Arboretums Co., Ltd. (Attorney Lee Jong-sung, Counsel for defendant-appellant)

Defendant (Law Firm Il Digital, Attorneys Lee Na-ju et al., Counsel for the defendant-appellant)

December 28, 2011

Seoul Eastern District Court Decision 2010Gahap12775 Decided January 12, 2011

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract for a monetary loan concluded by a notary public on September 25, 2009 between the non-party 1 (joint defendant 1 of the judgment of the first instance) and the defendant on the notarial deed set forth in subparagraph 73 of Article 2009 shall be revoked within the limit of KRW 50,00,000. On January 21, 2010, the decision to commence compulsory auction (2010,952) made by the Seoul Central District Court on January 21, 2010 shall be revoked.

2. Purport of appeal

The judgment of the court of first instance is revoked. The plaintiff's claim is dismissed (1) (2) In this case against the defendant, the court of first instance accepted only the plaintiff's claim for revocation of the fraudulent act, and 2). However, since the defendant appealed only to the claim for revocation of the fraudulent act, the scope of the judgment of this court is limited to the claim for revocation of the fraudulent act).

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the arguments in Gap evidence of 1 to 8 and Eul evidence of 1 to 11 (including the number of branch numbers).

A. Damage claim against the non-party 1 (Co-defendant 1 of the first instance judgment) by the non-party 3

(1) Nonparty 1 (Co-Defendant 1 of the judgment of the court of first instance) was a director of the World Ballast Co., Ltd. and multi-owner Co., Ltd., a multi-level fund-raising company, from July 5, 200 to February 22, 2001, and suffered losses from Nonparty 4, by deceiving Nonparty 3, an investor, and thereby preventing Nonparty 3 from collecting part of the investment amount. Nonparty 3 was 586,980,000 won of the investment amount which was invested and did not recover. Nonparty 3 was 50% of the negligence of Nonparty 3. The amount of damages for which Nonparty 1 (Co-Defendant 1 of the judgment of first instance) is liable to compensate to Nonparty 3 was 293,490,000 won.

(2) Nonparty 3 filed a lawsuit against Nonparty 1 (Co-defendant 1 of the judgment of first instance) seeking compensation of KRW 150,000,000, which is a part of the damages caused by the said tort, by Seoul Central District Court 2004Gahap79125, and was sentenced to a judgment in favor of all of the judgment on September 27, 2005 (hereinafter “the judgment of first instance”). Accordingly, Nonparty 1 (Co-defendant 1 of the judgment of first instance) appealed to Seoul High Court 2005Na909111, but the appeal was dismissed, and the judgment of first instance became final and conclusive as is.

B. Sale of each real estate of this case

(1) The building indicated in the separate sheet (hereinafter “instant building”) and the land indicated in the separate sheet (hereinafter “instant land”) were the only property of Nonparty 1 (Co-Defendant 1). Nonparty 1 (Co-Defendant 1 in the judgment of the court of first instance) sold the instant land to Nonparty 2 (Co-Defendant 1 in the judgment of first instance), respectively, on October 21, 2006, after selling the instant land to the Defendant, and on November 28, 2006, the Defendant completed each registration for transfer of ownership to Nonparty 2 on October 23, 2006 (Co-Defendant 1 in the judgment of first instance), and Nonparty 5, the husband of Nonparty 1 (Co-Defendant 1 in the judgment of first instance), and Nonparty 5 sold the entire share of the instant land to Nonparty 1 (Co-Defendant 1 in the judgment of first instance) and Nonparty 1’s co-defendant 2,300,000,000 won among the entire share of the instant building and the instant land.

(2) At the time, the Defendant and Nonparty 2 agreed to pay in cash the total purchase price of KRW 395,000,000 out of KRW 6770,000,000, and the remainder of KRW 275,000,000,000 were to acquire the obligation to return the lease deposit in relation to the entire building of this case.

C. The non-party 3 filed a lawsuit claiming compensation for the remaining damages due to the tort of paragraph A (1) against the non-party 1 (Co-defendant 1 of the judgment of the court of first instance) as Seoul Eastern District Court 2007Gahap10458, and the lawsuit claiming the revocation of the fraudulent act against the defendant and the non-party 2. On April 11, 2008, the above court ordered the non-party 1 (Co-defendant 1 of the judgment of first instance) to pay the remaining remaining damages to the non-party 3 (586,980,000 won - 150,000 won) and revoked each of the sales contracts of this case as a fraudulent act, and the registration of the transfer of ownership in the defendant's name "(hereinafter referred to as "the second judgment of this case") was revoked at that time, and the above judgment became final and conclusive at that time.

D. As the instant sales contract was revoked as a fraudulent act, the Defendant and Nonparty 2 agreed between the Defendant and Nonparty 1 (Co-Defendant 1 of the judgment of the first instance) on KRW 400 million for the return of unjust enrichment or the amount of damages that the Defendant and Nonparty 2 held against Nonparty 1 (Co-Defendant 1 of the judgment of the first instance). On September 25, 2009, Nonparty 2 concluded a loan agreement on a loan for consumption based on the Notarial Digital Deed No. 72 and 73 of the judgment of the first instance with respect to KRW 50 million with respect to KRW 50 million with the debtor.

