Whether the registration of the establishment of a right to collateral security made with a debtor in excess of his/her obligation constitutes a fraudulent act

Unless there are special circumstances, the act of a delinquent debtor in excess of his/her obligation to provide real estate owned by him/her to any one of the creditors as collateral for claims constitutes a fraudulent act in relation to other creditors.

Article 406 of the Civil Act

2015 Gohap3089

Korea

1. AA;

2. BB

October 22, 2015

November 26, 2015

1. The contract to establish a collateral security concluded on June 11, 2012 between Defendant AA and CCCweb, with respect to real estate listed in the separate sheet, shall be revoked.

2. Of the distribution schedule prepared by the said court on February 11, 2015, the amount of 500 million won (five hundred and twenty billion won (five in the distribution order) against Defendant AA out of the distribution schedule prepared by the said court in relation to the case of an application for auction of real estate rent in Daegu District Court, Daegu District Court, Daegu District Court (Seoul District Court), shall be deleted, and the amount of dividends against the Plaintiff shall be corrected to KRW 724,785,219 to KRW 724,785,219.

3. The plaintiff's remaining claims against the defendant AA and the defendant BB are all dismissed.

4. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and the Defendant AA, the remainder shall be borne by the Plaintiff, and the remainder shall be borne by the Plaintiff and the Defendant BB.

Cheong-gu Office

Of the distribution schedule prepared on February 11, 2015, the amount of KRW 1 billion against Defendant AA (the amount of KRW 4.5 billion in dividend order and KRW 500 million in dividend order) and KRW 254,100,479 in dividend amount against Defendant BB among the distribution schedule prepared by the said court in relation to the case of an application for auction of real estate rent (the amount of KRW 224,785,219 in dividend amount against the Plaintiff) in Daegu District Court, Daegu District Court, Daegu District Court 2014,000 in total, and the amount of KRW 1,478,85,85,698 in dividend amount against the Plaintiff shall be corrected to KRW 1,478,698 in total.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of Gap evidence Nos. 1, 2, 5, 7, 8, 17, 18, and Gap evidence Nos. 6-1, 3, and 5:

A. The Plaintiff’s establishment of a taxation claim against the CCCweves Co., Ltd.

1) The CCCwa Holdings Co., Ltd. (hereinafter “CCS”) is a company that operates the wedding service business from September 1, 2002 to September 1, 2002 in the real estate listed in the separate sheet (hereinafter “instant real estate”).

2) However, from 2007 to 2011, the CCC Holdings omitted part of its sales, etc. In filing a return of corporate tax, value-added tax, dividend income tax, and labor income tax. Accordingly, the head of a permanent resident tax office affiliated with the Plaintiff confirmed the above under-reported return and notified CCCwa to pay the amount of KRW 4,228,06,940, including corporate tax and value-added tax, and on February 6, 2015, the amount of delinquent taxes in CCCwa as of February 6, 2015, including increased tax, are KRW 5,154,01,360, including the following [Attachment].

(b) Registration of creation of a mortgage and transfer of a mortgage by Defendant AA;

1) On June 11, 2012, Canada entered into a mortgage agreement with Defendant AA and the instant real estate with the maximum debt amount of KRW 500 million, a debtor CCCS and a mortgagee, a mortgage agreement with Defendant AA (hereinafter referred to as “the first mortgage agreement”). On July 3, 2012, Defendant AA entered into a mortgage creation agreement based on the first mortgage agreement (hereinafter referred to as “the creation registration of a mortgage”) and completed the creation registration of a mortgage on July 3, 2012.

2) Meanwhile, on June 11, 2012, the registration of creation of a neighboring mortgage was completed on the instant real estate as the maximum debt amount of 4.68 billion won, the debtor, the debtor, and the Daegu Bank Co., Ltd. (hereinafter referred to as the "Tgu Bank"), and on November 27, 2013, Defendant AA had completed the additional registration of partial transfer of the said right to collateral security (hereinafter referred to as the "registration of the instant right to collateral security") on the ground of the partial subrogation for the established claim on November 26, 2013.

C. Registration of establishment of a mortgage near Defendant BB

On November 21, 2012, Canada entered into a mortgage agreement with Defendant BB on November 21, 2012, 38-44, 39-18, 526 square meters, 40-2, 276 square meters, which is the maximum debt amount, KRW 500 million, cCCwawa, and Defendant BB on November 21, 201. On November 21, 2012, Defendant BB completed a mortgage creation agreement (hereinafter referred to as the “mortgage creation agreement”), which is based on the instant collateral creation agreement, on November 21, 2012.

(d) Preparation of a schedule of voluntary auction and distribution;

1) On the date of distribution of the auction procedure for real estate auction ( February 11, 2015,), Daegu District Court, Daegu District Court, Daegu District Court, 2014 another and 000,000, which made the instant real estate as sold real estate, the sum of KRW 1 billion to Defendant A (500 million + KRW 500,000,000,000,000,000,000 to Defendant B, based on the registration of the creation of the first collateral collateral security in this case + KRW 500,000,000,000,000,000 to Defendant B, which is KRW 22,785,219 (the distribution schedule in this case as a delivery authority) (hereinafter referred to as “instant distribution schedule”).

