Plaintiff

Defendant 1 and one other (Attorney Lee Young-hee, Counsel for the defendant-appellant)

July 25, 2013

Daejeon District Court Decision 2012Gahap118 Decided November 14, 2012

1. The plaintiff's appeal is all dismissed.

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

Of the judgment of the court of first instance, the part against the Plaintiff is revoked. The part against the Plaintiff’s Defendants in the judgment is revoked. The each contract to establish a mortgage was revoked on June 22, 2011, which was concluded between Defendant 1, 2, and Nonparty 2 on the real estate listed in the separate sheet, and Defendant 1 appealed to Nonparty 2, Defendant 1, Defendant 2, Defendant 2, and Defendant 2, Defendant 2, who was not present at each of the above dates for pleading on June 22, 2011, which was completed on June 22, 2011 by receipt of No. 16489 for the registration of establishment of a neighboring mortgage (the Plaintiff is Defendant 1 and 2, as well as Defendant 1, Defendant 2, and Defendant 1, Defendant 1, the joint Defendant 1, who was present at each of the above dates for pleading and Defendant 1, the joint Defendant 2, who was present at each of the first instance court’s date for pleading after the appeal of the first instance court.

1. Basic facts

A. The Plaintiff’s monetary claim against Nonparty 2

The plaintiff filed a lawsuit against the non-party 2 against Cheongju District Court No. 98Gahap1006, 99Gahap406 (combined), and decided that "the non-party 2 shall pay to the plaintiff KRW 92,00,000 and KRW 23,00,00 among them, KRW 5% per annum from January 2, 1994 to September 17, 1999, and KRW 25% per annum from the next day to the date of full payment (hereinafter referred to as "the monetary claim of this case against the non-party 2"). The above decision became final and conclusive on October 16, 199 (hereinafter referred to as "the monetary claim of this case").

B. The disposition by Nonparty 2

1) On June 16, 201, Nonparty 2: (a) borrowed KRW 400 million from Defendant 1; (b) KRW 100 million from Defendant 2 on September 16, 201; and (c) agreed to provide real estate listed in the separate sheet (hereinafter “instant building”) and (iv) forest land of KRW 956 square meters and 23 square meters of forest land and 23 square meters of forest land as joint security at the time of public housing, which is the site for the instant building.

2) Accordingly, on June 20, 201, Nonparty 2 completed the registration of creation of a neighboring mortgage with the maximum debt amount of KRW 130 million on each of the above lands owned by Nonparty 3 as the receipt of public support by the Daejeon District Court on June 16, 2011, which was based on each of the collective security agreements rendered on June 16, 201, with Defendant 1 and the maximum debt amount of KRW 520 million as the registration of creation of a neighboring mortgage with Defendant 2 and the maximum debt amount of KRW 130 million, respectively.

3) In other words, Nonparty 2 completed the registration of ownership transfer under its name pursuant to Article 16488 of the same court’s receipt of the instant building on June 22, 201, and immediately completed the registration of ownership transfer pursuant to Article 1648 of the same court’s receipt of the joint collateral security right (hereinafter “instant joint collateral security right”) as well as the joint collateral of the instant building. Nonparty 2 completed each of the following: (a) under Article 16489 of the same court’s receipt of the same court on the ground of each additional contract (hereinafter “instant joint collateral contract”) as of June 22, 201, Defendant 1 and the maximum debt amount of which are KRW 520,000,000,000 for the establishment of a mortgage with Defendant 2 and the maximum debt amount of KRW 130,000,000,000 for the instant building (hereinafter “instant joint collateral

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-2, Gap evidence 3-1, 2, and 3-3, the purport of the whole pleadings

2. Summary of the cause of the claim;

The Plaintiff is a creditor who holds the instant judgment claim against Nonparty 2. Although Nonparty 2 bears the above obligation against the Plaintiff, Nonparty 2 concluded the instant mortgage contract on the instant building, which is the only property between the Defendants and the Defendants, and conducted a disposal act of completing the establishment registration of the instant mortgage in the future of the Defendants.

