Korea Technology Finance Corporation (Law Firm Rotex, Attorneys Han Han-tae, Counsel for defendant-appellant)

Defendant (Attorney Kim Jong-chul, Counsel for the defendant-appellant)

April 13, 2007

Suwon District Court Decision 2006Gadan49334 Decided October 26, 2006

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. Of the distribution schedule prepared by the said court on May 10, 2006 with respect to the compulsory auction of real estate at Suwon District Court Decision 2004Ma80181, 2005 Matagi47846 (Dual), the amount of 206,025,521 won against the defendant shall be KRW 109,025,521 won, and the amount of dividends to the plaintiff shall be KRW 89,52,717 won shall be corrected to KRW 186,52,717, respectively.

1. Basic facts

A. Conduct of auction procedures with respect to each of the instant real estates

(1) The Plaintiff filed an application for a compulsory auction with respect to each of the instant real estates listed in the separate sheet owned by the Suwon District Court (Seoul District Court 2003Kahap90040, the title of the judgment with executory power over the claim amount case, No. 2004Gata801, Gains (hereinafter “each of the instant real estates”). Accordingly, on January 10, 2005, the said court decided to commence the auction on each of the instant real estates on January 10, 2005.

(2) Meanwhile, the National Agricultural Cooperative Federation, holding the right to collateral security on the instant real estate Nos. 1, 2, 3, and 4, filed an application for voluntary auction on the said real estate at the above court No. 2005ta, 47846, and the above court rendered a duplicate decision to commence auction on August 26, 2005 with regard to each of the above real estate.

(3) The auction procedure with respect to each of the instant real estate was consolidated into the above court Nos. 2004ta-do80181, 2005 Ta-do 47846 (Duals), and each of the instant real estate was sold to the non-party corporation on February 15, 2006.

B. The plaintiff's fraudulent act revocation lawsuit against the defendant and the demand for distribution by the defendant

(1) Meanwhile, on March 10, 2004, the Plaintiff and the Defendant respectively owned a monetary claim against the Pacific Co., Ltd. Co., Ltd. (hereinafter “Stcccccccccccccccccccccccccccccccccirirs”). On the other hand, on March 10, 2004, on the part of the mechanical sales claims it owns against the tecitcirs, the amount equivalent to KRW 520,000 (excluding value-added tax) was transferred to the Defendant (hereinafter “transfer of claims as of March 10, 204”), and notified the teccitus.

(2) The Defendant, upon receipt of the above assignment of the claim, filed a lawsuit claiming the transfer of claim against the third debtor, the Seoul Southern District Court 2004Kahap14353, and on December 1, 2004, with respect to the above case, the said case was prepared a mediation statement containing the following contents (hereinafter “mediation statement”) on December 1, 2004: “Isssium shall pay to the Defendant KRW 8 million each day from February 1, 2005 to December 1 of the same year, and shall pay KRW 70 million each December 31 of the same year. A notary public between the Defendant and the Tsium shall be deemed to lose the validity of the deed of promissorysory notes No. 6964, Dec. 1, 2004.”

(3) However, on March 10, 2004, the Plaintiff filed a lawsuit for revocation of the fraudulent act against the Defendant on March 31, 2005 against the Seoul Central District Court 2005Gahap27329, and filed a lawsuit for revocation of the fraudulent act against the Defendant on October 11, 2005, and on March 10, 2004, against the above court for "347,940,836 won of the assignment of claims as of March 10, 2004 and 344,142,168 won from March 18, 2004 to June 17, 2004, the judgment was revoked within the scope of 14% per annum from the next day to the date of June 17, 2004 to the date of September 27, 2005 (the above judgment of the Defendant was revoked within the scope of 154,550 won per annum, and the above judgment was revoked within the extent of 1450.5 billion won.

(4) Meanwhile, on April 26, 2005, the Defendant reported the claim amounting to KRW 700,000,000 for principal and delayed damages and KRW 24,000,000 for delay damages based on the original copy of the conciliation protocol as of December 1, 2004 to the Suwon District Court, which is the cause of the auction law of each of the instant real estate, and demanded the distribution thereof. On April 20, 2006, the Defendant demanded the distribution for the total of KRW 780,00,000,000 for delayed damages.

(c) Preparation of distribution schedule and objection to the distribution;

(1) On May 10, 2006, the Suwon District Court prepared a distribution schedule stating that the amount to be distributed on May 10, 2006, from 794,539,384 won (791,247,000 won for each real estate of this case + sales amount of KRW 3,292,384 + the amount to be actually distributed after deducting KRW 7,713,840 for execution costs, 786,825,544, which is 26.42% of the amount of credit to the Plaintiff who is the applicant creditor, the applicant creditor, among the amount to be distributed KRW 786,825,544, which is 89,52,717 ( KRW 89,230,314 + KRW 322,403, which is 26.41% of the amount to be distributed.

(2) The Plaintiff appeared on the date of distribution of the said auction case, and raised an objection against the amount of KRW 97,00,000 out of the said dividend amount against the Defendant, and thereafter filed a lawsuit of demurrer against the distribution within seven days thereafter.

