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

Boh Co., Ltd., Ltd., the bankrupt party to the lawsuit of comprehensive timber, shall be deemed to have been appointed by the bankruptcy trustee of the comprehensive timber, Defendant 1 (U.S. Defendant 4) and four others (L.S.)

May 20, 2011

1. (a) On August 31, 2006, the reservation entered into on August 31, 2006 with respect to each of the real estate listed in the separate sheet between Bohman wood Co., Ltd., Ltd., Defendant 2 (Largeer Defendant 1) and Nonparty 1 (resident registration number omitted) has been cancelled within the limit of KRW 94,45

B. We cancel the contract to establish a right to collateral security, which was concluded on August 31, 2006 with respect to each of the real estate listed in the separate sheet between Boyman's General Timber and the above non-party 1, within the limit of 94,455,354

C. The contract to establish a right to collateral security concluded on August 31, 2006 with respect to each of the real estate indicated in the separate sheet between Boan wood Co., Ltd., Ltd., Defendant 2 (FOA), Defendant 3 (FO2), Defendant 4 (FO5), Defendant 5 (FO3) and Nonparty 1, shall be revoked within the limit of KRW 94,455,354.

2. The Defendants shall pay to each Plaintiff 94,455,354 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Establishment of a fraudulent act;

(a) Facts of recognition;

According to Gap evidence Nos. 1 through 13 (including various numbers), the plaintiff entered into a credit guarantee agreement with non-party 1 corporation on December 30, 2002, and the quasi-construction corporation on February 25, 2005. The plaintiff subrogated 429,680,820 won to the non-party 1, and filed a lawsuit claiming indemnity against the non-party 1 (Seoul Western District Court 2006No680) (the non-party 1 was 305,25,519 won and the principal amount of the non-party 294,28,456 won and the non-party 2 was 18% per annum from February 25, 2005 to May 31, 2005, and the non-party 2 was 15% per annum of the total amount of interest of the non-party 1 corporation and the non-party 2 corporation's damages for late payment due to the non-party 2's bankruptcy.

B. Determination

According to the above facts of recognition, it is reasonable to see that Nonparty 1 was aware that he would harm creditors including the Plaintiff at the time of each of the above legal acts. Since comprehensive timber or Defendant 2 (Defendant 1 on board), Defendant 3 (Defendant 2 on board), Defendant 4 (Defendant 5 on board), and Defendant 5 (Defendant 3 on board), barring any special circumstance, each of the above legal acts should be revoked as a fraudulent act, and the Defendants should bear the duty of restoration therefrom.

2. Judgment on the Defendants’ assertion

(a) the agreement on exemption or the arrangement of a lawsuit;

The Defendants asserted that the Plaintiff received reimbursement of KRW 400 million among them in the name of Nonparty 1 and exempted all the remainder, and that they agreed with the Defendants to bring an action against the Defendants. However, it is insufficient to recognize the amount solely by the descriptions of subparagraphs 1 through 5, 1, and 2, or the testimony of Nonparty 23 by Nonparty 23, and there is no reason to acknowledge it.

B. Violation of the good faith principle

The defendants asserted that the cancellation of debt reduction or exemption on the ground that the plaintiff did not perform his/her obligation with a short grace period to the extent that it would not be possible to repay the remaining debt upon the repayment of KRW 400 million, violates the good faith principle. However, according to each of the evidences Nos. 15 through 18, 19-1, and 2, according to the first statement, the plaintiff notified that the approval of debt reduction or exemption would be automatically cancelled if the plaintiff pays KRW 400 million upon the application of Nonparty 1 at the time of approval that he/she would grant the remainder of the debt reduction or exemption. However, even if the plaintiff had already been paid one-lane until September 10, 2009, two-lanes extended the payment of KRW 400 million until December 24, 2009, Nonparty 1 or the defendants did not accept the payment of the money by the last deadline. Nevertheless, they did not accept the payment by each deadline.

(c) Implic approval or ratification;

The Defendants asserted that, at the time of Nonparty 1’s repayment of KRW 400 million on January 25, 2010, the Plaintiff impliedly approved or ratified the remaining debt reduction or exemption. However, according to the statements in subparagraphs 1 and 2-1 and Nonparty 23 as well as the witness Nonparty 23’s testimony, the Defendants clearly stated that the person in charge at the time cannot perform the remaining debt reduction or exemption other than KRW 400 million as originally stated. Therefore, it is without merit.

