2012Na45162 Revocation of a fraudulent trust

two industries Ltd.

Real Estate Trust Co., Ltd.

1.2.2

Seoul Central District Court Decision 2010Gahap88922 Decided March 22, 2012

July 19, 2013

September 27, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant and the defendant's intervenor pay to the plaintiff the amount calculated by applying the rate of 20% per annum from September 15, 2010 to the date of the closing of argument in this case, and the amount calculated by applying the rate of 7,591, 237,724 won per annum from September 15, 2010 to the date of the completion of argument in this case, and the amount calculated by applying the rate of 20% per annum from September 15, 2010 to the date of the closing of argument in this case and the amount calculated by applying the rate of 20% per annum from September 15, 2010 to the date of the completion of this judgment.

1. Basic facts

The court's explanation on this part is as stated in the corresponding part of the judgment of the court of first instance (Article 420 of the Civil Procedure Act): Provided, That the following is added between 11, 4 and 5 lines in the walking of the court of first instance, and '35 evidence' in '35 evidence, '36 evidence No. 36-1, 36-2, 39, 40 evidence (wholly)'.

3) Around September 1, 2009, the SPP Construction borrowed KRW 5 billion from Hyundai Swiss Savings Bank, Hyundai Switzerland Savings Bank, and for the purpose of operating funds. For the security of the above loans, the Intervenor issued a second priority beneficiary certificate of KRW 6.5 billion with the instant real estate trust agreement revised on September 1, 2009 and completed the registration of the change in the trust ledger on the same day.

4) On December 3, 2009, the Intervenor amended the trust agreement with respect to the instant real estate as follows and completed the registration of change in the trust ledger on the same day. In other words, on December 3, 2009, the Intervenor issued a three-order beneficiary certificate of 26 billion won in total in order to secure obligations arising from loans from four savings banks, such as Hyundai Ssaman Bank, etc., for operating funds, etc. for investment business, and issued a three-order beneficiary certificate of 10 billion won in total in order to secure obligations arising from loans from a savings bank (the loans of KRW 8 billion were executed on December 16, 2009). The Intervenor issued a four-order beneficiary certificate of 10 billion in order to secure the 8 billion won loan from the savings bank (the loans of KRW 8 billion were executed on December 16, 2009).

2. The parties' assertion

A. The plaintiff's assertion

In accordance with the assumption of obligation agreement of this case, the Plaintiff exempted the Intervenor from the obligation to lend to Solomon Mutual Savings Bank, etc., and thus the Plaintiff’s claim for reimbursement against the Intervenor was anticipated to accrue, the Intervenor was placed in excess of the obligation by concluding the instant trust agreement with the Defendant on the instant real estate owned by the Intervenor. The said trust agreement is a private trust detrimental to the obligee, and should be revoked within the scope of the amount of the Plaintiff’s claim against the Plaintiff’s infringer, and the Defendant is obligated to pay the Plaintiff the equivalent amount of compensation and the damages for delay accordingly.

B. The defendant and the intervenor's assertion

The Plaintiff does not have a preserved claim against the Intervenor. In other words, the Plaintiff was granted a loan from Solomon Mutual Savings Bank, etc. under the name of the participant to contribute to the development of Solosolo City by lending the name of the participant to prepare for the contribution. Thus, even if the commission exempted the above lending obligation, it does not hold the Intervenor’s claim for reimbursement. Even if the name is not nominal, the scope of the Intervenor’s liability is limited to KRW 1,750,000 in the special agreement, etc. on the instant business agreement, etc., and thus, the Intervenor’s obligation for reimbursement is limited to the above scope.

In addition, since the intervenor still exceeds the positive property before and after the conclusion of the instant trust contract, it cannot be said that the instant trust contract was a fraudulent act because the intervenor did not have any excessive debt.

