2017Na20594 Revocation of Fraudulent Act

Credit Guarantee Fund

Seoul

Daegu Place of Service

The representative chief secretary and the vice chief secretary;

Law Firm Sejong, Attorney Park Jong-il, Counsel for defendant

Attorney Choi Bo-sik, and Yang Soo-heon

A

Daegu

Attorney Lee Han-hee, Counsel for the defendant-appellant

Daegu District Court Decision 2014Gahap206468 Decided December 22, 2016

December 20, 2017

January 24, 2018

1. The part concerning the conjunctive claim in the judgment of the first instance shall be revoked;

2. The plaintiff's conjunctive claim shall be dismissed.

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

1. Purport of claim

A. The primary purport of the claim is to cancel the sales contract concluded on April 30, 2014 between the Defendant and B with respect to the share of 4/10 of each of the real estate listed in the separate sheet, and the Defendant will implement the procedure for registration of cancellation of ownership transfer, which was completed as of June 12, 2014 by the Daegu District Court No. 76323, Jun. 12, 2014.

B. Preliminary claim: As to the share of 4/10 of each real estate listed in the separate sheet, the sales contract concluded on April 30, 2014 between the Defendant and B shall be revoked within the limit of KRW 736,989,376. The Defendant shall pay to the Plaintiff money calculated by the rate of KRW 736,989,376 and the rate of KRW 5% per annum from the day following the date this judgment becomes final and conclusive.

2. Purport of appeal;

The part concerning the conjunctive claim for the judgment of the first instance shall be revoked, and the plaintiff's conjunctive claim shall be dismissed;

The preliminary claim for the judgment of the first instance court is amended as stated in the preliminary claim(the original appeal extended the previous preliminary claim by filing an incidental appeal).

1. Scope of adjudication of this court;

In filing the instant lawsuit, the Plaintiff sought the cancellation of the sales contract concluded between the Defendant and B on April 30, 2014 (hereinafter “instant sales contract”) with respect to the share of 4/10 (hereinafter “share of each of the instant real estate”) out of each of the real estate listed in the separate sheet as indicated in the primary claim, and sought the cancellation of the ownership transfer registration and the restoration of the original property to its original state (hereinafter “the instant sales contract”). ② The Plaintiff sought compensation for the cancellation of the instant sales contract and the restitution of the original property to its original state by the preliminary claim.

On the other hand, the first instance court dismissed the plaintiff's primary claim and accepted all the conjunctive claim. The defendant appealed against the judgment of the first instance, and the plaintiff also filed an incidental appeal to the purport that the plaintiff expandss the conjunctive claim, so only the plaintiff's conjunctive claim is subject to the judgment of the first instance court.

2. Judgment on the defendant's main defense

A. Summary of the assertion

While the lawsuit of this case is pending, the lawsuit for the revocation of fraudulent act (hereinafter referred to as the "prior lawsuit") was filed by the non-party C Co., Ltd. against the defendant in this court 2017Na20617 (hereinafter referred to as the "C"), and as to the sales contract of this case concluded between the defendant and B, it shall be filed within the scope of KRW 223,00,000, which is the balance calculated by deducting all secured obligations, such as the right, etc., from the value of each real estate of this case, from the value of each real estate of this case, and it shall be filed within the scope of KRW 223,00,00,000, which is the remaining amount (as of September 20, 2017, the judgment ordering the defendant to pay KRW 223,00,000,000 to C is finalized).

Accordingly, the instant lawsuit against the Defendant seeking revocation of the instant sales contract and compensation for the equivalent value of each of the instant real estate shares, which is the same as the prior lawsuit, should be dismissed as it is no longer unlawful since the Plaintiff’s lawsuit is groundless as it does not have any interest in the lawsuit.

B. Relevant legal principles

Each obligee who satisfies the requirements for obligee’s right of revocation is entitled to revoke the obligor’s act of disposal of the property and seek restitution. However, in case where a creditor has been rendered a favorable judgment and the judgment has completed recovery of the property or value, a creditor’s claim for revocation and restoration of the original creditor’s property becomes final and conclusive, to the extent that it overlaps with the other obligee’s claim for revocation and restoration of the original creditor’s property and reimbursement of the original creditor’s property, and in case where a lawsuit for revocation of a fraudulent act is overlapped with one another, the other obligee’s claim for revocation and restoration of the original creditor’s property will no longer benefit in the protection of rights to the extent that it overlaps. In a case where a lawsuit for revocation was filed in relation to the same fraudulent act, as long as the market value of the real estate disposed of was re-determined by a final and conclusive judgment in the preceding lawsuit, even if the increased portion is not overlapping with the part recognized by the above final and conclusive judgment, it cannot be ordered to compensate for the value thereof again (see, e.g.