E. On January 21, 2010, the Defendant filed an application for compulsory auction for each real estate listed in the separate sheet based on the above 73 No. 73, and rendered a decision to commence compulsory auction under the Seoul Eastern District Court 2010taeng952.

F. Meanwhile, according to the judgment of the court of first instance and the judgment of the court of first instance, Nonparty 3 transferred to the Plaintiff each of the damages claims against Nonparty 1 (joint Defendant 1 of the judgment of the court of first instance).

2. The parties' assertion

A. The plaintiff's assertion

The loan agreement for consumption concluded between the defendant and the non-party 1 (joint defendant 1 of the judgment of the court of first instance) on September 25, 2009, which was concluded between the defendant and the non-party 1 (joint defendant 1 of the judgment of first instance) is deemed to have been executed by pretending that money was not actually received, and thus constitutes a false representation of conspiracy, or even if it is not so, it should be revoked as a fraudulent act

B. Defendant’s assertion

The instant loan for consumption was revoked as a fraudulent act and its purpose could not be achieved. The Defendant was concluded to legally cancel the instant contract under the agreement with Nonparty 1 (Co-Defendant 1 of the first instance judgment), and thus, to obtain a refund of the claim for restitution therefrom. Therefore, the instant contract for the loan for consumption was not a fraudulent act.

3. Determination

A. Generally, in a case where a fraudulent act is a commercial act, the beneficiary is deemed to have suffered loss as much as the value of the returned property, while the beneficiary, as an obligor who received the return of property, takes profit without any cause, and thus, the beneficiary shall have a claim for return of unjust enrichment against the debtor, or shall have the right to claim restitution of unjust enrichment and restitution of the original state. However, all the beneficiary's above claim for return of unjust enrichment and the claim for restitution of the original state against the debtor shall be deemed to have been incurred after the fraudulent act. Since the person who acquired the claim after the fraudulent act does not understand the property recovered by the revocation of the fraudulent act as the debtor's joint security at the time of the acquisition of the claim, giving the beneficiary the same status as other general creditors with respect to the property recovered by the revocation of the fraudulent act is to reduce the joint security of other general creditors, it goes against

B. The loan contract of this case concluded between the defendant and the non-party 1 (joint defendant 1 in the judgment of the court of first instance) is revoked by fraudulent act, and the contract of this case was concluded in order to guarantee the right to claim restitution of unjust enrichment against the non-party 1 (joint defendant 1 in the judgment of the court of first instance) or the right to claim restitution of unjust enrichment in accordance with the termination of contract. The purpose of guaranteeing the claim arising after fraudulent act is to further deepen the insolvency of the non-party 1 (joint defendant 1 in the judgment of first instance). Thus, the loan contract of this case should be revoked as a fraudulent act detrimental to the general

C. Judgment on the defendant's assertion

(1) The defendant's assertion

15,00,000 won (30,000,000 won x 1/2) claims for the return of lease deposit x 1/2) are claims held by the defendant against the non-party 1 (joint defendant 1 of the judgment of the first instance) before the conclusion of the instant sales contract, and thus, it should be excluded from the scope of revocation of fraudulent act.

(2) Determination

㈎ 사해행위 취소소송 제기에 의하여 그 취소와 원상회복이 확정된 경우에, 사해행위의 상대방인 수익자는 그의 채권이 사해행위 당시에 그대로 존재하고 있었거나 또는 사해행위가 취소되면서 그의 채권이 부활하게 되는 결과 본래의 채권자로서의 지위를 회복하게 되는 것이므로, 다른 채권자들과 함께 민법 제407조 에 의하여 그 취소 및 원상회복의 효력을 받게 되는 채권자에 포함된다고 할 것이고, 한편 채무자의 재산에 대한 강제경매절차에서 평등하게 배당받기 위해 집행권원을 필요로 하는 수익자의 요구에 따라 채무자가 그 수익자에 대한 기존채무의 변제를 위하여 소비대차계약을 체결하고 강제집행을 승낙하는 취지가 기재된 공정증서를 작성하여 준 경우에는 그와 같은 행위로 인해 자신의 책임재산을 특정 채권자에게 실질적으로 양도한 것과 다를 바 없는 것으로 볼 수 있는 특별한 사정이 있는 경우에 해당하지 아니하는 한 다른 채권자를 해하는 사해행위가 된다고 볼 수 없다( 대법원 2011. 12. 22. 선고 2010다10337 판결 등 참조).

㈏ 그러나 이 사건 사해행위 취소전에 피고와 소외 1(1심판결의 공동피고 1) 사이에 적법하게 임대차계약이 체결되었는지 여부에 관하여 보건대, 피고가 소외 1(1심판결의 공동피고 1)과 사이에 임대차계약이 체결되었다고 주장하면서 제출한 임대차계약서(을 제12호증)에는 그 임차인이 피고의 아버지인 소외 6으로 되어 있을 뿐이고, 달리 피고의 주장사실을 인정할 별다른 증거가 없다. 따라서 피고의 위 주장은 이유 없다.

3. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Young-chul (Presiding Judge)