3. Judgment on the plaintiff's preserved claim

A. Progress of a lawsuit claiming indemnity following the plaintiff's subrogation

As seen earlier, until April 15, 2010, the Plaintiff asserted that 21,836,081,432 won of the Intervenor’s loans and interest thereon were subrogated to the mutual savings bank and that 7,591,237,724 won was claimed against the Intervenor (Seoul Central District Court 2010 Ga39425). The Plaintiff and the Intervenor asserted that 206% of the amount subrogated to the Intervenor’s total amount exceeded 106% of the amount subrogated to the Plaintiff pursuant to the instant business agreement, and that 30% of the amount subrogated to the Plaintiff’s total amount of 21,836,08,081, 207, 201, 36% of the amount subrogated to the Plaintiff’s total amount of 106, 360% of the amount subrogated to the Plaintiff’s total amount of 21,836,432 won of the Plaintiff’s total amount subrogated to the Plaintiff.

B. Determination on the establishment of the preserved claim

The evidence submitted by the defendant et al. alone does not establish any evidence to acknowledge that the plaintiff made investments in the development of the Hanna City in the name of the intervenor and received a loan of KRW 20.5 billion from Solomon Mutual Savings Bank, etc., and all of the facts acknowledged earlier, the intervenor bears at least the indemnity of KRW 1,061,813,196 and the damages for delay pursuant to the Business Convention of this case and the special agreement on the business agreement of this case. As to the specific amount, the intervenor is not required to further determine the specific amount unless it is recognized that the intervenor was in excess of the obligation at the time of the trust contract of this case as seen below. The plaintiff's claim for reimbursement can be the preserved claim of the obligee. The reasons why the court stated in this part of the argument by the defendant and the intervenor (hereinafter referred to as the "defendant, etc.") is identical with the corresponding part of the judgment of the court of first instance (Articles 138 through 17.7) and 420 of the Civil Procedure Act.

4. Whether the fraudulent act is constituted;

A. Issues of this part

If there is a shortage of joint security of claims under the instant trust contract or there is a shortage of joint security already in shortage, the instant trust contract may constitute fraudulent act. Therefore, the Intervenor’s property status at the time of conclusion of the instant trust contract shall be examined.

First of all, the defendant et al. asserted that the intervenor did not have any obligation even after the conclusion of the instant trust contract, and that the intervenor did not have any obligation even after the conclusion of the instant trust contract. In other words, the intervenor had real estate and long-term financial instruments, loans, etc. in Gwangju City as shown in the attached Table 1 before entering into the instant trust contract, as well as the real estate in addition to the instant real estate, the market price of which is equivalent to KRW 139,853,982,00,000, and the intervenor had stocks acquired by borrowing KRW 20.5 billion from Solomon Savings Bank, etc., which the intervenor continued to have a right to the instant real estate in the status of the beneficiary, and the intervenor still has to be held at the same level as the above investment amount and the amount of the secured claim in the instant trust contract after deducting the intervenor's obligation amount and the remainder of the secured claim in the order of priority as the secured claim in the instant trust contract.

On the contrary, the Plaintiff asserts that most of the Intervenor’s active assets asserted by the Defendant, etc. are not real value of the real estate, or that it is difficult to view the Intervenor’s active assets as the responsible assets that can be offered to the general creditors’ joint collateral. In other words, the Intervenor was placed in excess of his/her obligation by concluding a trust contract and completing trust registration. (i) Long-term and short-term loans and sales claims are unlikely to be recovered, and there is little substantial value of property due to lack of possibility of recovery, and in the case of financial products, 9.6 billion won is limited to deposits in a company bank, as well as short-term financial products are not subject to the right of pledge, but it is difficult to view that the short-term financial products are an insurance product, such as officers and employees’ pension insurance, etc. (ii) there is little possibility of realization, and there is little possibility of recovery in light of the general characteristics of the real estate trust agreement or the content of the trust contract of this case, and the Intervenor’s right to benefit from this case’s real estate after the conclusion of the trust contract of this case.

