Korea Credit Guarantee Fund (Attorney Choi Byung-jin, Counsel for the defendant-appellant)

Defendant (Attorney Cho Jae-soo, Counsel for the defendant-appellant)

May 9, 2007

Busan District Court Decision 2006Gahap7832 Delivered on October 18, 2006

1. The appeal is dismissed.

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

1. Purport of claim

The contract to establish a mortgage concluded on April 20, 2005 with respect to the real estate listed in the separate sheet between the defendant and the non-party 1 of the first instance trial shall be revoked. The defendant will implement the procedure to cancel the registration of cancellation of the registration of the establishment of a neighboring mortgage, which was completed on April 20, 2005 by the Changwon District Court Kim Sea Registry (No. 37042).

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged by taking into account the following facts: Gap evidence (including paper numbers; hereinafter the same shall apply), Eul evidence (including paper numbers), Eul evidence 2 through 5, 16 through 19, the testimony of non-party 2 and non-party 1 of the first instance trial witness, the testimony of non-party 1 of the first instance trial witness and non-party 1 of the first instance trial witness, the whole purport of the pleadings as a result of the fact inquiry into the Kim Sea market of the court of first instance, and the statement of

A. The plaintiff entered into a credit guarantee agreement with the non-party 1, who operated the Do and Retail Business Co., Ltd. (mutual name 1 omitted), with the principal of 48 million won on August 26, 2002, with the term of guarantee extended on August 25, 2003 (the extended on August 25, 2005), with the term of guarantee extended on August 29, 2003, with the term of guarantee extended on August 27, 2004, with the term of guarantee extended on August 27, 2004 (the period extended on August 27, 2005), with the term of guarantee agreement covering KRW 68 million on September 21, 200, with the term of guarantee obligation guaranteed by the plaintiff as the term of guarantee obligation guaranteed by the non-party 1, with each of the above credit guarantee agreements being paid by the plaintiff as compensation for damages incurred by the plaintiff to the non-party 1 as the term of guarantee obligation.

B. Nonparty 1 submitted a credit guarantee certificate concerning each credit guarantee contract of this case by the Plaintiff to the National Bank of Korea (hereinafter “National Bank”), and received loans from the National Bank of Korea in the amount of KRW 60 million on August 26, 2002, KRW 60 million on August 29, 2003, KRW 80 million on September 21, 2004, respectively.

C. After that, Nonparty 1 did not pay interest to the National Bank on April 22, 2005 and caused a credit guarantee accident that loses the benefit of the term of the loan. On August 31, 2005, the Plaintiff paid 141,013,340 won in total to the National Bank within the scope of guarantee under each credit guarantee contract of this case on August 31, 2005, and paid 1,331,570 won in total as expenses to compensate for the right to indemnity as to the above amount of subrogation. Nonparty 1 recovered 20,060,35 won in total, including 20,060,355 won on November 15, 2005, 18,728,785 won in subrogation, and 1,331,570 won in subrogation, and the remaining amount of delay damages incurred by the Plaintiff was recovered by 1,331,250 won in total by 205,250 won in subrogation.

D. Meanwhile, on March 28, 2005, the Defendant lent 60 million won to Nonparty 1 on April 15, 2005 by setting the due date for reimbursement. On April 8, 2005, the Defendant, on behalf of Nonparty 1, on payment of KRW 18,232,200 to Nonparty 2, made a contract with Nonparty 1, setting the said subrogated amount as the due date for payment on April 15, 2005. On April 20, 2005, the Defendant concluded that the apartment as indicated in the [Attachment] list, which is the only real estate claim as security of each of the above loans (hereinafter “instant apartment”), was established with the maximum debt amount of KRW 7,825,50,00 as the debtor, and that the mortgage registration office was established with respect to the apartment as the sole debtor’s property (hereinafter “instant apartment”). On April 20, 2005, Nonparty 1 and Nonparty 1 received the mortgage establishment registration as the Defendant’s property (negative 274, etc.

E. At the time the establishment registration of the neighboring apartment of this case was completed, on July 8, 1996 and September 3, 1996, the sum of the maximum debt amount set up in the future for Samsung Fire and Marine Insurance Co., Ltd., Samsung, as well as the maximum debt amount of KRW 48 million on June 30, 1997, and July 25, 1997, the sum of the maximum debt amount set up in the name of the Sejong Chemical Industry Co., Ltd. (hereinafter “Setrochemical chemical”), was priority over the defendant, and there was no provisional attachment or seizure registration.

2. The assertion and judgment

(a) Claims for preservation;

According to the above facts of recognition, Nonparty 1 is obligated to pay to the Plaintiff 122,717,714 won (=122,284,55 won + 431,069 won + 2,090 won) and damages for delay at the rate of 15% per annum from August 31, 2005 to the date of full payment.

However, the Plaintiff’s claim for indemnity against Nonparty 1 was incurred after April 20, 2005, which is the date of the instant mortgage contract. However, each credit guarantee contract of this case, which is the basis of the occurrence of the claim, was already established between August 26, 2002 and September 21, 2004, and Nonparty 1 caused a credit guarantee accident that loses the benefit of the term of the loan due to delinquency in interest on April 22, 2005, it was highly probable that the Plaintiff’s claim for indemnity would accrue due to the performance of the Plaintiff’s guarantee obligation in the near future. It was highly probable that it was actually established, and the Plaintiff acquired the claim for indemnity by paying the principal and interest of Nonparty 1 by subrogation on August 31, 2005. Thus, the Plaintiff’s claim against Nonparty 1 can be deemed the preserved claim of the obligee’s right of revocation.

