Industrial Bank of Korea (Law Firm Solar, Attorneys Sung Chang-chul et al., Counsel for defendant-appellant)

Ethiopia Co., Ltd. and two others

June 14, 2011

1. The Plaintiff:

A. 90,041,335 won and, among them, 90,041,335 won;

(1) As regards KRW 78,64,969, 18.89% per annum from March 1, 2010 to February 25, 2011; and 20% per annum from the following day to the date of full payment;

(2) As regards KRW 9,00,000, 15.93% per annum from March 1, 2010 to February 25, 2011; and 20% per annum from the following day to the date of full payment;

(3) As regards KRW 2,396,366, 28% per annum from March 23, 2010 to the date of full payment.

each proportion of money shall be paid;

B. Defendant 2 (Non-Party of the Supreme Court Decision) is jointly and severally with Defendant Liberia Co., Ltd.;

(1) to the extent of KRW 120,000,000; and

(2) the money set forth in subsection (a)(2) above within the scope of KRW 10,800,000;

(3) The money set forth in paragraph (3) above

sub-payment.

2. The gift agreement concluded on March 5, 2010 between Defendant 2 and Defendant 3 (the Supreme Court and the Defendant in the appellate trial) with respect to one-half share of Defendant 2-2 among the real estate listed in the attached Table shall be revoked within the limit of KRW 29,851,094.

3. Defendant 3 shall pay to the Plaintiff 29,851,093 won with 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

4. The plaintiff's remaining claims against the defendant 3 are dismissed.

5. Of the costs of lawsuit, the part arising between the Plaintiff, the Defendant, and Defendant 2 shall be borne by the Defendants, and the part arising between the Plaintiff and Defendant 3 shall be borne by the Plaintiff 10%, and by the said Defendant 90%, respectively.

6. Paragraph 1 can be provisionally executed.

Defendant Liberia Co., Ltd. and Defendant 2: It is so decided as per Disposition No. 1.

Defendant 3: Revocation of the donation agreement concluded on March 5, 2010 with respect to the portion of Defendant 2-2 among the real estate listed in the separate sheet between Defendant 2 and Defendant 3; and Defendant 3 shall pay to the Plaintiff 29,851,093 won and the amount calculated at the rate of 5% per annum from the date this decision became final to the date of full payment.

1. Facts of recognition;

A. The Plaintiff agreed to set interest, compensation for delay, etc. as prescribed by the basic terms and conditions of bank credit transactions between Defendant Lysia Co., Ltd. (hereinafter “Defendant Company”), and concluded a credit transaction agreement with Defendant Lysia Co., Ltd. (hereinafter “the first agreement”) on May 20, 2008 as follows: ① amount of credit (limit) 100,000 won per annum, interest rate of 8.9% per annum (it is not fixed interest rate, and thus changes from time to time on the expiration date of the credit), May 20, 2009 (which is extended on May 20, 2010) (hereinafter “the first agreement”); ② amount of credit limit of 60,000 won on Oct. 7, 2008, interest rate of 8.76% per annum (which shall not be changed within the expiration date of the fixed interest rate of 100,000 won); and Defendant Co. 13, 2009.

B. According to Article 7 of the General Terms and Conditions for Credit Transactions applicable between the Plaintiff, Defendant Company, and Defendant 2, when the delayed recovery of interest, etc. reaches four times through the period prior to the pertinent obligation, the obligation would naturally lose the benefit of time, even if there was no demand or notification from the obligor’s bank, and the obligor would naturally lose the benefit of time due to the pertinent obligation, but the obligor would lose the benefit of time due to the lapse of three business days from the date on which notice was received, such as the loss of the benefit of time by the bank.

C. From April 1, 2010 with respect to the First and Second Agreements, from March 23, 2010 to March 23, 2010 with respect to the Third Agreement, the Defendant Company lost the benefit of the time limit on May 13, 2010. The rate of delay damages as of March 1, 2010 is 18.89% per annum of the Second Agreement, 15.93% per annum of the Second Agreement, and 28% per annum of the Third Agreement.

D. The Defendant Company’s obligation under the first agreement to be repaid to the Plaintiff is the principal amounting to KRW 78,644,969 and interest, etc. thereon from March 1, 2010. The obligation under the second agreement is KRW 9 million and interest, etc. thereon from March 1, 2010. The obligation under the second agreement is KRW 2,396,366 and interest, etc. thereon, and the obligation under the third agreement is KRW 2,396,366 and interest, etc. from March 23, 2010. Each of the above principal amounts to KRW 90,041,335 (78,644,969 + KRW 9 million + KRW 2,396,366).