(c) Fact of recognition;

The following facts may be acknowledged, either in the absence of a dispute between the parties, or in the absence of a significant dispute between the parties, by integrating the evidence No. 12, Eul No. 13-1, and Eul No. 13-2, and the whole purport of the pleadings as a result of the appraisal by the parties D:

1) On November 28, 2014, the Plaintiff filed a lawsuit seeking revocation against the Defendant with the Daegu District Court 2014Gahap206468 relating to each of the instant real estate shares (the first instance judgment of the instant lawsuit).

2) On January 16, 2015, C filed an identical obligee revocation lawsuit against the Defendant as the Daegu District Court 2015Gahap200368 relating to each of the instant real estate shares (the first instance court in prior lawsuit).

3) The instant lawsuit and prior lawsuit were initiated by the same adjudication division in the first instance trial. On each date for pleading (the date for the eighth day of the first instance trial of the instant lawsuit, the date for the fourth day of the first instance trial of the instant lawsuit, and the date for the fourth day of the first instance trial of the instant lawsuit), which was conducted concurrently on December 22, 2015, the Plaintiff, the Defendant, and the Defendant stated that “No dispute exists over the fact that the entire market price of each of the instant real estate was a total of KRW 2.5 billion at the time of the instant sales contract ( fraudulent act) and the conclusion of the instant argument, and thus, the market

4) On December 22, 2016, the judgment of the first instance court of the instant lawsuit and the prior lawsuit was rendered respectively. The summary of the judgment was revoked within the scope of KRW 508,00,000 for each of the instant real estate shares, and the Defendant paid KRW 508,00,000 to the Plaintiff for each of the instant lawsuits.

Meanwhile, the above 508,000,000 won was the amount calculated by deducting the secured debt amount of KRW 492,000,000,000 from the market price of each of the instant sub-movables at KRW 1 billion (2.5 billion X 4/100 of the market price of each of the instant sub-movables).

5) The Defendant appealed only with respect to the above judgment of the first instance court, and in the preceding lawsuit, there was still no dispute over the market price of each of the instant real estate shares between the parties. However, as the Defendant’s appeal on the calculation of the amount of secured claims, such as the right to collateral security, which was established regarding each of the instant real estate in joint E-ownership, was partially accepted, the instant sales contract on September 20, 2017 with respect to each of the instant real estate shares was revoked within the scope of KRW 223,00,000, and the Defendant was sentenced to restitution to the original state, and became final and conclusive as it was, after the Defendant was sentenced to payment KRW 223,00

However, in the instant lawsuit, the Plaintiff filed an objection against the market price of each of the instant real estate shares in order to verify the current market price close to the date of the closing of argument at the trial while filing an objection against the market price of each of the instant real estate shares, which was arranged by the Plaintiff as the fact that there was no dispute at the first instance trial through a preparatory document and an application for appraisal as of June 15, 2017. According to the results of appraisal, the market price of each of the instant real estate shares as of August 31, 2017 was KRW 1,580,814,000.

6) On November 9, 2017, C applied for a compulsory auction on each portion of the instant real estate in accordance with the final judgment of the previous lawsuit, and rendered a ruling of the commencement of compulsory auction under the Daegu District Court Branch Decision 2017TTA7412.

7) On November 29, 2017, the Defendant repaid 225,519,554 won for the amount of compensation for damages and damages for delay based on the prior lawsuit to C, and C withdraws the above application for compulsory auction on December 4, 2017.

(d) judgment;

1) Considering the above legal principles and the following circumstances acknowledged by the facts of evidence and recognition based on the aforementioned legal principles, insofar as the Defendant completed a return of value based on the final and conclusive judgment of the previous lawsuit, even if the result of appraisal of shares in each of the instant real estate was increased in the market price in the previous lawsuit, the increased portion cannot be deemed as a part that is not overlapping with the part recognized in the final and conclusive judgment, and thus, it cannot be again ordered compensation for the said increased portion. Accordingly, the instant lawsuit does not have a benefit in protecting the rights.

