(Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorney Han-soo et al., Counsel for the defendant-appellee)

November 3, 2011

Seoul Western District Court Decision 2010Kadan7969 Decided June 3, 2011

1. Revocation of the first instance judgment.

2. From among the lawsuits against Defendant 4 against the bankruptcy trustee, Defendant 1 and Defendant 6, 8, and 10 as well as the claims for cancellation of a promise to sell and purchase and restitution of real estate listed in the separate sheet, and the claims for cancellation of a contract to establish a mortgage and restitution of real estate listed in the separate sheet, and the claims against Defendant 2, Defendant 3, and Defendant 5, respectively.

3. The plaintiff's defendant 1 and the bankrupt's successor are dismissed, respectively, as to the remaining claims against the defendant 4, who is the bankruptcy trustee of comprehensive timber.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant 1 and Boan Co., Ltd. shall revoke a trade reservation signed on August 31, 2006 with respect to each real estate listed in the separate sheet between the general timber and the non-party 1 within the limit of KRW 94,455,354.

Boh Co., Ltd. shall revoke the mortgage contract concluded on August 31, 2006 with respect to each real estate listed in the separate sheet between comprehensive timber and Nonparty 1 within the limit of KRW 94,455,354.

Defendant 1, Defendant 2, Defendant 3, Defendant 5, and Boan Co., Ltd. shall be revoked within the limit of KRW 94,455,354, which was concluded on August 31, 2006 with respect to each real estate listed in the separate sheet between the general timber and Nonparty 1.

The defendants pay to each plaintiff 94,455,354 won with 5% interest per annum from the day following the day when the judgment of the court of first instance is finalized to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Plaintiff’s claim for reimbursement against Nonparty 1

1) On December 30, 2002, the Plaintiff entered into a credit guarantee agreement with quasi-construction Co., Ltd. (hereinafter “quasi-construction”) with the guaranteed principal as of December 19, 2003 (hereinafter “instant credit guarantee agreement”). Quasi-construction was granted a loan of KRW 500,00,000 from the Han Bank as collateral for a credit guarantee agreement received from the Plaintiff.

2) Nonparty 1, the representative director of quasi-construction, guaranteed all obligations under the credit guarantee agreement of this case, including the indemnity liability of quasi-construction, to the Plaintiff.

3) Quasi-construction caused a credit guarantee accident as of October 21, 2004, and the Plaintiff paid 429,680,820 won to Han Bank on February 25, 2005 pursuant to the instant credit guarantee agreement.

4) On November 21, 2006, the Plaintiff filed a claim for reimbursement, etc. under the credit guarantee agreement of this case against Nonparty 1 as Seoul Western District Court Decision 2006Da64880, and was rendered a favorable judgment in full with respect to the Plaintiff for KRW 305,225,519 and KRW 294,128,456 from February 25, 2005 to May 31, 2005, KRW 18% per annum from May 31, 2005, and KRW 15% per annum from June 1, 2005 to November 3, 2006, and KRW 20% per annum from the next day to November 3, 2006. The judgment became final and conclusive at that time.

5) The Plaintiff’s claim against Nonparty 1 for the foregoing judgment amounting to KRW 94,455,354 still remains after partial repayment.

B. Relation to each real estate listed in the separate sheet

1) As to the real estate indicated in the separate sheet No. 1 (hereinafter “real estate No. 1 of this case”), ① the establishment registration of a neighboring right under the name of the general wood (hereinafter “comprehensive timber”) on September 12, 2006 with the maximum debt amount of KRW 200 million, ② the establishment registration of a neighboring right under the name of the general timber (hereinafter “comprehensive timber”), ② the maximum debt amount of September 12, 2006 with KRW 20 billion, and the registration of a new mortgage establishment was made on August 31, 2006. ② The registration of the establishment of a new mortgage was made on September 20, 2006; ② the registration of the establishment of a new mortgage under the name of the general timber No. 20, Defendant 2, Defendant 3, and 5; ② the registration of the establishment of a new mortgage was made on September 31, 2006; ② the registration was made on September 26, 2006 due to the cancellation of the above provisional registration.

2) With respect to the second real estate indicated in the separate sheet No. 2 (hereinafter “the second real estate”) owned by Nonparty 1, ① the registration of establishment of a neighboring right in the name of comprehensive timber, the maximum debt amount of which was KRW 200 million on September 12, 2006, and caused a mortgage contract dated August 31, 2006, ② the registration of establishment of a neighboring right in the name of comprehensive timber, ② the maximum debt amount of which was KRW 20 billion on September 12, 2006, and was based on the mortgage contract dated August 31, 2006, ③ the registration of establishment of a mortgage in the name of comprehensive timber, ③ the registration of establishment of a provisional registration No. 208 on September 13, 2006, ② the registration of establishment of a new registration No. 207 on September 26, 2006, ④ some of the above provisional registration were made on September 26, 2006.

