Plaintiff (Attorney Lee In-bok et al., Counsel for plaintiff-appellant)

same-sex L&A Co., Ltd. (Attorney Han-tae et al., Counsel for the defendant-appellant)

December 24, 2014

Daegu District Court Decision 2013Gahap10912 Decided May 15, 2014

1. The judgment of the court of first instance is modified as follows.

A. On October 30, 2013, the agreement to establish a right to collateral security concluded on October 30, 2013 with respect to real estate recorded in the separate sheet between the Defendant and the Defendant shall be revoked.

B. The Defendant shall implement the registration procedure for cancellation of the registration of the establishment of the establishment of the neighboring real estate completed by the Daegu District Court No. 14528, Oct. 30, 2013, which was completed on October 30, 2013.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim and plaintiff's purport of appeal

The text shall be as shown in the text.

2. Purport of the defendant's incidental appeal

Under the judgment of the court of first instance, the part against the defendant exceeding the scope of order for cancellation of a contract and modification of a right shall be revoked, and the plaintiff's claim corresponding to the cancellation portion shall be dismissed. It shall be revoked only on the part exceeding 3,898,396,759 won of the maximum debt amount regarding the mortgage contract concluded on October 30, 2013 with respect to the real estate stated in the separate sheet among the defendant, which was completed as of October 30, 2013 by the Daegu District Court No. 14528, Oct. 30, 2013. The defendant shall execute the procedure for modification of a right to register the establishment of a neighboring real estate which was completed as of October 30, 2013 with the Daegu District Court No. 3898,398,396,796,759, 709, 3008, 309, 4008, 709, 7509, 709, 70008

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between the parties, and each statement in Gap evidence Nos. 1, 2, 3, 5, 7, 8, 11, Eul evidence Nos. 1, 5, 11, and Eul evidence Nos. 1, 5 through 10 (including the branch numbers where no special indication is made; hereinafter the same shall apply), and the fact inquiry with the Director General of the Daegu District Court of the court of first instance on the registration of the Daegu District Court of the court of first instance can be acknowledged according to the appraisal results of the first instance appraiser No. 1 and the purport of the whole pleadings, and part of the testimony of the

A. The establishment and implementation process of conciliation between the Plaintiff and the Il-Swee Distribution Company

1) Around May 11, 1990, the Plaintiff sold large 2873.6m2 (hereinafter “instant land”) to the Daegu Northern-gu Seoul Northern-gu Distribution Co., Ltd. (hereinafter “Small-do Distribution”), but was not paid any balance, the Plaintiff filed a lawsuit claiming transfer of land, etc. against Nonparty 3, who is the real owner of the distribution and delivery of land on July 30, 2004. On June 4, 2010, the Daegu District Court 2004Kahap9750 (hereinafter “instant mediation”) filed a lawsuit claiming transfer of land, etc. against Nonparty 3, who is the real owner of the land. On June 4, 2010, the appellate court of the instant case, Daegu High Court 208Na8349, the appellate court of the instant case, the Plaintiff, the Do governor distribution and distribution, and Nonparty 3, the following contents (hereinafter “instant mediation”).

2) On July 7, 2011, the Plaintiff prepared all the documents indicated in paragraph (d) of Article 1 of the instant conciliation (documents necessary for the registration of transfer of ownership to the instant land, documents for provisional disposition and cancellation of provisional seizure, documents necessary for the cancellation of the registration of establishment of mortgage, documents necessary for the change of the owner’s name, and documents necessary for the change of the owner’s name), and sent copies of all the above documents to Nonparty 3, along with the notification stating that “The Plaintiff prepared all the necessary documents, without delay designated a financial institution, and changed the performance

3) Even though the Plaintiff provided a short-term distribution with a duty to provide documents, the Plaintiff did not pay the land price prescribed in Paragraph (1) of the instant conciliation even though daily distribution was not made. On September 16, 2011, the Plaintiff was granted execution clause as to the original copy of the instant conciliation protocol, and was ordered to commence the compulsory auction of real estate on November 4, 2013, Daegu District Court 2013TT23143 regarding the instant building.

B. Short-term distribution and mortgage contract between the defendant

1) On July 26, 1989, the Plaintiff entered into a first contract between the Plaintiff and the Plaintiff to newly construct the instant building on the instant land owned by the Plaintiff (at the time, the instant building was planned to be the 18th floor size of the underground floor) in the amount of KRW 21.945 billion, and the construction was carried out. On August 17, 1989, the Plaintiff established a daily distribution after being appointed as the representative director and then appointed the Plaintiff as the representative director. On January 20, 1992, the instant building (the instant building was changed to the 17th floor size of the underground floor) was changed to the 22.777 billion won, and the said construction was carried out.

