Seoul Guarantee Insurance Co., Ltd. (Attorney Lee Chang-won, Counsel for defendant-appellee)

Defendant (Law Firm Pool, Attorney Lee Dong-soo, Counsel for the defendant-appellant)

May 14, 2009

1. The contract to establish a collateral security concluded on August 1, 2006 between the defendant and the non-party 1 (resident registration number omitted, Kim Young-dong No. 1 omitted) is revoked.

2. Of the distribution schedule prepared by the same court with respect to a compulsory auction case against the plaintiff at Daegu District Court Kimcheon-do 2007tacheon-gu 4805, Feb. 22, 2008, the amount of dividends 14,211,148 won against the plaintiff shall be corrected to 60,92,063 won, and the amount of dividends 46,780,915 won against the defendant shall be deleted.

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

The same shall apply to the order.

1. Facts of recognition;

The following facts do not conflict between the parties, or can be acknowledged by considering the whole purport of arguments in relation to the fact inquiry results against Gap evidence No. 1, Gap evidence No. 2-1 through 3, Gap evidence No. 6, Gap evidence No. 7, and 8, the market price appraisal results of this court's appraisal of the number of expert rights of the appraiser of this court, and Kimcheon-si, Kimcheon-si, Kimcheon-gu, Nonghyup National Agricultural Cooperative, and Kimcheon- Livestock Cooperative.

A. Plaintiff’s claim against Nonparty 1

(1) The policy holders listed in the table (2) set out in the table (2) entered into a guarantee insurance contract with the Plaintiff as of the date of entering into each contract indicated in the table (1) in order to obtain a guarantee insurance policy for the payment of restoration deposit for the approval and permission of changing the form and quality of a forest and submit it to the city of Kimcheon. In the event that the above company failed to pay the restoration deposit at Kimcheon-cheon-si, the Plaintiff paid the damages on behalf of Kimcheon-cheon-si within the insurance coverage amount. The above company agreed to pay the damages on behalf of the Plaintiff within the maximum overdue interest rate set by the Plaintiff among the insurance amount paid by the Plaintiff and the payment date of the insurance amount paid by the Plaintiff and the general interest rate in commercial banks, and Nonparty 1, 2, and 3 jointly and severally guaranteed the above company’s liability for compensation against the Plaintiff. Nonparty 1 is the director of the non-party 4 corporation, the non-party 3 is the

(2) The above company delayed the payment of the deposit for restoration to its original state, and the plaintiff paid the whole purchase amount of each insurance policy listed in Table 3 below on the payment date of Kimcheon-si as stated in Table 4 below on the payment date of each subrogation stated in Table 3 below. After that, the company collected some of the money from the above company and appropriated it to the principal, and as of August 29, 2006, the principal of the remaining obligation out of the payment by subrogation is listed in the

본문내 포함된 표 순번 ① 계약 체결일 ② 보험계약자 ③보험가입금액 및 대위변제금(원) ④ 대위변제일 ⑤ 회수액(원) ⑥ 대위변제금 잔액(원) 1 2002.12.11. 소외 5 주식회사 240,860,000 2005.10.18. 129,555,770 111,304,230 2 2001.6.26. 소외 4 주식회사 98,450,000 2006.2.1. 29,922,104 68,527,896 3 2003.3.3. 소외 6 주식회사 74,630,000 2006.2.28. 5,931,060 68,698,940 4 2004.5.19. 소외 4 주식회사 61,470,000 2006.2.28. 6,070,040 55,399,960 합계 475,410,000 ？ 171,478,974 303,931,026

(3) On July 27, 2006, the Plaintiff received a provisional attachment order of KRW 315,932,126 on each real estate listed in the separate sheet owned by Nonparty 1 (hereinafter “instant real estate”). On July 28, 2006, the Plaintiff completed the provisional attachment order of KRW 315,932,126 on each real estate listed in the separate sheet owned by Nonparty 1 (hereinafter “instant real estate”). The entry registration was completed on July 28, 2006.

(4) Meanwhile, on March 30, 2006, the plaintiff filed a claim for reimbursement against each of the above companies and the non-party 1 and other joint and several sureties, Daegu District Court 2006dan50144, the above court rendered a judgment that on January 19, 2007, the above company and the non-party 1 and the other joint and several sureties jointly and severally paid to the plaintiff 34,883,610 won and the principal of subrogation 303,931,026 won and the damages for delay calculated at the rate of 19% per annum from August 30, 2006 to January 18, 2007 and from the next day to the date of full payment, the above judgment became final and conclusive around that time.

B. Establishment of the right to collateral security against the Defendant by Nonparty 1

On August 1, 2006, Nonparty 1 entered into a contract to establish the right to collateral security (hereinafter “mortgage”) with the Defendant on the instant real estate, and on the same day, Nonparty 1 completed the registration of establishment of the right to collateral security (hereinafter “mortgage”). Nonparty 2, 3, and Nonparty 2, 3, and 1,000,000 won of the maximum debt amount, and the establishment of the right to collateral security (hereinafter “mortgage”).