B. Judgment on the Intervenor’s active property

1) Relevant legal principles

In order to constitute a fraudulent act, the debtor's act of disposal of the debtor's property has to be reduced in the whole property of the debtor and the debtor's small property should be more than active property. In other words, even if the debtor's active property among his/her active property at the time of his/her disposal of the property exceeds his/her total amount of debt, the calculation of his/her active property should be excluded from the property that has no property value and cannot play a joint security for the claim, unless there are other special circumstances. If the property is a claim, it shall be included in the active property only if it is reasonably determined whether it is reliable to receive repayment (see Supreme Court Decision 2001Da32533, Oct. 12, 2001, etc.).

2) Determination

A) Real estate Gwangju City and three parcels of land: KRW 1,276,756,00 (attached Table 2 Nos. 1, 26-1, 2, 35-1, 35-3, and the purport of the entire pleadings)

(b)financial assets;

① On August 28, 2009, at the time of the conclusion of the instant trust contract, the Intervenor held a total of KRW 10,692,724,00 in the Bank’s account, installment payments, and bonds as indicated in the table below. Meanwhile, the Intervenor entered into an automatic loan agreement with the Industrial Bank of Korea as to the account No. 2.5 billion in the table below. As of August 28, 2009, the Intervenor did not have any obligation for loans as of August 28, 2009. Furthermore, the Intervenor established a neighboring pledge with the Bank’s credit ceiling amount of KRW 2.75,00,000 in the Industrial Bank of Korea’s account as set forth in the table below. As of August 28, 2009, the Intervenor did not have any obligation for the remainder under the automatic loan agreement, which is a collateral obligation of the said pledge, with the amount of the above loan amount of KRW 0,000,000,000.

A person shall be appointed.

According to the facts found above, 10,692,724,000, deposits, installment payments, and claims held by the Intervenor in the Industrial Bank of Korea are the active property of the Intervenor.

The Plaintiff asserts that the above financial product can not be seen as active property because it is difficult for the obligee to know at any time and can not be seen as active property. However, since the obligor's deposit claims against the financial institution can play a role as joint collateral for claims, the Plaintiff's above assertion is without merit. In addition, the Plaintiff asserts that the claim No. 7 of the above table, which is the collateral pledge, should be excluded from active property. However, even if the claim is established, the remainder of the claim except the amount of the secured debt of the pertinent pledge, for which the pledgee is entitled to preferential repayment, shall be provided to other creditors' joint collateral. As seen earlier, as seen in the foregoing, unless other evidence exists that the above collateral obligation was zero won at the time of the conclusion of the trust contract of this case and there was a change in the secured debt, the entire amount of the claim No. 7 of

② Insurance-related creditors entered into several insurance contracts as listed below, and paid premiums after cancelling and receiving cancellation refunds after entering into the instant trust contract. The expected refund at the time of entering into each of the instant trust contracts is as listed below (the result of inquiry into fact with respect to the K non-life insurance company, Samsung Life Insurance company, and Samsung Life Insurance Co., Ltd., and the purport of all pleadings).

A person shall be appointed.

A person shall be appointed.

Although a claim for refund money upon cancellation of an insurance contract is a conditional right which takes effect under the condition that a policyholder exercises the right to terminate the insurance contract, as it is a property right for monetary payment, which is not a property subject to the prohibition of seizure and collection under the Civil Execution Act and other Acts and subordinate statutes, and thus is subject to the seizure and collection order, and barring special circumstances, such as where the exercise of the right to terminate the insurance contract by the relevant policyholder is prohibited or restricted, the creditor who has received the collection order may exercise the right to terminate the insurance contract by his/her own name (see, e.g., Supreme Court Decisions 2004Da58963, Jan. 28, 2005; 2007Da26165, Jun. 23

