[1] In a case where a right to collateral security has been established for a certain creditor's only real estate among several creditors, whether the scope of fraudulent act varies depending on the place of use of the money borrowed from the creditor (negative)

[2] In the event that the establishment registration of a new mortgage made due to a fraudulent act continues to exist until the closing of argument in the lawsuit seeking revocation of the fraudulent act, whether the separate collateral security established prior to the fraudulent act affects the restoration of the original state (negative)

[1] The act of setting up a mortgage on the only real estate held by a certain creditor among several creditors constitutes a fraudulent act, and the scope of a fraudulent act does not vary depending on the place of use of the money borrowed from the specific creditor.

[2] If the establishment registration of a new mortgage made due to a fraudulent act continues to exist until the closing of argument in the lawsuit for revocation of the fraudulent act, the restoration to its original state shall be made by the method of cancelling the establishment registration of a new mortgage, and the circumstances that a separate mortgage established prior to the fraudulent act was cancelled after the fraudulent act shall not affect the method of reinstatement.

[1] Article 406 of the Civil Code / [2] Article 406 of the Civil Code

(Attorney Choi Byung-hoon, Counsel for the defendant-appellant)

Defendant (Attorney Cho Jae-soo, Counsel for the defendant-appellant)

Busan High Court Decision 2006Na20092 Decided June 20, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Unless there are other special circumstances, the act of establishing a mortgage on the only real estate held by the debtor among several creditors constitutes a fraudulent act, and the scope of the fraudulent act does not vary depending on the use of the money borrowed from the specific creditor. Meanwhile, in the event that the establishment registration of a mortgage on the real estate held by a fraudulent act continues until the closing of argument in the lawsuit for revocation of the fraudulent act, the restoration should be made by the method of cancelling the establishment registration of a mortgage, and the circumstance that the separate mortgage established prior to the fraudulent act was cancelled after the fraudulent act does not affect the method of restitution.

Comprehensively taking account of the admitted evidence, the court below rejected the defendant's assertion that the non-party 1 was not 60 million won for the first time on March 28, 2005 and that the non-party 1 was 60 million won for the first time on April 15, 2005, and the non-party 1's subrogation amount of 18,232,200 won for the second time on April 8, 2005 and the non-party 1 was 60 won for the first time on April 15, 2005 to lease the above subrogation amount to the non-party 1 for the first time on the non-party 5's claim that the non-party 1 was 60 won for the first time on April 205, the court below rejected the non-party 1's claim that the non-party 1 was 90 billion won for the first time on the real estate stated in the separate list of the judgment below (hereinafter "non-party 1's apartment mortgage contract").

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)