E. Meanwhile, on March 5, 2010, Defendant 2 entered into a donation contract (hereinafter “instant donation contract”) with Defendant 3 on one-half of one-half of the real estate listed in the separate sheet (hereinafter “instant real estate”). Based on this, Defendant 2 completed the ownership transfer registration under Defendant 3’s name (hereinafter “instant transfer registration”) on March 16, 201 as the Seoul Western District Court’s receipt No. 13764 on March 16, 2010. At that time, Defendant 2 had already been insolvent.

[Ground of Recognition: Each entry in Gap evidence Nos. 1 through 6 (including branch numbers in case of additional number), the purport of the whole pleadings, the fact that there is no dispute between the plaintiff and defendant Nos. 3, the entry in Gap evidence Nos. 7 and 8, the head of Eunpyeong-gu of this court, the results of fact inquiry into the Mayor of Seoul Special Metropolitan City, and the purport of the whole pleadings]

2. Determination as to the claim against the defendant company and the defendant 2

A. According to the above facts of recognition, the Plaintiff:

(1) The defendant company, as the principal debtor, is the above 90,041,335 Won and its weight

With respect to KRW 78,64,969 (the principal of the obligation under the Agreement) from March 1, 2010 to February 25, 2011, as the Plaintiff seeks, 18.89% per annum, the rate of which is 18.89% per annum, which is the date of final delivery of the copy of the complaint of this case from March 1, 201 to February 25, 201, 200% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment, and 9 million won (the principal of the obligation under the Agreement) shall be 15.93% per annum, the rate of which is 15.93% per annum from March 1, 201 to February 25, 2011; and 20% per annum,2,396,366 won per annum from the next day to the date of full payment (the principal of the obligation under the Agreement).

(2) Defendant 2, a joint and several surety, is jointly and severally with the defendant company, and as to the above KRW 78,64,969 (the debt principal under the agreement) and the debt principal under the agreement from March 1, 2010 to February 25, 2011, the above annual rate of KRW 18.89%, and the above annual rate of KRW 20% from the next day to the date of full payment, and KRW 10,800,000 (the debt principal under the agreement of Section 2) and the above annual rate of KRW 15.93% from March 1, 201 to February 25, 2011, and KRW 20% from the next day to the date of full payment to February 28, 2013 as to the above annual rate of KRW 20,396,366 (the debt principal under the agreement) and delay damages from the date of full payment.

B. Therefore, the Plaintiff’s assertion against the Defendant Company and Defendant 2 is with merit.

3. Determination as to the claim against Defendant 3

A. The plaintiff's ground for claim

The plaintiff asserts that the gift contract of this case was cancelled as a fraudulent act, and as compensation for its value, Defendant 3 is obligated to pay to the plaintiff 29,851,093 won and damages for delay calculated at the rate of 5% per annum from the date this judgment became final to the date of full payment.

B. Determination

(1) The existence of preserved claims

According to the above facts, according to the agreement between the plaintiff and the defendant 2 pursuant to the above 1, 2, and 3, the plaintiff is deemed to have a claim as set forth in the above 2. A. (2). Since such claim had already occurred at the time of entering into the gift contract of this case between the defendant 2 and the defendant 3, the plaintiff is a preserved claim.

However, with respect to the amount of the preserved claim, the obligee may exercise the obligee’s right of revocation within the scope of the amount calculated by adding interest or delay damages to his principal of the claim after the fraudulent act and the end of the arguments in fact-finding proceedings. However, the obligee cannot exercise the right of revocation in excess of the amount of the claim (see Supreme Court Decision 2000Da66416, Sept. 4, 2001, etc.). Thus, instead of the claim as stated in Article 2. A. (2) of the above, the damages for delay, “by June 14, 201, which is the date of the arguments in this case,” shall be included in the amount of the preserved claim.

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

As seen earlier, Defendant 2’s conclusion of the instant donation agreement with Defendant 3 as to one-half of the sole property out of the instant real estate by Defendant 2, as it was in an insolvent state of excess of the obligation at the time of the instant donation agreement, constitutes a fraudulent act detrimental to the Plaintiff, a creditor, barring any special circumstance.