There is no special document regarding the fact that the exercise of the Intervenor's right to terminate the insurance contract was prohibited or restricted under the above insurance contract. The insurer seems to be a large insurance company in the market, and the repayment of the cancellation refund money 2,106,712,019 won is a clear letter, and the above cancellation refund money 2,106,712,019 won is a property possible for compulsory execution by its creditors, and thus it can be recognized as an active property corresponding to the obligees' joint security. The plaintiff asserts that the intervenor subscribed to the above insurance for the purpose of paying the pension to its officers and employees, and there are other small assets such as the Intervenor's annuity payment obligations equivalent to the above amount of delayed insurance, etc., and therefore it cannot be acknowledged as an active property. However, according to the above evidence, other insurance contracts except the above table 6 new business insurance cannot be acknowledged as a savings insurance that all the insured are savings insurance contracts with which the intervenor N. Thus, the above insurance contracts have the nature of the savings. Therefore, the plaintiff's assertion is without merit.

C) In calculating the active property of a debtor of shares in the Korea-China Urban Development, it shall be excluded from the debtor’s active property on the ground that the debtor’s active property has no other special circumstances, and thus, the joint collateral security of the claim cannot be played due to the lack of real property (see, e.g., Supreme Court Decision 2010Da85102, Oct. 11, 2012).

The Intervenor acquired the shares of Korea-U.S. Urban Development by investing in the development of Korea-U.S. Urban Development among the total amount of KRW 18,413,740,000 among the total amount of KRW 20.5 billion loaned by a mutual savings bank on October 31, 2008. The development of Korea-U.S. Urban Development passed a resolution of equal reduction (72.04% reduction) at the third temporary general shareholders' meeting on December 15, 2009. The Plaintiff received a refund of KRW 13,264,85,00 (72.04%) from the development of Korea-U.S. Urban Development on July 23, 2010, pursuant to a special agreement on the business agreement of this case.

At the time of the audit of the Intervenor in 2009, an auditor assessed the book value of the said shares at KRW 16,803,745,00. The Korea-U.S. Urban Development was 153,780,000,000 capital around September 30, 2009, using KRW 9,677,68,600,000, which was 144,102,311,399, which was 17,254,925,838 (14,102,311,399, 153,70,700, 1530,700,000, which was close to the trust contract date of this case. On the other hand, the amount of the Intervenor’s remaining capital at the time was 17,254,925,838,000,0000,000,0000,000.

Considering the above facts and all the circumstances revealed in the argument in this case, it is reasonable to view that the value of the shares of the Korea-U.S. Urban Development at the time of the conclusion of the instant trust contract was at least KRW 15,763,889,852 (i.e., KRW 13,264,885,000 + Liquidation amount of KRW 2,49,04,852). As such, it is reasonable to view that the shares of the Korea-U.S. Urban Development was at least property value of the shares of the Korea-U.S. Urban Development before the conclusion of the instant trust contract, and the Plaintiff received the refund due to capital reduction after the conclusion of the trust contract. Considering the fact that the shares of the Korea-U.S. Urban Development at the time of the instant trust contract were referring to the development of the Korea-U.S. Urban Development at least two years and six months after the conclusion of the trust contract, it is reasonable to regard the Intervenor’s active property.

D) Other cash assets, sales bonds, short-term loans, etc.

In the case of short-term loans and sales claims asserted by the Defendant, etc. - In the case of the Intervenor’s short-term loans and sales claims, it seems that there is little real value of assets due to the possibility of recovery to the extent that it is calculated as investment assets, or the possibility of appropriation for bad debts is insufficient. Therefore, it is difficult to recognize it as active property. In the case of cash and cash assets, it is difficult to view it as joint collateral for creditors because the specific existence of such assets and the form, value,

In addition, it is clear that the claim for the deposit against the club effort Co., Ltd. is not feasible, and since the above company is deemed to have little possibility of recovery in light of the above company's status, asset status, etc., such as closing its business around March 31, 2011, it cannot be recognized as active property.

