In a case where the establishment registration of a mortgage is cancelled after a mortgage was transferred to a fraudulent act, the scope of revocation of a fraudulent act, the method of restitution, and whether the legal relationship of a third party other than the party is affected by the revocation of a fraudulent act (negative in principle) / Whether such legal principle applies likewise to a case where the establishment of a mortgage, etc. was revoked as a fraudulent act (affirmative

In a case where a real estate on which a mortgage is established is transferred by a fraudulent act, the fraudulent act shall be established only within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate. Thus, if the registration of creation of a mortgage was cancelled by repayment, etc. after a fraudulent act, the fraudulent act may be cancelled and claimed for compensation for the value of the real estate within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate. Meanwhile, the revocation of a fraudulent act is relatively effective between the parties to the lawsuit seeking revocation, barring any special circumstances, and any third party other than the parties shall not be affected by the legal relationship of revocation. Even if the judgment accepting the creditor's claim in a lawsuit seeking revocation of a fraudulent act instituted against the mortgagee by the creditor as the act of creation of mortgage, etc. constitutes a fraudulent act, the judgment revoking such fraudulent act is effective against the person to whom the ownership of the real estate in question was transferred, and thus, the aforementioned legal principle applies likewise to a case where the right of creation, etc. was revoked as

Article 406(1) of the Civil Act

Supreme Court Decision 97Da6711 Decided February 13, 1998 Supreme Court Decision 2008Da7109 Decided June 11, 2009 (Gong2009Ha, 1105) Supreme Court Decision 2015Da235353 Decided January 14, 2016

I/SB Savings Bank, E.S. 2 Savings Bank, S. SBA 3 Savings Bank, and SBA 4 Savings Bank, a lawsuit taking over the lawsuit of SBA 4 Savings Bank (Law Firm Sbap, Attorneys Song-yeong et al., Counsel for the plaintiff-appellant-appellee)

Defendant

The Intervenor joining the Defendant (Attorney Hwang Young-il et al., Counsel for the defendant and the Intervenor joining the Defendant)

Seoul High Court Decision 2016Na2024626 decided January 26, 2018

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below determined, on the grounds as stated in its reasoning, that each of the joint and several liability obligations of the Intervenor’s Intervenor (hereinafter “ Intervenor”) against SBI Korea Holdings Holdings Co., Ltd., and the obligations of the Korea Commercial Policy Insurance Co., Ltd. (hereinafter “Korea Commercial Policy Insurance”) and the Personal Savings Bank (hereinafter “Personal Savings Bank”), the respective loans owed by Nonparty 1 and Nonparty 2, the respective loans owed by the Intervenor to Nonparty 1 and Nonparty 2, and the obligations of the loans owed by the Deditable Investment Co., Ltd. against the Defendant constituted the obligation to form and maintain the common property with the Defendant, or the obligation that the Defendant allowed.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the small property subject to division, as otherwise alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.

2. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the judgment below, the court below determined that since the total amount of the negative property subject to division of property between the defendant and the intervenor exceeds the total amount of the positive property, and the active property under the name of the defendant is more than the negative property, since the agreement on division of property in this case should be made to determine the scope and method of the defendant's sharing among the intervenor's debts, the agreement on division of property in this case should be made by allowing the defendant to additionally acquire the real property under the intervenor's name, but rather, it is difficult to see that the defendant has contributed to the formation and maintenance of the intervenor's common property, ② it is difficult to see that the defendant has contributed to the formation and maintenance of the intervenor's common property. ③ At the time of the agreement on division of property in this case, since the defendant and the intervenor's children have already been adults, it cannot be deemed that the defendant agreed to pay the duty to support the intervenor's ordinary marital relationship for about 33 years, and as long as it is difficult to find other reasons for the defendant's economic difficulties due to the intervenor's detention.

Examining the relevant legal principles and records, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on reasonableness of division of property or burden of proof,

3. As to the fourth ground for appeal

A. In a case where a real estate on which a mortgage is established is transferred by a fraudulent act, the fraudulent act shall be deemed to be established only within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, if the registration of creation of a mortgage was cancelled by payment after a fraudulent act, etc., the fraudulent act may be cancelled within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate (see, e.g., Supreme Court Decisions 97Da6711, Feb. 13, 1998; 2015Da235353, Jan. 14, 2016). Meanwhile, the revocation of a fraudulent act is relatively effective between the parties to the revocation lawsuit, and a third party, other than the parties, is not affected by the revocation thereof (see, e.g., Supreme Court Decision 2008Da7109, Jun. 11, 2009).

B. The reasoning of the lower judgment reveals the following facts.

(1) On April 29, 2013, the registration of ownership transfer was completed on the ground of the Intervenor’s attribution of trust property in the future. On the same day, the registration of ownership transfer was completed on the part of the Intervenor’s Hansung Savings Bank in order to secure the Intervenor’s obligations for loans of KRW 2,800,000,000 for Hansung Savings Bank. On the other hand, the registration of ownership transfer was completed on the part of the Intervenor’s Sung Savings Bank in order to secure the Intervenor’s obligations for loans of KRW 800,000,000.

(2) On April 10, 2013, the Intervenor borrowed KRW 400,00,000 from Nonparty 3, and KRW 100,00,000 from Nonparty 4, Nonparty 5, and Nonparty 6, respectively, on May 7, 2013, and completed the registration of creation of a neighboring mortgage on the instant real estate on May 7, 2013 in order to secure the above loan obligation.

(3) On December 6, 2013, an intervenor entered into a division of property agreement with the Defendant on the registration procedure for transfer of ownership based on the division of property regarding the instant real property. On February 5, 2014, the intervenor completed the registration of transfer of property in the Defendant’s future on the grounds of the above division of property.

(4) Subsequent to March 24, 2014, the Defendant entered into the instant sales contract whereby Nonparty 7 and the instant real estate were sold in KRW 5,700,000,000, and completed the registration of ownership transfer on April 21, 2014.

(5) However, during the process of implementing the instant sales contract, the registration of the establishment of a neighboring mortgage in the names of Nonparty 4, Nonparty 5, and Nonparty 6 was revoked on April 14, 2014. The registration of the establishment of a neighboring mortgage in the names of Nonparty 3 was revoked on April 22, 2014.

(6) Meanwhile, on April 10, 2013, the Plaintiff filed a lawsuit seeking revocation of a mortgage agreement concluded between Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 on the instant real estate and between Nonparty 3 and the Intervenor on April 10, 2013. On May 7, 2013, the Plaintiff filed a lawsuit seeking revocation of a mortgage agreement concluded on the instant real estate and between Nonparty 4, Nonparty 5, and Nonparty 6 and the Intervenor. On March 22, 2016, the judgment of the first instance that accepted the Plaintiff’s claim was rendered and finalized.

C. Examining these facts in light of the legal principles as seen earlier, even if the Plaintiff was sentenced to the judgment of acceptance of the claim in the lawsuit seeking revocation of the fraudulent act filed against Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6, the above property division agreement may be revoked and claimed only within the extent of the balance calculated by deducting the secured debt amount of the right to collateral security in the name of Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 from the value of the instant real estate as long as the Defendant acquired the ownership of the instant real estate due to the property division agreement after the establishment registration was completed.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined otherwise by misapprehending the legal doctrine on the scope of establishment of fraudulent act or the scope of return of value in a creditor’s revocation suit, thereby adversely affecting the conclusion of the judgment, the lower court erred by misapprehending the legal doctrine on the scope of return of value, etc., and thereby adversely affecting the conclusion of the judgment, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)