Furthermore, Defendant 2 is presumed to have been fully aware of the fact that the above contract was at the time of the gift contract of this case that the plaintiff would harm the plaintiff, who is the creditor, and so, Defendant 2 had an intention of deception, and Defendant 3's bad faith, who is the beneficiary, is presumed to have been presumed to have been aware of the intention of deception.

(3) Determination as to Defendant 3’s assertion

(A) The argument

Defendant 3 asserted to the purport that, on April 2, 2010, Defendant 2’s maturity of the secured loan to Korea Exchange Bank, Defendant 2 had been jointly and severally guaranteed as to Defendant 2’s above obligation. Defendant 2’s wife, around March 15, 2010, at the end, Defendant 2, the representative director of the Defendant Company, made efforts to pay the above loan to Defendant 2 for the purpose of raising funds because the financial condition of the Defendant Company was extremely difficult, Defendant 2, the representative director of the company, was given a donation of one half of the ownership of the instant real estate to Defendant 3, and Defendant 3 received the secured loan from the National Agricultural Cooperative Federation and repaid the previous loan to Korea Exchange Bank. At that time, Defendant 3 was aware of the fact that Defendant 3 was not in good financial condition of the Defendant Company, and there was no general creditor’s knowledge that there was no intention to harm the general creditor including the Plaintiff.

(B) Determination

The so-called obligor’s bad faith, that is, the subjective requirement of the obligee’s right of revocation, that the obligor is aware that the obligor would not prejudice the obligee, is unable to fully satisfy the obligee’s claims by means of the obligor’s act of disposal of the obligor’s property reduction, or by the obligor’s lack of joint security or by the lack of one story, not by means of intent or intent, but by means of simple recognition. Such recognition does not require a recognition that is sufficient in relation to the obligee and that it would prejudice a specific obligee (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2007Da63102, Mar. 26, 2009).

In the instant case, according to the health stand, Eul evidence Nos. 1, 2, 3, and Gap evidence No. 7, and the purport of the whole pleadings, defendant 2 and defendant 3 were to have completed the registration of ownership transfer under their respective names as to one half of the instant real estate on April 2, 2003. The establishment registration was completed on April 2, 2003 with regard to the instant real estate at KRW 130 million (hereinafter referred to as "the first establishment registration"), since it was difficult for defendant 3 to obtain the ownership of the entire share of the instant real estate from the National Agricultural Cooperative Federation on the grounds of the instant donation contract, and it was hard to acknowledge that the above establishment registration was completed on March 26, 2010, with the knowledge of the fact that the above establishment registration was completed by the defendant 300,000 won, and it was difficult to recognize that the above establishment registration was completed by the defendant 100,000 won and the principal of the instant real estate was revoked on March 26, 201010,09.

(4) Method and scope of restitution

As seen earlier, since the first collateral mortgage was established regarding the real estate in this case, and the amount of KRW 90,297,813 of the secured debt in this case was repaid after the donation contract in this case, which is a fraudulent act, and the establishment registration of the first collateral was cancelled, the fraudulent act cancellation shall be done by the method of compensation for the value. The scope of restitution following the fraudulent act cancellation shall be calculated by deducting 1/2 of the secured debt in this case from the value as of the closing date of argument of 1/2 of the real estate in this case (i.e., it is reasonable to view that the amount of the secured debt in this case, which is borne by 1/2 of the real estate in this case, is a share of KRW 94,500,000,000,000,000 won x KRW 945,000,000,0000,000 won x KRW 984,000,000,000,000 won.)

(5) Sub-decisions

Therefore, the gift contract of this case is revoked within the above 29,851,094 won as a fraudulent act, and the defendant as compensation for value of 29,851,094 won, calculated at the rate of 29,851,093 won and 5% per annum under the Civil Act from the day after the day when the judgment became final and conclusive to the day when full payment is made (the plaintiff claimed damages for delay at the rate of 5% per annum under the Civil Act even on the day when this judgment becomes final and conclusive, but since the obligation to compensate for damages arises only when the judgment ordering revocation of the fraudulent act becomes final and conclusive, the obligation to compensate for delay will be held liable for the delay of payment from the day after the judgment becomes final and conclusive, and therefore this part of the claim

4. Conclusion

Therefore, the plaintiff's claim against the defendant company and the defendant 2 is accepted on the grounds of all the claims, and the claims against the defendant 3 are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

[Attachment]

Judge Credit Guarantee