(d) Good faith;

(1) The Defendants asserted that the Plaintiff was bona fide at the time of each of the above legal acts because Nonparty 1 or quasi-construction corporation did not notify the Plaintiff that there was a debt owed to the Plaintiff, and thus, the Plaintiff was unaware of the fact that the Plaintiff was the obligee of Nonparty 1 at the time of each of the above legal acts. However, in fraudulent acts, it is not necessary to recognize that it was known that there was a shortage of joint security of creditors,

(2) The Defendants asserted that they were bona fide inasmuch as they were unaware of the fact that there was a shortage of creditors’ joint security at the time of each of the above legal acts. However, in light of the fact that the Defendants voluntarily acknowledged that Nonparty 1 or Nonparty 1 was a bond group composed of quasi-Construction Co., Ltd., a representative director, and that they concluded and completed a pre-sale or collateral security contract as above in order to recover claims after the default of the quasi-Construction Co., Ltd., the Defendants’ submission of all evidence, even based on all of the evidence, are insufficient to acknowledge that the presumption was followed and that the Defendants

(e) Occurrence of shortage in common security.

The Defendants asserted that the Defendants provided additional contributions and added value to ○○○○ building on the ground of Yongsan-gu Seoul Metropolitan Government ( Address omitted), which had not been completed at the time, and completed the Defendants’ leading work by providing additional contributions and added value does not undermine the common interests of creditors, and thus, each of the above legal acts should be limited to the scope of revocation, i.e., the scope of the Defendants’ claim secured by lien, excluding the amount of the Defendants’ claim secured by lien. However, even if the value of the property increased due to the Defendants’ additional contributions, this is the case’s own choice in order to recover the construction cost, and the issue in this case is not the issue, but the general construction cost creditors, including the Plaintiff, etc., have secured a superior status due to the provisional registration and the creation of mortgage, etc., so long as there is no evidence to acknowledge that the Defendants had been a lien holder meeting all the requirements for establishing a lien at the time, and even if having been a lien holder, they do not accept all the above assertion that the Defendants had secured the status of the Plaintiff and the general creditors as above.

F. Article 66 of the Civil Act

Defendant Boh Co., Ltd., the bankrupt party, a party to bankruptcy, completed provisional registration in accordance with Article 666 of the Civil Act, which was based on the provisional registration in order to secure priority over other creditors at the time of construction work, and Boh Co., Ltd., the court below asserted that each of the above legal acts is not a fraudulent act since provisional registration was completed due to payment in kind, even if the comprehensive timber was not so, since the principal contractor's right to demand mortgage was completed at the time of payment in kind, it is not a fraudulent act. However, Article 66 of the Civil Act, which provides for the contractor's right to demand mortgage, provides for the contractor's right to demand mortgage, if the ownership of the object is naturally reverted to the contractor, it is difficult for the contractor to give the right to demand mortgage on the object so that the contractor can actually receive a preferential payment from the object. In light of the fact that the status of the contractor is no longer strengthened than that of the general creditors of the contractor, it is difficult for the contractor to consider that the principal contractor of new building did not have agreed to establish the above general right to demand mortgage as well.

3. Conclusion

According to the evidence No. 8-1 through No. 16 of the above legal act, since provisional registration and establishment registration of neighboring mortgage are recognized to have been entirely cancelled due to transfer, partial abandonment, etc., it was impossible to cancel the above provisional registration and establishment registration of neighboring mortgage in the way of restitution. Thus, it was not possible to cancel the above provisional registration and establishment registration of neighboring mortgage by the method of restitution. Thus, it is decided as per Disposition by ordering the defendants to cancel the above legal act as a fraudulent act within the limit of KRW 94,455,354, which is the total market value of each real estate stated in the separate sheet No. 12-1 through No. 16, and up to KRW 6,952,00,000, which is the total market value of each real estate stated in the separate sheet prior to the date of closing argument of this case, and to order the defendants to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following

[Attachment List omitted]

Judges Song Jong-dae