C. Auction of the instant real estate and the Plaintiff’s objection to the distribution

(1) According to the above paragraph (a) judgment, the Plaintiff filed an application for a compulsory auction of real estate at Daegu District Court Kimcheon-gu Branch of 2007Ma4805, Jun. 20, 2007, the court of execution prepared a distribution schedule with the content that: (a) the Plaintiff, who is the applicant creditor, shall be divided into KRW 14,211,148, out of the amount of KRW 60,992,063, the date of distribution on February 22, 2008 and the amount to be actually distributed, and distributed KRW 46,780,915 in proportion to the Defendant, who is the mortgagee, as a right to collateral security.

(2) The Plaintiff appeared on the aforementioned date of distribution, and raised an objection to the entire amount distributed to the Defendant, and then filed a lawsuit of demurrer against the distribution on February 27, 2008.

D. Property status of Nonparty 1 at the time of establishing the instant mortgage

(1) The active property of Nonparty 1

At the time of entering into the instant mortgage agreement, Nonparty 1 also owned real estate of KRW 143,476,80 in total at the market price of KRW 143,476,800 in addition to the instant real estate, the real estate of KRW 704 square meters prior to Kimcheon-dong (number 2 omitted), KRW 5,395 square meters prior to the same (number 3 omitted), and KRW 2,95 square meters in the same (number 4 omitted), and KRW 3,260 in the same (number 5 omitted), and KRW 2,192 in the same (number 6 omitted) and KRW 2,192 in the same (number 6 omitted) and KRW 758 square meters in the same (number 7 omitted) and KRW 756 square meters in the same (number 8 omitted) and KRW 1,241,010 in the aggregate of market prices, and thus, the total amount of the real estate of KRW 41,837,008,2828.

(2) The non-party 1's passive property

Around August 1, 2006, if the sum of the secured debt of the first priority mortgage against the livestock cooperative, the agricultural cooperative, the aggregate of the secured debt of the first priority mortgage against the plaintiff 916,768,000 won, and the principal and interest of the debt of the plaintiff 34,883,610 won as of August 29, 2006, exceeds 1,250,000 won if the sum of the principal and interest of the plaintiff 303,931,026 won was calculated at the rate of 19% per annum 303,931,026 won as of August 29, 2006, the provisional attachment registration against the non-party 7 (the provisional attachment registration of each of the above real estate except for the real estate of this case was completed at KRW 400,000,000 won to the non-party 1,500,000 won to the non-party 1,20137.71.7

(3) Comparing positive and negative properties

㈎ 이 사건 근저당권설정계약 당시 소외 1의 총 채무액이 적극재산보다 많았다고 할 수는 없으나, 이 사건 부동산을 제외한 나머지 적극재산만으로는 소외 1의 채무 전부를 변제할 수 없었으므로 이 사건 근저당권 설정 당시 이 사건 부동산은 사실상 재산적 가치가 있는 소외 1의 유일한 재산이었으며, 이 사건 근저당권의 피담보채권액 10억 4,000만원의 설정으로 인해 이 사건 부동산 가액 143,476,800원에서 감소되는 재산가액 1억 1,000여만 원(143,476,800원×10억 4,000만원/(10억 4,000만원+원고의 가압류채권액 315,932,126원)을 공제하면 이 사건 부동산의 재산가액은 3,300여만 원에 불과하여 되어 이 사건 부동산을 제외한 적극재산 1,282,847,080원을 더하여도 채무 총액을 변제하기 부족한 상태가 되었다.

㈏ 이 사건 변론종결일에 가까운 2009. 2. 28. 소외 1의 적극재산 중 위 덕곡동 소재 부동산의 가액이 1,323,574,440원으로서 8,000여만 원 증가하였으나 농협중앙회에 대한 예금채권이 소멸되었고, 원고에 대한 구상금채무 원리금의 증가, 피고에 대한 10억 4,000만원의 근저당권 설정 등으로 채무가 증가하여 이 사건 변론종결일 현재 소외 1은 여전히 채무초과상태이다.

2. Determination

A. Establishment of fraudulent act

(1) The existence of the preserved claim

According to the above facts, at the time of Nonparty 1 entering into a mortgage contract with the Defendant and completing the registration thereof, the Plaintiff’s claim for reimbursement was already incurred, and the registration of provisional seizure was completed on the instant real estate. Therefore, the Plaintiff’s claim for reimbursement against Nonparty 1 is a preserved claim for revocation of fraudulent act.