(b) Fraudulent act;

(1) Determination of the cause of the claim

Unless there are special circumstances, Nonparty 1’s act of entering into a mortgage contract in relation to the apartment of this case owned by him with the Defendant is a fraudulent act subject to creditor’s right of revocation in relation to other creditors, barring any special circumstance.

In addition, in light of the fact that Nonparty 1 did not lose the benefit of the time limit for the loan due to the delinquency in payment of interest, and that Nonparty 1 concluded the mortgage contract of this case with the Defendant before the title was completed, it is reasonable to deem that Nonparty 1 was aware that the contract of the mortgage of this case would prejudice other creditors by establishing the mortgage of this case. The Defendant’s bad faith as the beneficiary is presumed.

(2) Judgment on the defendant's assertion

(A) On March 28, 2005, the defendant paid 30 million won of value-added tax, which is the national tax with the right to preferential payment on the same day, as part of the 60 million won borrowed from the defendant on March 28, 2005, and 380,950 won of wage and salary income on April 31, 2005, and the defendant asserted that on April 20, 2005, on behalf of the non-party 1, the right to collateral security was created and on behalf of the non-party 1, the amount of the non-party 1 paid 20,387,600 won to the non-party 1 on May 16, 2005, the total amount of the non-party 10,387,600 won to the non-party 1 on May 16, 200, and thus, the contract to collateral security in this case does not exceed the maximum debt amount of KRW 15,500,386,5000 million (hereinafter

However, in the event that real estate with mortgage was transferred by a fraudulent act, such fraudulent act is established within the scope of the balance obtained by deducting the amount of secured debt from the market price of the real estate. This is because the part equivalent to the amount of secured debt in the market price of the real estate was not the initial creditors' joint collateral. Such security right excluded from the establishment of a fraudulent act is limited to the right to preferential reimbursement of the real estate itself, and otherwise, a tax claim that is entitled to exercise the obligor's right to preferential reimbursement of all the property prior to the fraudulent act is already subject to provisional seizure or seizure of the real estate and can be treated as having preferential reimbursement right like the security right in the execution procedure. According to the evidence evidence evidence No. 16, since the above value-added tax and the tax claim of wage and salary income tax at the time of the mortgage contract of this case were not seized or seized on the apartment of this case, it cannot be readily concluded that the non-party 1 borrowed KRW 60 million from the defendant on March 28, 2005 and paid KRW 30 million in the same year 2008.

In addition, comprehensively taking account of the statement Nos. 8, 9 and 19 as well as the testimony of Non-party 1 as to non-party 2's testimony on April 20, 2005, the defendant, after being established a right to collateral security with respect to the apartment of this case on May 3, 2005, paid 20,387,600 won to non-party 20,387,00 won to non-party 20,360 won in total, can be acknowledged that the establishment of a right to collateral security was cancelled on Oct. 24, 2005 by setting up the right to collateral security under the name of the non-party 1's third party 20,70,000 won in total to secure non-party 3's right to collateral security upon being aware that the right to collateral security was discharged on Oct. 24, 2005, the defendant did not know that the above right to collateral security was discharged under the name of the non-party 1's witness 28.

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

(B) The Defendant properly set up a collateral on the apartment of this case as security of KRW 60 million and KRW 18,232,200 of the subrogated amount for Nonparty 2. Nonparty 1 asserted that, out of the above loan amount, Nonparty 1 did not know that Nonparty 1 would harm other creditors of Nonparty 1 due to the instant collateral security contract, the Defendant did not know that Nonparty 1 would be able to harm the other creditors of the instant apartment of this case.

In a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proving that the beneficiary was the fraudulent act. In this case, when recognizing that the beneficiary was bona fide at the time of the fraudulent act, it should be based on objective and acceptable evidence, etc., and only on the unilateral statement of the debtor or a statement that is merely a third party, it should not be concluded that the beneficiary was bona fide at the time of the fraudulent act (see Supreme Court Decision 2004Da61280, Jul. 4, 2006).

In this case, the defendant lent 60 million won to the non-party 1 on March 28, 2005 and subrogated 18,232,200 won to the non-party 1 on April 8, 2005 as seen above, and comprehensively taking account of the overall purport of pleading Nos. 12 and 13 on March 31, 2005, the non-party 1 paid 22,055,80 won to the non-party 1 on April 4, 2005, and 11,829,170 won to the non-party 1 on the non-party 1 on the non-party 2's testimony of this case and the non-party 1 on the non-party 2's testimony of the non-party 1 on April 1, 2005, it cannot be acknowledged that the defendant did not know that the non-party 1 was the non-party 2's non-party 2's obligation to the non-party 2 and the non-party 15-party 1.

3. Conclusion

Therefore, the mortgage contract of this case should be revoked as a fraudulent act, and the defendant is obligated to implement the registration procedure for cancellation of the registration of the establishment of the mortgage of this case to the non-party 1 as a result of restitution to its original state, so the plaintiff's claim against the defendant will be accepted as reasonable. However, the part against the defendant in the judgment of the court of first instance is just as it is concluded, and the defendant's appeal is dismissed

[Attachment List of Real Estate]

Judges highest (Presiding Judge) and Lee Jin-soo