A) In a case where a creditor revocation suit with the same content was overlapped, the judgment of the preceding case became final and conclusive, and as long as the restoration of property or value has not been completed, the benefit in the protection of rights of the subsequent case is not lost. This ultimately refers to the time when the beneficiary is exposed to the risk that the beneficiary should be subject to double enforcement.

However, since the appraised value of the following cases is higher than the appraised value of the market price of the preceding cases, if the beneficiary orders additional compensation for the difference, this would cause an excessive sacrifice to the beneficiary, which is more in our reality where the real estate price has continuously increased.

B) In the instant case, although the market price appraisal was not made with respect to the share of each of the instant real estate in the preceding lawsuit, there seems to be no reason to treat the shares of each of the instant real estate as the market price assessment was made in view of the following circumstances.

① The problem that may arise when the market price of the real estate is settled between the cancelled creditor and the beneficiary due to the absence of dispute is likely to prejudice other creditors.

However, in the preceding lawsuit and the first instance court of this case, the market price of each real estate share in this case was adjusted to the fact that there was no dispute over the market price of each of the above lawsuits. At each date of pleading where both the plaintiff, C, and the defendant participated in the proceedings on the same day, the first instance court was also declared on the same day by the same full bench. In other words, the plaintiff of this case was also organized in the first instance court to the fact that there was no dispute over the market price of each of the real estate share in this case. Based on this, the judgment of the first instance was sentenced to the judgment of the first instance court. Accordingly, the market price of each of the real estate share in this case cannot be deemed to have been adjusted to the fact that C and the defendant who are the party to the previous lawsuit with the intent to impair the plaintiff.

② The time when the market price of each of the instant real estate shares was adjusted as the fact that there was no dispute over the market price of each of the instant real estate shares was adjusted on November 22, 2015, and the appraised value at the trial was based on August 31, 2017, and thus, it is difficult to readily conclude that the market price of each of the instant real estate shares, which was adjusted as the fact that there was no dispute over the time when considering the aforementioned time difference and the reality of our real estate price as seen earlier,

③ From the standpoint of the Defendant, each of the instant lawsuit and the instant lawsuit had been arranged as the fact that there was no dispute over the market price of each of the instant real estate shares in the first instance court, and only the Defendant appealed with respect to each of the instant judgment, so it is difficult to deem that the Plaintiff had an intention to prejudice any of the specific creditors in paying the amount of the judgment in accordance with the final judgment of the previous lawsuit. In other words, it is difficult to deem that the Plaintiff had an objection against the fact that the Plaintiff filed an application for the market price assessment by using the Defendant’s appeal, even if the Plaintiff did not file an appeal against the final judgment of the first instance court against the first instance court. Therefore, it is difficult to deem that the Plaintiff had expressed an objection against the fact that the Plaintiff had arranged the market price of each of the instant secondary shares in the first instance court to the fact that there was no dispute over the market price of

④ As mentioned in the above Section A, the view that the market price appraisal in the latter case is higher than the market price appraisal in the preceding case is higher than the market price appraisal in the preceding case, and if the market price appraisal in the latter case is lower than the market price appraisal in the preceding case, there is also a problem that the beneficiary’s claim to return the difference equivalent to the difference to unjust enrichment is not acceptable. This is not a problem that can be treated differently by deeming the difference to be a case where there is no dispute. In particular, it is more so-called that there is a possibility that other creditors may be harmed by arranging it to the fact that there is no market price in the subject real estate between multiple creditors and the next parties, such as this case.

C) From the Plaintiff’s standpoint, the instant lawsuit was initiated by the same trial division from the first instance court along with the prior lawsuit, and the appellate court also proceeded with the same trial division, and was aware of the fact that the judgment of the prior lawsuit was rendered and finalized prior to the instant lawsuit, and thus, did not take any measure, even if it was possible to seize or provisionally seize the obligor’s claim for return of money against C based on the enforcement title against the obligor for the protection of his/her rights.