(2) The establishment of the fraudulent act and the intention to commit the act

In light of the fact that Nonparty 1 could not secure all of the obligations except the instant real estate at the time of the instant mortgage contract, and was actually the only property value of the instant real estate, and the fact that Nonparty 1 created and delivered the instant mortgage worth KRW 1,04,000,000 to the Defendant, which led to the reduction of Nonparty 1’s property and the lack of joint collateral due to Nonparty 1’s decrease in claims or had already been in shortage, the instant mortgage contract, which was offered by Nonparty 1 as security, constitutes a fraudulent act detrimental to the Plaintiff, barring any special circumstances, as it reduces joint collateral against other creditors, barring any special circumstance, the instant mortgage contract, which was offered by Nonparty 1 as security, constitutes a fraudulent act detrimental to the Plaintiff. In light of Nonparty 1’s financial status at the time of the instant mortgage contract, the time of the conclusion of the instant mortgage contract, and the fact that Nonparty 1 established and established the instant mortgage against the Defendant who did not have any claims and debt relations with himself, Nonparty 1 also is presumed to have been a beneficiary of bad faith.

B. Judgment on the defendant's assertion

(1) The plaintiff was requested by the non-party 3, who operates the non-party 4 corporation, to provide loans for the building of a factory on August 1, 2006, and on August 2, 2006, the mortgage of this case was established as a security for the claim. The non-party 1 is also an investor in the non-party 3 and was provided as a security for the non-party 3 to continue its business by borrowing money from the defendant, so it does not constitute a fraudulent act. However, although it is argued that the non-party 1 was not a fraudulent act because the non-party 3 was provided as a security for the non-party 3 to borrow money from the defendant, it is not sufficient to acknowledge the fact that the statement in each of subparagraphs 1, 2, 8, and 9-1 through 8 of evidence Nos. 1, 2, 2, 8, and 9-1 through 8 of evidence Nos. 7, respectively.

(2) The Defendant also did not know at all the financial status of Nonparty 1 or Nonparty 1 at the time of entering into the instant mortgage contract. Thus, the Defendant asserted that the act of entering into the instant mortgage contract did not know at all that it would prejudice the Plaintiff, a creditor.

However, the market price of the real estate of this case is only 140 million won, and the fact that the registration of provisional seizure in the name of the plaintiff in the name of 315,932,126 won of the real estate of this case was completed prior to the conclusion of the contract to establish the mortgage of this case. In light of the above circumstances, each of the evidence submitted by the defendant alone is insufficient to reverse the presumption that the defendant is a malicious beneficiary, and there is no other evidence to acknowledge the defendant's good faith. Therefore, the defendant's above assertion is without merit.

(c) Methods of revocation of fraudulent act and reinstatement;

(1) Therefore, the instant mortgage contract concluded between Nonparty 1 and the Defendant should be revoked as a fraudulent act.

(2) When revoking a mortgage contract as a fraudulent act, if another person acquired ownership and the registration of creation of a neighboring mortgage was cancelled, it is impossible to return the original property. Thus, if the beneficiary received the dividend due to the termination of the distribution, the beneficiary shall be ordered to return the dividend. If the beneficiary received the dividend due to the provisional disposition prohibiting the payment of the dividend, the beneficiary shall be ordered to notify the transfer of the dividend payment claim and the transfer of the claim. However, if the creditor appeared on the date of distribution and raised an objection against the part of the beneficiary's distribution, the creditor may file a lawsuit of demurrer against the distribution as a result of restitution jointly with the lawsuit of revocation of fraudulent act. In this case, the court must cancel the mortgage contract only within the extent that the creditor's claim is not satisfied without considering the existence of other creditors than the creditor who filed a lawsuit of demurrer against the distribution, and only within the extent, delete the dividend amount of the beneficiary and correct it as the amount of distribution to the creditor (see Supreme Court Decision 2003Da6200, Jan. 27, 2004).

In the instant case, the Defendant is obligated to perform the registration of cancellation of the establishment of a mortgage of this case to Nonparty 1 following the cancellation of the establishment of a mortgage of this case. However, as seen earlier, the real estate of this case was subject to the voluntary auction procedure at the Daegu District Court Kimcheon-gu, 2007ta, 4805, and the registration of the establishment of a mortgage of this case was cancelled and the return of the original property was no longer possible. However, since the Plaintiff appeared on the date of distribution and raised an objection against the whole amount of the dividends to the Defendant, restitution following the cancellation of the aforementioned establishment of a mortgage contract against the Defendant should be made by means of correcting the distribution schedule to the extent that the Plaintiff did not obtain the satisfaction of the claim and distribute the amount to the Plaintiff. As such, the amount of dividends to the Defendant within the limit of the Plaintiff’s claim against Nonparty 1, the amount of dividends to the Defendant should be deleted,780,915 won, and the full amount of dividends to the Plaintiff should be corrected.

3. Conclusion

The plaintiff's claim of this case is justified and accepted.

【Omission of Real Estate List】

Judges Park Jong-woo