After the termination of the second contract on June 30, 197, the construction of the building of this case was not paid at the time from the daily circulation, the Daegu District Court rendered a judgment on December 22, 2000 that "one-day distribution, six48,626 won jointly and severally, and 1,317,564,30 won among them, and damages for delay shall be paid to 1,883,64,626 won and 1,317,564,30 won among them, which became final and conclusive on January 21, 201."

2) On July 27, 2010, Seog Construction entered into an agreement on the transfer and takeover of claims with the effect that all of the claim for the construction price of the instant building will be transferred to the Defendant, and notified the Defendant of the said transfer of claims on the 30th day of that month. On December 21, 2012, the Defendant was rendered a judgment in favor of the Defendant to the effect that, on June 26, 2013, the Seoul Northern District Court 2012Gahap21854 claim against Nonparty 3 for the payment of the above claim for the construction price and the claim for the payment of KRW 5,00,000,00,000, and the claim for the payment of KRW 8,635,123,626 and damages for delay against Nonparty 3’s payment of KRW 5,000 among them.

3) On Oct. 30, 2013, 2013, the Appellee distribution concluded a contract with the Defendant to establish the right to collateral security (hereinafter “instant right to collateral security”) with the Defendant, the Defendant, and the maximum debt amount of 10 billion won with respect to the instant building. On the same day, the Daegu District Court received the said right from the Daegu District Court, and completed the registration of establishment of the said right to collateral security (hereinafter

(c) The status of the property in circulation;

(i)affirmative property;

At the time of entering into the instant mortgage contract with the Defendant, the details of active property of daily distribution are 28,808,127,700 won (24,632,727,700 won +4,175,400 won +28,808,127,700 won).

① The instant building: 24,632,727,700 won

② Claim for ownership transfer registration of the instant land: 4,175,400,000 won (the market price of the instant land shall be calculated as the amount equivalent to the market price of the relevant site because it is a right finalized in

2) Petty property

At the time of concluding the instant contract to establish a mortgage with the Defendant, the details of the small-scale distribution in daily distribution are as follows. The sum of the values is at least KRW 33,164,598,453.