E) Rights to benefit under the instant trust agreement

The Defendant, etc. asserts that the right to benefit acquired by the Intervenor pursuant to the instant trust agreement is worth KRW 43.2 billion after deducting the secured debt amount of the right to collateral security from KRW 16.5 billion at the time of the instant real estate from KRW 139.8 billion at the market price of the instant real estate and the loan obligations establishing the preferential right to benefit, and thus, should be assessed as the Intervenor’s active property pursuant to Article 241 of the Civil Execution Act.

In regard to this, as it is difficult for the Plaintiff to specify whether the trust contract is feasible and the amount and time of realization until the settlement is completed due to the nature of the trust contract for real estate collateral security, the Plaintiff cannot recognize the remainder after deducting the principal of the loan of the priority beneficiary and the secured debt of the right to collateral security from the value of the above real estate as the value of the right to benefit. In addition, as of the time of conclusion of the trust contract, the instant trust contract can not be recognized as a responsible property, since almost all disposal rights of the priority beneficiary have been transferred to the beneficiary, from the perspective of the general creditors of the Intervenor, and there is no possibility for the Intervenor to block the flag in which the right of priority is added from the perspective of the ordinary creditors of the Intervenor, or to exercise their right before it is possible

In the case of so-called self-profit trust in which a truster becomes a beneficiary under a trust agreement, the trust property is excluded from the truster's responsible property, on the other hand, the truster acquires the right to benefit under a trust agreement. However, there is room to deem that the truster's creditor is able to enforce compulsory execution in accordance with the procedure of special cashation under Article 241 of the Civil Execution Act, etc. Therefore, if the truster's right to benefit has substantial property value, the truster's right to benefit can be assessed as the obligor's active property in the lawsuit

According to the instant trust agreement, the Intervenor has the status of beneficiary entitled to receive a return of the remainder of the loan obligation to the first priority beneficiary and the trust expense, and there exists a possibility of satisfaction with the claim through such right to benefit. Even if the Intervenor’s method of blocking the addition of the right to benefit in the future or exercising the right before it is unclear from the perspective of the ordinary creditors of the Intervenor, where the Intervenor’s right to benefit in the future is established as a result of the conclusion of an amendment agreement to the trust agreement, and the Intervenor’s right to benefit in the future has decreased in the value of the Intervenor’s substantial right to benefit in the future, and there is a way to preserve the general obligee’s rights by seeking revocation of the additional amendment agreement itself as a fraudulent act. As such, it is difficult to view that the Intervenor’s right to benefit in the first and second priority property was not completely separated from the Intervenor’s responsible property. Moreover, even if the Intervenor’s right to benefit in the first and second priority trust agreement was not established, it still appears that the amount would have been 340 million won or more at the time of the instant trust agreement was concluded.

1) If the purport of the entire pleadings is added to the evidence No. 7-4, No. 18, Eul evidence No. 25, Eul evidence No. 28-2, Eul evidence No. 31-6 of the lease deposit return obligation, the intervenor is recognized as having borne the obligation to pay the lease deposit amount of KRW 5,137,795,50 as listed below, except where the collateral security was established on the pertinent real estate or the right to preferential payment was secured as the object of protection under the Commercial Building Lease Protection Act after the conclusion of the instant trust contract.

A person shall be appointed.

The Plaintiff asserted that the Intervenor bears the burden of returning the lease deposit amount of KRW 21,90,474,750, including the obligation to return the lease deposit of KRW 5,137,795,50. However, according to the aforementioned evidence, the Plaintiff’s obligation to return the lease deposit of KRW 16,852,679,250, other than the obligation to return the lease deposit of KRW 5,137,79,50 (= KRW 21,990,474,750 - KRW 5,137,795,50), - the obligation to return the lease deposit of KRW 5,50,00,000, including the obligation to return the lease deposit of KRW 5,137,79,795,500, under the Commercial Building Lease Protection Act, can be recognized that the registration of the establishment of the lease deposit was completed with respect to the building of this case, or that the Intervenor succeeded to or succeeded to the property of this case (negative).

