Changwon District Court-2014-Ba-76024 ( October 21, 2015)

Since the fact of the instant transaction was reported to the competent tax office at that time, whether the Plaintiff was aware that the instant sales contract constituted a fraudulent act at that time.

It is presumed that the non-party delinquent debtor, who was in excess of debt, entered into a sales contract on the real estate of this case, which is the only real estate between the defendant and his own partner, constitutes a fraudulent act that causes the lack of joint security of other creditors, including the plaintiff, and constitutes a creditor's fraudulent act that causes damage to the plaintiff, and the defendant's bad faith is presumed to be a

Supreme Court Decision 2013Da5855 Decided April 26, 2013

2015Na30958 Revocation of Fraudulent Act

Korea

IsaA

Changwon District Court Decision 2014Da76024 Decided January 21, 2015

July 14, 2015

August 11, 2015

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The sales contract concluded between the Defendant and the BB on July 10, 2012 with respect to the PCC 168-9 (OOOM) in Tong-si. The Defendant will implement the registration procedure for ownership transfer on the ground of restitution due to the revocation of fraudulent act with respect to the above real estate.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: “No. 5, 201” in Section 4, Section 13 of the judgment of the court of first instance shall be read as “No. 25, 2012.”; “No. 12, 2012.” in Section 5, as “No. 10, 2012.”; and “No. 10, 2012. 10” in Section 5, as “No. 10, 2012. 10,” and the Defendant’s argument at the trial is identical to the part of the judgment of the court of first instance, except for adding the judgment under Section 2 below.

2. Additional determination

A. The defendant's assertion

At the time of the Defendant’s purchase of the instant real estate from the Plaintiff, the establishment registration of a neighboring mortgage consisting of the debtor BB, creditor DD, maximum debt amount of KRW 25 million, and the establishment registration of a neighboring mortgage consisting of the debtor’s accommodation, creditor Tong Young-gu, maximum debt amount of KRW 20 million, respectively, was completed, and the Defendant purchased the instant real estate from BB, and thereafter, DD to DD.

BB duly paid 62,50,000 won (=250,000 + 14,500,000 + 23,500,000) out of the purchase price of the instant real estate, as the secured debt (i.e., KRW 7,50,000 + KRW 2,50,000 + KRW 23,50,000) was fully repaid, and the ownership of the instant real estate was revoked as a fraudulent act. Therefore, even if the sale of the instant real estate was revoked as a fraudulent act, the method of restitution should be based on the value compensation. The scope of compensatory damages should be limited to the remaining KRW 7,50,000,000 (=7,000,000-66,250,000) out of the purchase price of the instant real estate paid by the Plaintiff as a legitimate purchase price.

B. Relevant legal principles

1) Restoration following the revocation of a fraudulent act shall be based on the return of the object itself, and liability for value shall be exceptionally made only when it is impossible or considerably difficult (see, e.g., Supreme Court Decision 97Da58316, May 15, 1998). Meanwhile, in a case where a mortgage is extinguished due to the cancellation of the registration of creation of a mortgage after the object was transferred to a third party other than the mortgagee by means of fraudulent act, only the value of compensation is recognized (see, e.g., Supreme Court Decision 2002Da41589, Nov. 8, 2002). In order to be subject to the above legal doctrine, the following three requirements should be met, such as ① a mortgage on the relevant real estate, ② a right to the real estate by fraudulent act under the condition where the mortgage is established, ③ a mortgage should be extinguished thereafter, and ③ a mortgage should be extinguished in the order of time.

C. Determination

1) First, as to whether the ownership of the instant real estate was extinguished under the name of DD after the transfer to the Defendant, there is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it. Rather, according to the evidence evidence No. 3, the application for cancellation of the registration of the establishment of the instant real estate was received as No. 1844 on July 11, 2012 on the ground of the termination of the above contract on the establishment of a mortgage on July 10, 2012, and the fact that the application for the registration of the establishment of a mortgage was received as No. 1845 on July 10, 2012 on the ground that the application for the registration of the establishment of a mortgage on the ground of the sale contract was not possible or difficult to acknowledge that the Defendant paid part of the amount of the instant real estate to DD, which was established before and after the cancellation of the above establishment of a mortgage, as well as that there was no evidence to acknowledge that DB and the Defendant’s total amount of the instant real estate was not available from the date.

3) Therefore, this part of the Defendant’s assertion that the compensation should be restored to its original state is without merit. 3. Conclusion is without merit.

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