본문내 포함된 표 1. 가. 원고는 욱일유통, 소외 3으로부터 22억 원을 지급받음과 동시에 원고 소유의 이 사건 토지에 관하여 1990. 5. 11.자 매매를 원인으로 한 소외 3 또는 욱일유통 명의의 소유권이전등기를 경료하고, 이 사건 토지 위에 건축 중인 골든프라자 오피스텔 건물(이하 ‘이 사건 건물’이라 한다.)에 대한 건축주 명의를 소외 3 또는 욱일유통 명의로 이전하는 절차를 이행한다(다만, 욱일유통, 소외 3이 이 사건 토지에 관한 소유권이전등기 경료시 이 사건 토지에 경료되어 있는 채권자 대평건설 주식회사 명의의 가처분 등기 및 채권자 주식회사 서광건설산업 명의의 가압류 등기, 에스비에이비에스 주식회사 명의의 근저당권설정등기의 각 말소등기절차에 필요한 제반서류를 구비하고 말소등기절차를 이행함에 있어 원고에게 협조를 요청하면 원고는 필요한 협조를 다하여 주기로 한다). 나. 욱일유통, 소외 3은 원고가 이 사건 토지에 관하여 위 가.항에서 본 바와 같은 소유권이전등기 및 건축주명의이전절차를 이행하고, 위 가.항에서 본 바와 같은 가압류, 가처분, 근저당권설정등기의 말소등기절차에 필요한 협조를 이행받음과 동시에 연대하여 원고에게 제1항 기재 22억 원 및 이에 대한 지연이자를 지급한다. 다. 만일 욱일유통, 소외 3이 제1항 기재 22억 원을 그 지급기일까지 지급하지 아니할 때에는 원고는 위 돈 및 이에 대하여 2010. 9. 1.부터 다 갚는 날까지 연 7%의 비율로 계산한 지연손해금을 가산한 금액을 욱일유통, 소외 3으로부터 지급받음과 동시에 위 가.항의 의무를 이행한다. 라. 위 가. 내지 다.항에서 욱일유통, 소외 3이 원고에게 지급할 금액은 원고로부터 이 사건 토지에 관한 소유권이전등기 및 가처분, 가압류, 근저당권설정등기의 말소등기절차를 이행받아 이 사건 토지를 담보로 금융기관에서 대출받은 돈으로 조달하기로 한다. 원고가 위 가.항에서 정한 소유권이전등기에 필요한 서류, 가처분 및 가압류 말소서류(주식회사 서광건설산업의 가압류집행등기에 한한다), 건축주 명의 변경에 필요한 서류를 욱일유통, 소외 3이 지정한 금융기관에 제공하고, 근저당권말소에 필요한 협조를 제공하기 이전에는 위 가. 내지 다.항에서 본 욱일유통, 소외 3의 금원지급의무 및 그에 대한 지연손해금 지급의무는 물론 아래 2 내지 4항에 기재된 욱일유통, 소외 3의 의무 또한 발생하지 않는다. 마. 위 라.항과 같이 원고가 각 서류를 제공하였음에도 대출이 실행되지 않아 욱일유통, 소외 3이 위 가. 내지 다.항에서 본 금액을 원고에게 지급하지 못할 경우에는 원고가 위 라.항에서와 같이 금융기관이나 욱일유통, 소외 3에게 교부한 위 각 서류는 원고에게 반환되어야 한다. 2. 가. 욱일유통, 소외 3은 연대하여 제1항 기재 22억 원 이외에 원고가 그 동안 지출한 경비 등 손해에 대한 배상으로 14억 원을 추가로 원고에게 2012. 3. 31.까지 지급한다. 나. 다만, 욱일유통, 소외 3은 위 가.항 기재 돈의 지급에 갈음하여 이 사건 건물을 대물로 변제할 수 있다. 이 경우 원고가 대물로 변제받을 이 사건 건물의 분양대금은 욱일유통, 소외 3이 이 사건 건물을 일반인에게 분양하는 분양가의 92%로 계산한 금액으로 한다. 다. 욱일유통, 소외 3이 위 가. 나.항을 2012. 3. 31.까지 이행하지 않을 때에는 욱일유통, 소외 3은 연대하여 원고에게 70억 원 및 이에 대한 2012. 4. 1.부터 다 갚는 날까지 연 20%의 비율로 계산한 지연손해금을 지급한다. 3. 가. 욱일유통, 소외 3은 이 사건 토지에 관한 매매대금 중 원고에게 대물로 지급하기로 한 15억 원에 대하여 2012. 3. 31.까지 이 사건 건물을 완공한 후 이 사건 건물 중 지하 1층 200평, 지상 1층 100평, 2층 100평, 3층 100평, 16층 50평, 17층 200평 합계 750평을 대물변제하기로 한다. 나. 욱일유통, 소외 3이 2012. 3. 31.까지 이 사건 건물 750평을 대물변제하지 못하는 경우, 욱일유통, 소외 3은 연대하여 70억 원 및 이에 대하여 2012. 4. 1.부터 다 갚는 날까지 연 20%로 계산한 지연손해금을 가산하여 지급한다. 4. 가. 욱일유통, 소외 3은 이 사건 합의에 따라 원고에게 지급할 금원을 조달하기 위하여 이 사건 토지 및 건물을 담보로 금융기관에서 대출받은 용도 이외에는 이 사건 토지 및 건물에 어떠한 근저당권도 설정하여서는 아니 된다. 나. 욱일유통, 소외 3이 위 가.항을 위반할 경우에는 제2, 3항에서 정한 기한의 이익을 상실하기로 한다. 다. 제3항의 기한 내에 이 사건 토지 및 건물에 대하여 제3자가 강제경매신청을 하거나 금융기관 등이 임의경매신청을 할 경우 욱일유통, 소외 3은 기한의 이익을 상실하고, 원고는 제2, 3항의 금전채권을 채무명의로 하여 이 사건 토지 및 건물에 대하여 강제집행을 할 수 있다. 5. 가. 이 사건 토지에 대한 양도소득세는 원고가 부담하기로 하고, 이 사건 토지에 대한 2010년분부터의 종합토지세는 욱일유통, 소외 3이 부담하기로 한다. 나. 욱일유통, 소외 3은 원고가 요구하는 경우 대물변제분 양도소득세 신고에 필요한 제반서류를 원고에게 제공하기로 한다. 다. 욱일유통, 소외 3이 위 나.항을 위반할 경우에도 욱일유통, 소외 3은 제1 내지 3항에서 정한 기한의 이익을 상실한다. 6. 원고의 욱일유통, 소외 3에 대한 나머지 청구를 모두 포기한다.

2. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

On the premise that the Plaintiff is a sole-time distribution creditor, the Plaintiff asserts that the instant mortgage contract concluded between the Defendant and the sole-time distribution and the instant lawsuit constituted a cause invalidation or fraudulent act. However, the Plaintiff did not provide the ownership transfer registration documents, etc. prescribed in subparagraph 1(d) of the instant conciliation for the sole-time distribution. As such, the Plaintiff’s claim on daily distribution was not actually generated. Accordingly, the Plaintiff’s lawsuit is unlawful as it was instituted by a person who is not standing to sue.

B. Determination

On the other hand, standing to sue in a lawsuit for revocation of a fraudulent act and a claim for restitution is a person who asserts that he/she has a preserved claim, and whether he/she actually has a preserved claim is not a litigation requirement but a matter to be determined on the merits of the lawsuit. Therefore, the prior defense of the prior defendant on a different premise is without merit.

3. Part concerning a request for cancellation of registration of invalidation;

A. The plaintiff's assertion

The Plaintiff provided all the documents specified in the instant conciliation to a short-time distribution, and was granted an execution clause based on the original copy of the conciliation protocol on September 16, 201 in order to seek the execution of a opposite obligation for distribution, which is short-term distribution. On October 30, 2013, Japan and Japan concluded the instant mortgage contract on the instant building with the Defendant to be exempted from the Plaintiff’s compulsory execution. In short, the Defendant, despite being aware of such circumstances, actively participated in the act of trust in daily distribution and daily distribution in collusion with Nonparty 3, concluded the instant mortgage contract and completed the registration of the establishment of the instant neighboring mortgage in the name of the Defendant on the instant building. Accordingly, the instant mortgage contract between the Defendant and daily distribution is invalid as it is contrary to social order, and the Defendant is also obligated to perform the registration procedure for cancellation of the establishment of the instant mortgage.

B. Determination

In light of the evidence evidence Nos. 2, 4, 6, and 7, it is not sufficient to acknowledge that the Defendant was publicly recruited or actively involved in the act of breach of trust of setting up the instant right to collateral security in order to avoid compulsory execution by the Plaintiff, etc., solely with the descriptions of evidence Nos. 8, 9, and 10, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s above assertion on the premise that the Defendant actively participated in the act of setting up the instant right to collateral security, which constitutes the act of breach of trust of daily distribution, is without merit.

4. Part on the claim for revocation of fraudulent act

A. Claims against the Plaintiff’s daily circulation

1) Formation of claims

If a strict provision of performance of a party's obligation in a bilateral contract is required for the party to the bilateral contract, it may be placed on the party in bad faith. Therefore, the degree of offer to be made by the party should be reasonably determined so that it does not violate the principle of good faith depending on the time and specific circumstances (see Supreme Court Decision 2001Da6053, May 8, 2001, etc.).

In light of the following circumstances revealed by the facts and quoted evidence as seen earlier, namely, the Plaintiff: (a) prepared the documents specified in Section 1-D of the instant conciliation and demanded a financial institution to provide the said documents to distribute them on a short-time basis; and (b) the Daegu District Court recognized that there was a provision of the obligation to provide all the documents on September 16, 201 and granted the execution clause to the Plaintiff under the instant conciliation protocol; (c) Nevertheless, only one-day distribution did not take measures to designate a financial institution to provide all the documents and notify the Plaintiff of the payment; and (d) even until March 31, 2012, the Plaintiff did not perform the obligation to pay the money under Sections 2-A and 3-A of the instant conciliation, even if it did not perform the obligation to provide all the documents specified in Section 1-D of the instant conciliation, it is deemed that the Plaintiff provided the payment of KRW 200 million to the Plaintiff during the period for performance of the obligation to provide the documents specified in Section 1-D of the instant conciliation and KRW 213100 billion.

2) Determination as to the defendant's argument regarding simultaneous performance

A) Defendant’s assertion

The Plaintiff’s right to claim money for daily distribution and the duty to transfer ownership of the land of this case against the Plaintiff in the simultaneous performance relationship with regard to the simultaneous performance relationship, in order for the Plaintiff to seek the performance of the obligation to pay money against daily distribution, the Plaintiff also performs the duty to transfer ownership of the land of this case and continues to maintain the status of provision of performance. On August 5, 2014, the Plaintiff cannot perform the obligation to transfer ownership of the land of this case in a complete state without any limitation or burden by establishing a creation of a creation of a neighboring mortgage equivalent to the maximum debt amount of 10.4 billion won in the name of the non-forest Capital Co., Ltd. as to the land of this case on August 5, 2014. As such, the Plaintiff’s right to claim for daily distribution is not possible, and the Plaintiff does not have the right to revoke the right to claim payment. The Plaintiff is