In addition, under the current system of creditor's right of revocation, there is no provision that allows the revocation creditor to deposit the money paid on the basis of the beneficiary, etc. in the court, or deposit the money with the beneficiary, etc. such as compensation for value to be paid to the beneficiary, etc., so it cannot be deemed unlawful on the ground that the defendant paid compensation for value to C, which is the plaintiff in the preceding lawsuit. In particular, since the defendant already paid compensation for value to prevent the occurrence of compulsory execution procedure against each real estate of this case, there is no room for criticism

D) The Plaintiff asserts to the effect that, among the market value of each of the instant real estate shares, the part excluding KRW 223,00,000,000, which ordered compensation for value in the preceding lawsuit does not fall under the overlapping scope of the protection of rights. However, in the above legal doctrine, if a lawsuit seeking revocation of a fraudulent act overlaps, the scope of the benefit of the protection of rights is limited to the overlapping scope of the benefits of the protection of rights." The purport of the above legal doctrine is not that the beneficiary is within the scope of compensation for the value actually performed by the beneficiary, such as the original assertion, but that the whole amount of the judgment in favor of the revocation of the fraudulent act is within the scope of the claim of the revocation creditor, as in the case where the judgment in favor of the above revocation becomes final and conclusive without considering all the claims of the right holder, it is reasonable to view that the other creditor may revoke the remaining portion of the fraudulent act within the scope of his own claim within the scope of his new claim amount.

2) As to this, the Plaintiff applied for resumption of pleadings as if the Plaintiff intended to restore the date to the original state through reference documents after the date of the first sentence on November 15, 2017, and thereafter, the Plaintiff applied for resumption of pleadings. In other words, the Plaintiff demanded re-verification of the market price appraisal as to each real estate share of this case solely for the postponement of a declaration of the date of pleading. On November 29, 2017 following the continuation of the date of pleading, the Plaintiff continued negotiations with C immediately after the date of negotiations with C and paid all the proceeds of the preceding lawsuit on November 29, 2017. Considering these circumstances, the Defendant asserts that the Defendant’s defense that there is no benefit of protecting the rights in the instant lawsuit would be unreasonable in light of the concept of justice to exercise rights against the other party’s trust and good faith.

In light of the following circumstances, it cannot be concluded that the Defendant delayed the completion of the lawsuit, and the Plaintiff’s incidental appeal was filed on November 13, 2017. The main reason for delaying the completion of the lawsuit is as follows: (i) the Plaintiff did not file an appeal against the judgment of the first instance court and applied for appraisal; (ii) the Defendant, the appellant, made a request for resumption of the pleading and demanded reconsideration on the ground that the result of appraisal on each real estate portion of the instant case was higher than the value adjusted as a fact without dispute in the previous first instance trial; and (iii) the Defendant’s application for resumption of the pleading on November 9, 2017, and the Plaintiff’s incidental appeal was filed on November 13, 2017, and thus, it cannot be concluded that the Defendant delayed the conclusion of the lawsuit; and (iii) the Plaintiff’s application for appraisal on each real estate portion of the instant case could not be sufficiently delayed from the point of view of the Plaintiff’s assertion that the completion of the lawsuit would have been difficult from the point of view of view of view of view of the Plaintiff.

3. Conclusion

If so, the plaintiff's conjunctive claim against the defendant is unlawful and thus, it shall be dismissed. The part concerning the conjunctive claim in the judgment of the court of first instance as to the conjunctive claim is unfair with different conclusions, and it is so decided as per Disposition by the assent of all participating Justices.

Clinical technicians (Presiding Judge)

Lee Jin-Jin

South Korean War

List

1. Daegu-gu Seoul Metropolitan City G 1248-11

[Road Name Address] Daegu Fgu Gdong 60

Large 755m Mate

2. Ground above;

built of reinforced concrete and general steel structure

6th floor of reinforced concrete sloping roof

Neighborhood living facilities, educational research and welfare facilities;

A notice of bankruptcy concerning the machinery room of the first floor 18.15m above;

Parking lot 356.63 square meters

1st floor general restaurants of 390.59 square meters

Parking lot 19.98m Mate

A penalty of 410.57m of a second floor member;

414.53m of a three-story private teaching institute;

A penalty of 414.53m of a 4-story private teaching institute;

398.72 square meters at a 5-story private teaching institute.

6.One-story 206.75m last.