2) The Plaintiff raised an objection against the Defendants as to the total amount of dividends on the aforementioned date of distribution.

2. Determination as to the Plaintiff’s claim against Defendant AA

A. The plaintiff's assertion

1) The CCC Holdings concluded the instant No. 1 collateral security agreement on the instant real estate, the sole property of CCCwa in spite of the absence of any obligation against Defendant AA with respect to the purpose of evading the compulsory execution of the creditors, including the Plaintiff, with the aim of evading the excess of the debt, and thus, the instant No. 1 collateral security agreement should be revoked as a fraudulent act. As such, the instant collateral security agreement should be restored. As such, the restitution of the amount of dividends to Defendant AA out of KRW 1 billion on the instant distribution schedule, KRW 500,000,000,000,000 and distributed to the Plaintiff.

2) On November 26, 2013, CCC Holdings remitted KRW 500 million to Defendant AA’s account, and caused Defendant A to repay KRW 500 million to the OBS’s loan obligations to the CCCS as KRW 500 million on the same day, thereby creating appearance that AAA partially repaid the CCCS’s loan obligations to the CCCS. On the same day, and completed the instant mortgage transfer registration by falsity. Accordingly, Defendant AA’s distribution of KRW 500 million, which was paid based on the instant registration of the instant mortgage transfer, based on the registration of the instant mortgage transfer, is based on the registration of the establishment of a null and void mortgage based on a false conspiracy, and thus, it should be deleted and distributed the said KRW 500 million to the Plaintiff.

B. Determination

1) Determination as to the ground for revocation of the fraudulent act [the ground for appeal No. 1]

A) Formation of preserved claims

Since CCCwa’s liability to pay corporate tax, value-added tax, and value-added tax is abstract at the end of the taxable period, the liability to pay corporate tax, and income tax from 2007 to 2011 have already been established at the end of the taxable period, such as the foregoing [the table], and the legal relationship, which has already become the basis of the taxation claim at the time of the contract for the first priority mortgage of this case, has already been established. In the near future, there was a high probability that the head of the tax office having jurisdiction over the near future would impose taxes on the omitted portion through a series of procedures after confirming the above under-reported return of CCCwa. In fact, the possibility of the Plaintiff’s imposition of corporate tax, value-added tax, dividend income tax, wage and salary income tax, and additional dues on the omitted portion becomes feasible prior to the conclusion of the first priority mortgage contract of this case (see Supreme Court Decision 3,792,904, 740, 2006Da636757, Jun. 27, 2007).

B) The intent to commit fraudulent act and to injure

(1) In determining whether an obligor’s insolvency, which is the requirement to exercise the obligee’s right of revocation, requires that, in principle, an act that can be deemed a fraudulent act was committed prior to the occurrence of the act. However, there is a high probability that the legal relationship, which is the basis of the establishment of an obligation, has already been established at the time of the fraudulent act, and that the obligation is established in the near future, based on such legal relationship. In fact, in the near future, the probability of realizing the obligation in the near future, the obligation should also be included in the obligor’s small property (see Supreme Court Decision 2010Da68084, Jan. 13, 201). An obligor in excess of the obligation constitutes a fraudulent act in relation to another obligee, barring special circumstances (see Supreme Court Decision 97Da10864, Sept. 9, 197).

In full view of the purport of the pleadings as indicated in the evidence evidence No. 12 (Standard Balance Sheet), the value of positive property around December 201, 307,357,89,84 (affirmative exceeds KRW 1,091,103,187,000,030,031, and the value of passive property (affirmative exceeds KRW 1,4091,103,187,000). CCC’s active property value on or before December 2012 is 4,192,53,901 (affirmative 1,208,586,670,000,000,000 won). From 207 to 205, it is sufficiently confirmed that CCC’s total amount of principal property is 305,005,005,000 won (negative’s principal property value).

According to the above facts, although CCCS was in excess of its obligation, it was ordered Defendant AA to set up a collateral on the instant real estate, so it is reasonable to view that CCCS was a fraudulent act that causes damage to general creditors, such as the Plaintiff, and CCCS was notified of its tax liability additional due to under-reported declaration such as corporate tax, etc. at the time of the first collateral security contract, and that the first collateral security contract of this case was harmed by the general creditors. Furthermore, Defendant AAA’s bad faith, a beneficiary, is presumed legally.

As to this, Defendant AA did not know that the instant No. 1 collateral security contract was a fraudulent act detrimental to general creditors. However, in the event that an obligor’s act of disposing of property against a third party constitutes a fraudulent act, objective and objective evidence should be supported when recognizing that the beneficiary was bona fide at the time of the fraudulent act, and there is no evidence to reverse the said presumption, and therefore, Defendant AA’s defense is without merit.