3) With respect to the third real estate listed in the separate sheet No. 3 (hereinafter referred to as the "third real estate of this case"), ① the establishment registration of a mortgage in the name of the general wood, which was based on the maximum debt amount on September 12, 2006 and caused the contract to establish a mortgage on August 31, 2006, ② the maximum debt amount on September 12, 2006 is 20 billion won, ② the establishment registration of a mortgage in the name of the above general timber, ② the establishment registration of a mortgage on August 31, 2006, which was based on the contract to establish a mortgage on August 31, 206, ③ the establishment registration in the name of the general timber of the above No. 208, the establishment registration was transferred on September 208, 2006, ③ the provisional registration was made on September 27, 2006, ④ the right to claim the transfer of shares in the name of the above general timber, ④ the provisional registration registration was made on September 16, 16.

4) With respect to the 4 real estate indicated in the separate sheet No. 1 owned by Nonparty 1 (hereinafter “the 4 real estate of this case”), ① the registration of establishment of a neighboring right in the name of comprehensive timber, which was the maximum debt amount of September 12, 2006, which was caused by the mortgage contract dated August 31, 2006, ② the registration of establishment of a neighboring right in the name of comprehensive timber, ② the maximum debt amount of September 12, 2006, which was KRW 20 billion, and was caused by the mortgage contract concluded on August 31, 2006, ② the registration of establishment of a mortgage in the name of comprehensive timber, ③ the registration of establishment of a mortgage in the name of the above general timber, ③ the registration of transfer of ownership based on the provisional registration No. 30, Sep. 13, 2006, ④ some of the above provisional registration was cancelled due to the registration No. 1655, Oct. 16, 2016.

5) With respect to the real estate indicated in the separate sheet No. 5 (hereinafter “real estate No. 5 of this case”), which is owned by Nonparty 1, ① the registration of establishment of a neighboring right in the name of comprehensive timber, which was the maximum debt amount of KRW 200 million on September 12, 2006, caused a contract to establish a mortgage on August 31, 2006, ② the maximum debt amount of KRW 20 billion on September 12, 2006, and was based on the contract to establish a mortgage on August 31, 2006, ② the registration of establishment of a mortgage in the name of general timber No. 1, 2, 3, 5, and 106, ③ the registration of establishment of a mortgage in the name of general timber No. 1, 2006, ③ the registration of establishment of a mortgage on September 13, 2006, ② the registration of establishment of a mortgage on some of the above provisional registration No. 1, 2016.

(6) With respect to the non-party 1's attached list No. 6 real estate (hereinafter "non-party 6 real estate of this case"), ① the registration of creation of a mortgage in the name of comprehensive timber, which was based on the contract on September 12, 2006 with the maximum debt amount of KRW 200 million, ② the registration of creation of a mortgage in the name of comprehensive timber, ② the maximum debt amount of KRW 20 billion on September 12, 2006, which was based on the contract on establishment of a mortgage as of August 31, 2006, ③ the registration of establishment of a mortgage in the name of comprehensive timber, ③ the registration of cancellation of ownership transfer in the name of the non-party 1's name, ③ the registration of cancellation of ownership transfer in the name of the non-party 1's name on September 13, 2006, ④ the registration of cancellation of ownership transfer due to the non-party 2's cancellation on September 16, 2006.

(7) With respect to the seven real estate indicated in the separate sheet No. 7 (hereinafter referred to as the "non-party 1's seven real estate"), ① the registration of establishment of a mortgage in the name of general wood as of September 12, 2006 with the maximum debt amount of 200 million won, ② the registration of establishment of a mortgage in the name of general wood as of September 12, 2006 with the maximum debt amount of 20 billion won, ② the registration of establishment of a mortgage in the name of the above non-party 1, 2, 3, 5, and 5, which were based on the contract to establish a mortgage as of August 31, 2006, ③ the registration of establishment of a mortgage in the name of general timber as of September 31, 2006, ③ the registration of establishment of a mortgage in the name of the above non-party 1, 207, were transferred to the non-party 2, 2016.

