[1] In a case where an obligor, who is in a situation where it is difficult to continue to operate a business due to financial difficulties, is the best way to have the ability to repay debts by financing funds, and it is inevitable to deem that the obligor’s security right or trust act constitutes a fraudulent act in a case where real estate is provided as security to a certain obligee or where new

[2] In determining the debtor's intent to commit a fraudulent act, the circumstances leading to the assertion of the fraudulent act, and whether the debtor's efforts to repay after the fraudulent act can be considered (affirmative)

[3] The case holding that the court below's order that held that the above trust contract constitutes a fraudulent act is erroneous in the misapprehension of legal principle in a case where Gap corporation concluded a trust contract for financing funds from financial institutions while purchasing a business site and promoting the new construction and sale of a set of funds

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Article 406 (1) of the Civil Act

[1] Supreme Court Decision 200Da50015 Decided May 8, 2001 (Gong2001Ha, 1340), Supreme Court Decision 2001Da57884 Decided December 12, 2003 (Gong2004Sang, 110) / [2] Supreme Court Decision 99Da31940 Decided December 8, 2000 (Gong2001Sang, 236) Supreme Court Decision 2001Da57884 Decided December 12, 203 (Gong2004Sang, 110)

Plaintiff (Law Firm Han, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Korea Land Trust Co., Ltd. (Law Firm Han & Yang LLC, Attorneys No Young-chul et al., Counsel for the plaintiff-appellant)

Suwon District Court Order 2010Kahap241 dated December 6, 2010

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. An obligor’s act of offering real estate in excess of his/her obligation as a claim security to any of the creditors constitutes a fraudulent act in relation to other creditors, barring any special circumstances. However, barring any special circumstance, considering that the obligor’s continuous implementation of business by financing funds in a situation in which it is difficult to proceed with the business due to the financial crisis is the best way to exercise the ability to repay obligations, and if it is inevitable to provide certain creditors with real estate as security or trust and obtain additional financing from them, barring any special circumstance, an obligor’s act of creation of security right or trust does not constitute a fraudulent act (see, e.g., Supreme Court Decisions 200Da5015, May 8, 2001; 2001Da57884, Dec. 12, 2003). In determining the obligor’s intent to harm, it should be based on the circumstances at the time of the fraudulent act; however, the obligor’s efforts to assert it as a fraudulent act; and the obligor’s intent to pay new funds should be considered.

2. According to the record, the non-applicant company could expect repayment of financed funds and recovery of repayment capacity to the general creditor by selling the instant land with the prior consent of the debtor after the completion of the set of the set of the trust contract. If the set of this case, which would be completed at the time of the conclusion of the first trust contract, added the object of the secured trust or was not premised on the premise that the set of this case would be added to the object of the secured trust or to substitute the object of the previous trust, it was impossible to continue new construction of the set of funds through the same financing method from the beginning, and the non-applicant company could continue to obtain new construction of the building of this case without being able to know the fact that the new construction of the building of this case would not have been possible after the conclusion of the trust contract of this case after the execution of the trust contract of this case.

Therefore, it is not reasonable to judge the fraudulent act by comparing the two trust contracts of this case with the position of general creditors immediately before and after the process of the entire acquisition, since the title of this case can be deemed to have been made by the non-applicant company with the funds financed by the above series of trust contracts and the above series of trust contracts. Nevertheless, the court below did not consider the relationship between the two parties, the process of loans made continuously before and after them, and the continuation of business through this, without considering the fact that the two trust contracts of this case are separate contracts from the one of the trust contracts of this case. Thus, the court below determined that the two trust contracts of this case constitute the fraudulent act merely on the ground that the non-applicant company concluded the two trust contracts of this case with the debtor with respect to the real estate only under the circumstance that the non-applicant company bears the obligation to pay the agreed amount to creditors, and completed the registration of this case, which affected the conclusion by misapprehending the legal principles as to the fraudulent act. The ground for re-appeal pointing this out has merit.

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)