[Reasons for Recognition: Each entry, as a whole, and the purport of the whole oral proceedings under Gap 1-1 through 1-5, 2, 3, 4-1, 4-2, 4-3, 6-1 through 6-3, 7-1, and 7-2]

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The defendant's claim in the auction court is due to the transfer of claim as of March 10, 2004 by the Sejong Coina Corporation's transfer of claim as of March 10, 2004. As to the transfer of claim as of March 10, 2004, the plaintiff filed a fraudulent act revocation lawsuit against the defendant, and the judgment that revoked it within the scope of KRW 430,534,955, the defendant lost his status as the transferee of the claim within the extent of KRW 430,534,955.

Therefore, 113,719,472 won (the dividend amount to the defendant 206,028,521 won x the credit transfer amount revoked by fraudulent act ± 430,534,955 won ± the amount of the defendant's demand for distribution ± 780,000,000 won which the plaintiff raised an objection against the defendant) out of the amount of dividends against the defendant within the scope of 97,00,000 won which the plaintiff raised an objection against the defendant and the plaintiff should be distributed to the plaintiff.

(b) Markets:

(1) In a case where a creditor files a lawsuit seeking the revocation of a fraudulent act with the revocation of a fraudulent act by the beneficiary, the effect of the revocation is limited to the relationship between the creditor and the beneficiary. Thus, even if a beneficiary bears the duty of restitution due to the revocation of a fraudulent act, it is merely the legal effect arising from the relationship between the creditor and the beneficiary, and the legal relationship arising from the revocation is not formed between the debtor and the debtor, but it is not the restoration to the debtor's responsible property retroactively (see Supreme Court Decision 2004Da23110, Aug. 24, 2006, etc.).

In addition, a revocation of a fraudulent act is a system to cancel it at the creditor's request where the debtor's property offered to the joint collateral of general creditors is reduced to his/her disposal act for the purpose of preserving the claim, and restores the separated property to the debtor's responsible property. Since the revocation of a fraudulent act and restitution to the original state is effective for all creditors' interests (Article 407 of the Civil Code), the revocation of the fraudulent act and restitution to the original state is not having priority over the property that the revoked creditor has recovered, and the creditors against the debtor can realize the contents of the claim in accordance with the general principles on the satisfaction of the claim (see Supreme Court Decision 2005Da14595 delivered on August 25, 2005).

(2) In the auction case on each of the instant real properties owned by the tegrasium, the Plaintiff raised an objection against the distribution claim of the Defendant as the creditor of the tegrasium, not as the creditor of the tegrasium, but as the creditor of the tegrasium, as the creditor of the tegrasium. However, as a result of egrasing, it is only limited to the fact that the Plaintiff has the status as the creditor of the tegrasium, the debtor of the revocation lawsuit, and thus, the Plaintiff cannot assert the validity of revocation of the said fraudulent act in the lawsuit of demurrer against distribution filed in the position of the creditor of

If the Plaintiff, as a creditor of the Scuashion, concurrently holds the status as a creditor of the Scuashion and the status as a creditor of the Scuashion, the effect of revocation of the assignment of claims arising relatively between the Defendant and the beneficiary, and if it is possible to assert the claim in the lawsuit of demurrer against the distribution in this case, in which the garnishee is the execution debtor, who is the third debtor, in the position of the creditor of the Scuashion, the other creditors of the Scuashion cannot enjoy the effect of revocation of the fraudulent act, unless they are not the creditors of Scuashion, and it is unreasonable to satisfy their claims against Scuashion, not only by the exercise of the creditor's right of revocation that should take effect for all creditors of Scuashion, but also by the exercise of the creditor's right of revocation that should take effect for all creditors of Scuash et al.

(3) In addition, even if it is possible for the Plaintiff to assert the validity of revocation of fraudulent act against the Defendant in the process of raising an objection to the instant distribution, the revocation of the assignment of claims does not deny the validity of the transferred claim itself, but merely deny the validity of the transfer of claims. Thus, even if the assignment of claims is revoked by a fraudulent act revocation lawsuit, its validity is limited to that between the Plaintiff and the Defendant, who is the revoked creditor, and thus, it is necessary to give notice of revocation of the assignment of claims to the Defendant, who is the beneficiary, in relation to the third debtor, as the assignee of claims, in order to deny the status as the assignee of claims.

In addition, in the event that the assignment of a claim is invalidated or cancelled, the actual transferee of the claim is the quasi-Possessor of the claim. Thus, until the Rotterdam, which is the garnishee, receives the notification of the above cancellation from the defendant, the repayment to the defendant of the said Rotterdam shall be a valid repayment, barring any special circumstances.

However, by the time of the closing of the party hearing, there is no evidence to prove that the defendant notified the revocation of the assignment of the assignment to the chemical clinic, the garnishee, or that the plaintiff sent or presented the final judgment of the Seoul Central District Court 2005Kahap27329 that ordered the revocation of the assignment of the assignment to the chemical clinic to the chemical clinic, the third obligor, or that there is no evidence to prove that the plaintiff sent or presented to the chemical clinic the final judgment of the Seoul Central District Court 2005Kahap27329 that ordered the revocation of the assignment of assignment

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it appears to be one mother or there is no ground. The judgment of the court of first instance is just and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Omission of List of Real Estate]

Judges Lee Jong-ok (Presiding Judge)