8) With respect to the 8 real estate indicated in the annexed list, which is owned by Nonparty 1 (hereinafter referred to as the “real estate of this case”), ① the registration of creation of a neighboring right in the name of comprehensive timber, which was created on September 12, 2006 with the maximum debt amount of KRW 200 million, ④ the registration of creation of a mortgage in the name of comprehensive timber, ② the maximum debt amount of KRW 20 billion on September 12, 2006 is KRW 20 billion, ③ the registration of establishment of a mortgage in the name of comprehensive timber, ③ the registration of establishment of a mortgage in the name of comprehensive timber, ③ the registration of cancellation on September 13, 2006, ② the registration of establishment of a mortgage in the name of Nonparty 2, which was made on September 31, 2006, ② the registration of cancellation on September 20, 2006, ② the registration of establishment of a mortgage in the above provisional registration was made on September 26, 2006.

9) With respect to the real estate indicated in the separate list No. 9 (hereinafter referred to as the "real estate No. 9 of this case"), (1) the maximum debt amount was KRW 200 million on September 12, 2006 and caused a mortgage contract on August 31, 2006, and (2) the maximum debt amount was KRW 20 billion on September 12, 2006, and was based on the mortgage contract on August 31, 2006, and (3) the provisional registration No. 1, 2, 3, 5, and 16 of the aforesaid provisional registration was cancelled on September 16, 206,

10) As to the 10 real estate indicated in the separate sheet No. 10 (hereinafter referred to as the "real estate No. 10 of this case"), ① the maximum debt amount of September 12, 2006 was KRW 200 million, and was caused by the mortgage contract dated August 31, 2006, ② the establishment registration of a neighboring right in the name of comprehensive timber was at least 20 billion, ② the maximum debt amount of September 12, 2006 was at KRW 20 billion, ③ the establishment registration of a mortgage contract in the name of the general timber was made on August 31, 2006; ② the establishment registration of a mortgage in the name of the general timber No. 1, 2, 3, 5, and 5 were made on the ground of the above provisional registration No. 306, Sep. 13, 2006; ② the establishment registration of a mortgage was made on the date of cancellation of the provisional registration No. 2, 2006.

11) As to the real estate indicated in the separate sheet No. 11 (hereinafter referred to as the "real estate of this case"), which is owned by Nonparty 1, ① the registration of establishment of a neighboring right in the name of comprehensive timber, ② the registration of establishment of a mortgage on September 12, 2006 with the maximum debt amount of KRW 200 million, ④ the registration of establishment of a mortgage on August 31, 2006 with the maximum debt amount of KRW 20 billion, ② the registration of establishment of a mortgage on September 12, 2006 with the maximum debt amount of KRW 20 billion, ③ the registration of establishment of a mortgage on August 31, 2006 under the title of comprehensive timber, ③ the registration of establishment of a mortgage on August 29, 208, ② the registration of establishment of a mortgage on August 20, 2008, ④ the registration of establishment of a mortgage on September 28, 2006, ④ the registration of establishment of a mortgage on August 19, 2008.

12) As to the real estate indicated in the separate sheet No. 12 as indicated in the non-party 1's list (hereinafter referred to as the "real estate of this case"), ① the maximum debt amount of September 12, 2006 is KRW 200 million, and was caused by the mortgage contract dated August 31, 2006, ② the registration of establishment of a neighboring right in the name of comprehensive timber with the maximum debt amount of KRW 20 billion, ② the registration of establishment of a mortgage on September 12, 2006 at KRW 20 billion, and the registration of establishment of a mortgage on August 31, 2006 at KRW 1, 2008, ② the registration of establishment of a mortgage on the title of comprehensive timber under the name of the non-party 1 was cancelled, ③ the registration of establishment of a mortgage on August 28, 201, ② the registration of establishment of a mortgage on the title of the above general timber was made on September 13, 2006.

13) As to the real estate indicated in the separate sheet No. 13 (hereinafter “real estate of this case”), which is owned by Nonparty 1, ① the registration of establishment of a mortgage on September 12, 2006 with the maximum debt amount of KRW 200 million, ② the registration of establishment of a mortgage on August 31, 2006 with the maximum debt amount of KRW 20 billion, ② the registration of establishment of a mortgage on September 12, 2006 with the maximum debt amount of KRW 20 billion, ③ the registration of establishment of a mortgage on August 31, 2006 under the provisional registration No. 1, 2, 3, 5, and 206 with the registration of establishment of a mortgage on August 26, 206; ② the registration of establishment of a mortgage on September 20, 2006 under the above provisional registration No. 96, which was made on August 31, 2006.