(2) Obligations for loans to Solomon Mutual Savings Banks, etc.

According to the above evidence, the intervenor has borne the obligation to pay 20.5 billion won to Solomon Mutual Savings Banks.

3) Separate loans, etc. asserted by the Plaintiff

The plaintiff asserts that the intervenor bears the obligation of KRW 62,210,616,880 as of the end of 2009, and that the obligation of the mutual savings bank loans amounting to KRW 20.5 billion, excluding KRW 21,990,474,750, as well as KRW 19,720,142,130, as well as KRW 20.5 billion, should be included in small property.

However, according to the above evidence, most of the obligations of the 19,720,142,130 won asserted by the Plaintiff are established for the above savings banks upon amending the trust contract in this case for the sake of the obligation jointly and severally guaranteed by the intervenor's obligation for the loans to the Hyundai S&S Mutual Savings Bank, etc., as seen in the above basic facts. The above joint and several liability and the loan obligation are mostly incurred after the conclusion of the trust contract in this case. The above joint and several liability and the loan obligation are mostly incurred after the execution of the trust contract in this case. As seen earlier, as seen in the above, the Defendant has first repaid the claims of the 1,2 first priority beneficiary from the proceeds from the sale of the real estate in this case, and the remaining 3,400 won are currently deposited. As long as the value of beneficial interest in the participation is excluded from active property as seen in this case, the above loan obligation must be excluded from the intervenor's small property.

In addition, the Plaintiff asserts that the Intervenor was liable for R and S at the time of the conclusion of the instant trust contract, but the evidence submitted by the Plaintiff alone cannot be acknowledged, and no other evidence exists to acknowledge it.

(d) Whether the intervenor's debts are in excess;

Ultimately, after the conclusion of the instant trust contract as shown in attached Table 2, the Intervenor’s active property is KRW 29,840,081,871,871, and the passive property can be assessed as totaling KRW 25,637,795,50, and it is difficult to find that the Intervenor was in excess of the obligation at the time, and there is no other evidence to acknowledge it otherwise.

Therefore, the plaintiff's claim against the defendant on the premise that the trust contract of this case is a fraudulent act is without merit.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Mobilization by the presiding judge

Judges

Judges Kim Jong-chul

1) After the decision to reduce the capital of the Korea-U.S. Urban Development, the Intervenor’s refund was paid, as seen below, and the amount of the refund was paid.

The Plaintiff received.

2) The Defendant did not have any data relating to the expected refund of the insurance policy No. 1, and the amount of the insurance-related claims is calculated as KRW 400 million.

No. 2,071,685,859 won was assessed and claimed in accordance with the results of the fact-finding on Samsung Bio-resources of the first instance.

The estimated refund amount shall be recognized as KRW 435,026,160.

3) Other insurance Co., Ltd. (securities number M, 3 million won per month) of which the Intervenor subscribed on December 22, 2011 to LIG insurance.

3. Although there are details of refund in KRW 151,935,555 upon cancellation on November 11, 200, a refund expected at the time of conclusion of the instant trust contract.

The conclusion of the instant case is not affected because there is no data on the amount, and the expected amount is relatively small.

As such, it does not include active property.

4) On July 18, 2013, Plaintiff also responded to the stock value of the Korea-U.S. Urban Development, owned by Intervenor, in the preparatory documents dated July 18, 2013

The Intervenor’s total capital after deducting the total amount of corporation expenses from the total capital of the Company at the time of conclusion of the instant trust contract

may be assessed on the basis of the amount calculated in proportion to the number of shares, if any,

There was a claim that the amount would be approximately KRW 17.2 billion.

5) Damage loss means the value higher than the acquisition cost or assessed value of the invested asset counted in the financial statement.

(1) If it is deemed that there is no significant possibility of recovery due to a low decline, the investment assets in question shall be disposed of by reduction.

means any loss incurred in life.