtor's whole property (see Supreme Court Decision 2014Da22725, Jan. 28, 2016).

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

① On October 9, 2009, the Defendant entered into a bond acquisition contract (hereinafter “instant bond acquisition contract”) with C Co., Ltd. (hereinafter “C”) to acquire KRW 2 billion of the 7th bonds with warrants issued by C (hereinafter “instant bonds”). In this case, C entered into a contract for transfer of security (hereinafter “instant contract”) with the Defendant to secure all obligations, including the principal and interest of the instant bonds, interest thereon, delay damages, and other damages incurred in connection with the instant contract, including trademark right and service mark right as indicated in the attached list of the lower judgment, and the service mark right, G Co., Ltd. (hereinafter “G”) and the service mark right and service mark right (hereinafter “H”), owned by C Co., Ltd. (hereinafter “instant trademark right and service mark right, etc.”) as collateral for transfer, in order to secure all obligations arising in connection with the instant contract, including trademark right and service mark right.

② In the instant contract to establish a security for transfer of a trademark, when the grounds for loss of the benefit of time under the contract to acquire a patent of this case arise, the Defendant may commence the procedure for satisfaction and settlement of payment by the security right, etc. (Article 2(2)(b) and the valuation of trademark rights, etc. shall be based on the appraisal by a reliable assessment agency designated by the Defendant, and C shall not raise any objection to the result of such appraisal (Article 2(3)(c)). At the discretion of the Defendant, the brand, patent right to be appropriated for the repayment of the principal and interest of the instant bonds that the Defendant has not repaid, and the patent right may be arbitrarily selected from the security right, etc.

(Article 2(3)(d) provides that "Article 2(3)(d) shall apply."

③ On October 9, 2009, C completed the registration of transfer of rights to each trademark right and service mark right listed in the separate sheet of the lower judgment according to the instant contract for transfer of security, and the Defendant paid KRW 2 billion to C on October 12, 2009 in accordance with the instant contract for acquisition of the bonds.

④ On January 25, 2010, the Defendant sent to C a notice of loss of profit under DW by content-certified mail, and notified C that C would exercise the right to collateral security for the said trademark transferred to the security for transfer, if the said right is not returned, on the ground that additional provisional seizure other than the matters known at the time of the acquisition of the instant bonds has lost the benefit of time due to the occurrence of the instant bonds to C, etc., and C would have lost the benefit of time.

⑤ On February 11, 2010, the Defendant notified C and G and H that the principal and interest of the instant bonds had not been repaid until February 2, 2010, which was due to the loss of interest by time limit, were not repaid until February 2, 2010, and that it would not be returned if the principal and interest of the instant bonds were not returned. As such, on March 2, 2010 and March 5, 2010, the Defendant sent C and G and H the notice of change and settlement related to the execution of the right to collateral security to collateral security to C and H by content-proof mail, and the Defendant sent C and H the principal and interest of the instant bonds to the effect that the principal and interest of the instant bonds were not repaid until February 2, 2010 (hereinafter referred to as the “LL trademark right”), G trademark right, HH trademark right owned by the Defendant (hereinafter referred to as the “trademark trademark right of the instant case”), 700 billion won, 709 billion won, 709 billion won, 70989, 709.

④ On May 20, 2010, C filed an objection on the Defendant’s notification of the execution of the above transfer security right on the ground that the value of the instant trademark right was 6,971,331,000 won (L trademark 4,842,966,000 + G trademark 1,618,408,000 + H trademark 509,957,000 won) as a result of the appraisal by the accounting firm of the lender on the instant trademark right.

7) Accordingly, on July 20, 2010, M and the Defendant, the largest shareholder of C, G, H and H, and the representative director of G and H, concluded a settlement agreement stating that “The value of the trademark right of this case under the settlement procedure according to the instant contract for the transfer of security shall be calculated additionally according to the valuation of the accounting firm, which shall be conducted. The parties, including C and the Defendant, shall not raise any objection thereto. As a result of the valuation of the accounting firm on July 2, 2010, if the appraised value of the instant trademark right does not exceed the amount of the Defendant’s secured claim under the instant contract for the transfer of security right, the liquidation procedure is completed. If the amount exceeds the amount of the Defendant’s secured claim under the instant contract for the transfer of security right, the Defendant shall pay the liquidation amount to the company generating the relevant liquidation amount, and the Defendant shall pay 300 million won to C under the pretext of the agreement.”

8. On July 23, 2010, an accounting firm established the settlement agreement of this case submitted an appraisal report on the trademark rights of this case. The value of the trademark rights of this case was totaled 2,432,053,00 won (L 1,526,402,00 + H 471,546,00 won) + The appraisal value of the trademark rights of this case was calculated based on the settlement of accounts based on the settlement of accounts based on the following facts: (1) The Defendant, on the same day, paid KRW 208,115,351 to H, and KRW 1965,046 to the Defendant for the settlement of accounts; (2) The appraisal of the value of the trademark rights of this case was no longer than the appraisal value of the real estate of this case, and (3) the appraisal of the real estate of this case was no more than the appraisal value of the real estate of this case, and thus, it was difficult to view the Defendant’s appraisal of the value of the trademark rights of this case as follows.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined otherwise by: (a) C, a stateless excess of the settlement agreement of this case, has waived its claim for the settlement money equivalent to its own share among the settlement money through adequate evaluation with the Defendant; and (b) determined that C, as the settlement agreement of this case was revoked as a fraudulent act, has the claim for the settlement money which was reasonably assessed against the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on fraudulent act, thereby adversely affecting

4. We examine the plaintiff and the defendant's application for taking over the proceedings.

According to the records, on March 4, 2015, when the appellate brief was not timely filed, it may be known that there was a decision to commence rehabilitation procedures against the defendant on March 4, 2015. However, when the proceedings of the court of final appeal are declared without holding any pleadings at the same stage, it is not necessary to have the defendant take over the proceedings (see Supreme Court Decision 2012Da89320, Feb. 26, 2015). Accordingly, the Plaintiff and the applicant for taking over the proceedings of the defendant are all unacceptable.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All of the applications for taking over the proceedings by the plaintiff and the defendant, are dismissed, and the costs incurred by the request for taking over the proceedings by the plaintiff and the defendant shall be borne by each of the applicants for taking over the proceedings