14) As to the real estate indicated in the separate sheet Nos. 14, 15, 16 (hereinafter “the instant real estate”) owned by Nonparty 1, the following: ① the registration of establishment of a collateral security contract in the name of the general timber, which was based on which the maximum debt amount was KRW 200 million on September 12, 2006, and which was based on the contract to establish a collateral security contract on August 31, 2006; ② the registration of establishment of a collateral security contract in the name of the above general timber, which was based on the provisional registration No. 20 billion won on September 12, 2006, with the maximum debt amount at KRW 20 billion on August 31, 2006; ② the registration of establishment of a collateral security contract in the name of the above general timber, ③ the registration of establishment of a collateral security company on September 31, 2006, ② the registration of establishment of a collateral security was made based on the provisional registration No. 2016. 9.28.

C. The first Defendant was declared bankrupt on November 23, 2010 in the proceeding of the first instance court, and accordingly Defendant 4 succeeded to the said proceeding (hereinafter “Defendant 4”) by the bankruptcy trustee (hereinafter “Defendant 4”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, 2-2 through 5, 6-1, 2, 7 evidence, 8-1 through 16, and the purport of the whole pleadings

2. The plaintiff's assertion

With respect to each of the instant real estate in excess of the debt by Nonparty 1, the sales promise made with Defendant 1 and Boan wood on August 31, 2006, and the mortgage contract made with Boan on August 31, 2006, and the mortgage contract made with Boan wood on August 31, 2006, and on August 31, 2006, all of the mortgage contract made with Defendant 1, Defendant 2, Defendant 3, Defendant 5, and Boan wood were fraudulent acts detrimental to the Plaintiff, who is the creditor of the non-party 1. However, since it is impossible to restore the original state following the transfer of provisional registration made on the ground of the above sales promise or the cancellation of the mortgage registration made on the ground of the above mortgage contract, the above sales promise and each of the mortgage contract shall be revoked to the above beneficiaries up to the limit of KRW 94,455,354, and compensation for delay equivalent to the amount of each of the above beneficiaries.

3. Determination

A. Determination on the cancellation of sales reservation and the claim for restitution to Defendant 1 and the trustee in bankruptcy

1) Claim concerning the 1, 8, and 10 real estate of this case

Defendant 1’s defenses that this part of the lawsuit is unlawful as it did not have a pre-sale agreement between Nonparty 1 and Defendant 1, and thus, Defendant 1’s defense prior to the merits and ex officio, are examined as to whether this part of the lawsuit against Defendant 1 was legitimate.

Even if a beneficiary who has performed a legal act with a debtor and a subsequent purchaser are eligible to be a defendant in a lawsuit seeking revocation of a fraudulent act, and the identity of a registered titleholder is unclear, and an illegal registration of correction has been completed in which the identity of a registered titleholder is not recognized as a result of acceptance of an application for registration of correction, if it has entered into the result of expressing the rights of the registered titleholder after correction and the registration conforms to the substantive relationship (Supreme Court Decision 95Da2135 delivered on April 12, 1996).

According to the above facts, on September 13, 2006, the registration of the right to claim the transfer of share in the title of general timber, which was concluded on September 13, 2006 with respect to the real estate Nos. 1, 8, and 10 of this case owned by Nonparty 1, as the reason of the promise to sell and purchase the title of this case on August 31, 2006, the registration of the right to claim the transfer of share in the title of general timber, which was made on September 13, 2006, was completed for the supplementary registration to rectify the holder of the right to the provisional registration to the general timber as the defendant 1 and Boeman on the ground of mistake, and on September 21, 2006, the provisional registration was completed for the real estate No. 1 of this case to Nonparty 2 in the case of the real estate No. 8 of this case to Nonparty 4 and Nonparty 5 in the case of the real estate of this case, and there were no additional registrations between the defendant 1 and the bankruptcy trustee in bankruptcy.

Therefore, the part of the Plaintiff’s lawsuit against Defendant 1 and the trustee in bankruptcy regarding the cancellation of sales reservation and restitution of real estate Nos. 1, 8, and 10 of the instant case is unlawful.

2) Claim as to the sixth real estate of this case

As Defendant 1 had already cancelled a pre-sale agreement entered into with Nonparty 1 on the instant 6 real estate and cancelled its registration, Defendant 1’s defense that this part of the lawsuit is unlawful. Thus, Defendant 1’s defense prior to and ex officio examined whether this part of the lawsuit against Defendant 1 was legitimate.