(C) cancellation and reinstatement;

Therefore, the instant collateral creation contract concluded between CCCwa and Defendant AA should be revoked as a fraudulent act. Accordingly, the amount of KRW 500 million for Defendant AA according to the registration of establishment of a mortgage on the first place of the instant distribution schedule is deleted, and the amount of KRW 224,785,219 is corrected to KRW 724,785,219,219, which is the amount of dividends to the Plaintiff.

2) Determination as to the assertion of false representation of conspiracy [the above 2]

On November 26, 2013, as alleged by the Plaintiff, there is no evidence to acknowledge that CCCB remitted KRW 500 million to Defendant AA on November 26, 2013 and repaid the obligation to pay KRW 500 million to the OA bank under the name of the Defendant AA. It is insufficient to recognize that the instant mortgage transfer registration was null and void as it was based on a false conspiracy. There is no other evidence to acknowledge otherwise (or evidence Nos. 1-1, 2, 2, 2, 2, 3, and 4, comprehensively taking account of the overall purport of the arguments in the evidence No. 1-2, 2013, 070 won upon termination of its own deposit on November 26, 2013; Defendant AAA’s subrogation on the part of the Plaintiff’s obligation to pay the amount of KRW 515,019,070,000 to the OA on November 26, 2013.

3. Determination as to the Plaintiff’s claim against Defendant BB

(a) Basic facts;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 7, 8, and 1.

1) Defendant BB entered into a contract with DDR on August 1, 2004 to transfer 25,000 shares of CCCwec to DDR at KRW 1 billion. In order to secure the payment obligation of the said transfer price, DDR entered into a loan certificate with the effect that it borrowed 1 billion interest rate of KRW 18 billion per annum and due date on July 30, 2006.

2) On August 1, 2004, CCCB guaranteed the payment guarantee period of KRW 1 billion for the share transfer price to Defendant BB on July 30, 2006.

3) On June 11, 2012, Defendant BB demanded the CCCwa to pay the principal amount of KRW 1 billion and interest KRW 1 billion (1.8% per annum from August 1, 2004 to June 10, 2012) to KRW 2 billion, and CCCwa Holdings partially paid KRW 800 million to Defendant B as of June 11, 2012.

4) On November 21, 2012, “CCB” guaranteed the payment of KRW 500 million remaining after paying KRW 500 million of the purchase price of DD’s stocks to Defendant BB, up to December 31, 2013, under the agreement to pay up to December 31, 2013 for the remaining KRW 500,000,000,000,000.

B. Summary of the Plaintiff’s assertion

On August 1, 2004, the CCCB guaranteed the payment of the transfer price of KRW 1 billion against Defendant BB by setting the payment guarantee period on July 30, 2006 to Defendant BB. Therefore, since CCC’s payment guarantee obligation against Defendant BB became extinct by prescription on July 30, 201, the instant registration of the establishment of the secondary collateral security for the said payment guarantee obligation is null and void by means of false conspiracy.

Even if the debt guaranteed by the statute of limitations has not expired, CCCwa Holdings is obligated to pay only KRW 1 billion, the guarantee limit amount, and CCCwa Holdings paid KRW 800 million to Defendant BB on June 11, 2012, but completed the registration of creation of the second class mortgage of this case with the maximum debt amount of KRW 500 million, and thus, the registration of creation of the second class mortgage of this case is null and void based on the false agreement.

Therefore, since the dividend following the registration of the establishment of the second class mortgage of this case is illegal, the dividend amount of Defendant BB among the dividend table of this case should be deleted in KRW 254,100,479 and distributed to the Plaintiff.

C. Determination

Article 12 and 13 of the Evidence No. 12 and No. 2 of the instant case is insufficient to recognize that the establishment registration of mortgage was null and void on the basis of false representation. There is no other evidence to acknowledge the establishment registration [In light of the above basic facts, even if the liability for payment guarantee based on the CCC’s payment guarantee contract on August 1, 2004 expired on July 30, 201, the CCCwa shall waive its prescription interest and pay KRW 80 million to Defendant BB on June 11, 2012, and the obligation for payment of principal and outstanding principal and outstanding principal and outstanding amount of KRW 1.5 billion to Defendant BB on November 21, 2012, the obligation for payment guarantee of KRW 1.5 billion on the basis of new payment guarantee contract with the principal and outstanding amount of KRW 2.5 billion on the basis that the remainder of the payment guarantee obligation of KRW 1.6 billion on the basis of the loan and late payment delay damages of KRW 1.68 billion on the basis of the loan No. 201 billion on the remainder.

Therefore, the plaintiff's above assertion against the defendant BB is without merit.

4. Conclusion

If so, the plaintiff's claim against the defendant AA is reasonable within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The plaintiff's claim against the defendant BB is dismissed as it is without merit. It is so decided as per Disposition.