As such, the mortgage contract of this case constitutes a fraudulent act that causes damage to the plaintiff, who is the creditor by reducing the property of Nonparty 2’s liability, and thus, it should be revoked according to the Plaintiff’s obligee’s exercise of obligee’s right of revocation pursuant to Article 406 of the Civil Act. Accordingly, the Defendant is obligated to cancel the registration of establishment

3. Determination

A. Generally, the obligee’s right of revocation against the obligor’s fraudulent act refers to a claim for revocation and restitution by the obligee when the obligor has done a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. Therefore, it is natural natural that the obligee has the right of revocation, that is, the obligee’s right of revocation, should be protected by the obligee who is not aware of the act at the time of the obligor

B. In the instant case, comprehensively taking account of the overall purport of arguments as to the above evidence Nos. 1-2 and 12 and evidence Nos. 1-2, Nonparty 1, who had the claim for construction cost against Nonparty 2, was not paid the above construction cost by Nonparty 2 around October 1998, and Nonparty 4, who had been living together with Nonparty 4, were to transfer the above construction cost claim to Nonparty 4 in lieu of the repayment of monetary obligation equivalent to KRW 20 million, which was borne by Nonparty 4 at the time of the above request by the Seoul District Court. However, the Plaintiff was formally transferred the above claim for construction cost claim to Nonparty 1 in the name of Nonparty 4 in order to enable the Plaintiff to file a lawsuit on the claim for construction cost under the above evidence Nos. 1-2 and 12, and the Plaintiff was given a favorable judgment against Nonparty 2, as stated in the above judgment No. 1998, which became final and conclusive after the judgment No. 2009, supra. 29.

C. According to the above facts, the claim for the judgment of this case, which is the preserved claim of the obligee's right of revocation, was transferred to Nonparty 1 or Nonparty 4 for the purpose of bringing a lawsuit against Nonparty 2, even though the Plaintiff was not entitled to accept the above lawsuit, and was thus subject to the so-called litigation trust that brought a lawsuit against Nonparty 2 for the purpose of filing a claim for the takeover of the claim. The original lawsuit trust is null and void pursuant to Article 6 of the Trust Act, as it is a juristic act prohibited by the law. Furthermore, the Plaintiff, under the litigation trust, referring to the fact that Nonparty 2 had a claim for the takeover of the judgment of this case, which became the preserved claim of this case, by filing a lawsuit as if he had the claim for the preservation claim of this case against Nonparty 2, and was awarded a favorable judgment in the course of compulsory execution, but it cannot be accepted in light of the legal principles, but it was reasonable to have Nonparty 1 give false testimony in court and have Nonparty 1 be subject to criminal punishment for perjury, and it is not reasonable to exercise the Plaintiff's right of this case 2.

D. As to this, the Plaintiff asserted to the effect that it cannot be deemed a litigation trust since there is a claim against Nonparty 2 because it decided to repay to Nonparty 4 the monetary obligation of KRW 20 million against Nonparty 4 on behalf of Nonparty 1, and acquired the above claim for construction payment against Nonparty 1, Nonparty 2. However, in light of the facts acknowledged above, the time when the Plaintiff paid the above KRW 20 million to Nonparty 4, the time when the Plaintiff paid the above KRW 20 million, and the uncertainty of the name, etc., it is insufficient to recognize it solely on the basis of each of the evidence No. 11-1 through 5 and evidence No. 12, and no other evidence exists (the Plaintiff appears to have asserted the above claim as identical to the above criminal trial as to his suspicion of perjury, but all were not accepted).

E. Therefore, the exercise of the obligee’s right of revocation for the realization of the right to claim the instant judgment amount cannot be permitted in violation of social order and good faith without further review.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against it is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Cho Dong-dong (Presiding Judge)