In a case where a creditor filed a lawsuit against a beneficiary seeking cancellation or restitution of a fraudulent act on the ground of a debtor's fraudulent act, and during the course of the lawsuit, the said fraudulent act was rescinded or terminated and the creditor returns to the debtor by punishing the property for which return was sought by the revocation of such fraudulent act, barring special circumstances, the creditor's revocation lawsuit has already been realized and the benefit of protecting rights is no longer lost by such lawsuit (see Supreme Court Decision 2007Da85157, Mar. 27, 2008, etc.).

According to the above facts, the provisional registration of the right to claim the transfer of shares was completed on August 31, 2006 between Nonparty 1, Defendant 1, and Defendant 1 as to the instant 6 real estate in accordance with the trade reservation concluded on August 31, 2006, but the said trade reservation was cancelled on September 26, 2006 and the provisional registration was cancelled on October 4, 2006, so there is no benefit of action to seek the cancellation of the said trade reservation and reinstatement.

Therefore, the part of the Plaintiff’s lawsuit against Defendant 1 and the trustee in bankruptcy regarding the revocation of the purchase and sale reservation and the claim for restitution of the real estate of this case is unlawful.

3) Claim concerning the 2 to 5, 7, 9, 11 to 16 of this case

The additional registration based on the transfer of provisional registration is merely stipulated in the register in the succession relation to the right based on the existing provisional registration. Therefore, in the event that provisional registration is invalidated as a result of such registration, not by the new right, the claim for cancellation of provisional registration is sufficient against the assignee, and in light of the legal principles that there is no defendant qualification in the claim for cancellation registration, the provisional registration has been completed based on fraudulent act. After the additional registration of transfer of right based on the provisional registration has been completed, in a case where the principal registration based on the provisional registration has been completed after the provisional registration has been completed, it cannot be deemed that the transferor of right based on the provisional registration cannot be the other party to the claim for cancellation of provisional registration, and that the transferor of right based on the provisional registration, not the principal registration holder, bears the obligation to compensate for value to the creditor (see Supreme Court Decision 2004Da

According to the above facts, with respect to the real estate of this case 2 through 5, 7, 9, 11 through 16, the provisional registration of the right to claim transfer was completed on August 31, 2006 between the non-party 1, the non-party 1, and the non-party 1, and the non-party 1, the non-party 1, and the non-party 1, and the non-party 1, the non-party 1, the non-party 1, after the provisional registration of the right to claim transfer of ownership was completed on August 31, 206, and the transferee of the above provisional registration finally completed the principal registration based on the provisional registration. The plaintiff's assertion that the non-party 1, the non-party 1, and the non-party 1, the non-party 1, and the non-party 1, the non-party 1, the non-party 1, and the non-party 1, the non-party 1, the title holder of the title of the registration.

B. Determination on cancellation of mortgage contract and claim for restitution against the Defendants

ex officio, this part of the lawsuit is examined.

According to the above facts, as to each real estate of this case, ① the registration of creation of a mortgage was completed on September 12, 2006 between Nonparty 1 and the general timber of Boan on August 31, 2006 pursuant to the contract for establishing a mortgage which was concluded on September 2, 2006 between the maximum debt amount of 200 million won and ② the general timber of Nonparty 1 and Defendant 1, Defendant 2, Defendant 3, Defendant 5, and Boan shall be completed on August 31, 2006 pursuant to the contract for establishing a mortgage which was concluded on August 31, 2006, pursuant to the contract for establishing a mortgage which was concluded on September 12, 2006, each of the above contracts for establishing a mortgage was completed before the lawsuit of this case was abandoned or terminated, and thus, the registration of establishment of a mortgage was cancelled accordingly, the plaintiff did not have the interest to seek cancellation of each of the above contracts

Therefore, the part of the plaintiff's lawsuit against the defendant 1 and the trustee in bankruptcy concerning the cancellation of the contract to establish a right to collateral security and the claim for restitution of the original state, and the lawsuit against the defendant 2, 3 and 5 is unlawful.

4. Conclusion

Since the plaintiff's lawsuit against the defendant 1 and the bankruptcy trustee against the plaintiff 1, 6, 8, and 10 of this case is unlawful as the cancellation of reservation and the claim for restitution of real estate of this case, and the part of the plaintiff's claim for restitution of the right to collateral security contract and the claim for restitution of the original right to each of the real estate of this case, and the lawsuit against the defendant 2, 3, and 5 are dismissed. The plaintiff's remaining claims against the defendant 1 and the bankruptcy trustee are dismissed as it is without merit. The judgment of the court of first instance is unfair as it is so revoked

[Attachment List omitted]

Judges Seo-Gyeong (Presiding Judge)