B) Determination

In the instant conciliation (paragraph (A) of this case, the Plaintiff’s right of revocation may be exercised to preserve not only the purchase price claim of the land of this case, but also the said right of revocation may be exercised to preserve the said right of revocation on the ground that the Plaintiff has lost the need to preserve the Plaintiff’s claim for compensation for breach of 1.4 billion won, in addition to the claim for the purchase price of the land of this case and the claim for compensation for breach of 2.2 billion won as to daily distribution, the Plaintiff simultaneously implemented the registration of ownership transfer of the land of this case to the non-party 1 and the distribution of the land of this case to the non-party 3, and the non-party 3 paid to the Plaintiff KRW 2.2 billion. However, there is no assertion and proof that the Plaintiff has a claim for compensation for breach of 1.4 billion won due to the Plaintiff’s failure to pay damages corresponding to the Plaintiff’s expenditure.

Therefore, it is not necessary to examine whether the Plaintiff’s obligation to transfer ownership on the land of this case was impossible to fulfill (or whether there is a ground for objection as to the conciliation of this case) and the Defendant’s assertion is without merit (the same shall apply even if the Defendant excludes the obligation described in paragraph (a) of the conciliation of this case, which is asserted that the simultaneous performance relationship is held by the Defendant, the passive property of daily distribution exceeds the value of active property).

B. Whether a fraudulent act against the plaintiff was committed

1) The establishment of fraudulent act

A) In a debtor who has already been in excess of his/her obligation, business promotion difficulties arising from enforcement and preservation measures for recovery of the creditor’s claim, such as compulsory execution or provisional seizure, may occur at the same time regardless of whether the creditor’s claim amount or the due date has arrived or not. Moreover, it is difficult to conduct discriminatory evaluation as to the necessity of preferential security among creditors solely on the ground that a specific creditor, as at the time, actively showed such collection measures against the debtor. Furthermore, the economic significance of the debtor’s introduction of new funds that the debtor could actually utilize in business activities and the extension of the due date or the postponement of collection of claims is the same as that of the rehabilitation or continuous implementation of the business. Therefore, even if the debtor intended to complete or continue the business, the debtor’s offering of security to one of his/her creditors for the repayment of the existing debt without new funds should be deemed as fraudulent act in relation to other creditors (see, e.g., Supreme Court Decision 2009Da104564, Apr. 29, 2010).

B) As seen earlier, despite the fact that distribution is in excess of the active property, the act of entering into the instant mortgage contract with the Defendant and setting up the right to collateral in the future of the Defendant would damage the Plaintiff, a creditor of daily distribution, barring any special circumstances. It is recognized that only distribution was aware of such circumstances as the debtor who entered into the instant mortgage contract. Meanwhile, in light of the fact that the Defendant was aware of the fact that the Defendant would cause damage to the Plaintiff by entering into the instant mortgage contract.

Therefore, the instant mortgage contract constitutes a fraudulent act against the Plaintiff, and thus, it should be revoked upon the Plaintiff’s request. Meanwhile, the Defendant is obligated to implement the registration procedure for cancellation of the instant mortgage establishment to distribute only a full-time distribution, as it is restitution to its original state.

2) Judgment on the defendant's assertion of right to demand mortgage

A) As to this, the Defendant asserts that Article 666 of the Civil Act provides that “A contractor of a real estate construction project may claim the establishment of a mortgage for the purpose of securing a claim for remuneration.” Since the Defendant, based on the “contractor’s right to claim the settlement of mortgage,” entered into a mortgage contract on the instant building with daily distribution and delivery, the instant mortgage contract does not constitute a fraudulent act.

Therefore, we first examine whether the Defendant has the right to claim the creation of mortgage as stipulated in Article 666 of the Civil Act against only one-time distribution, but the Defendant is not the contractor regarding the new construction of the building of this case, but merely the assignee of the obligation to claim the construction payment from the contractor, and it is difficult to view that the Defendant has the right to claim the creation of mortgage as to only distribution pursuant to the above legal provisions, and there is no other evidence to acknowledge that the Defendant has the right to claim the establishment of mortgage of this case. Therefore, the Defendant’s assertion on the premise that the Defendant had the right to claim the creation of mortgage of this case as the exercise of the above right to claim the creation of mortgage of this case is without merit. [The Plaintiff asserted that the above right to claim the establishment of mortgage of this case by

B) The Defendant asserts to the effect that the right to claim for the establishment of mortgage against the cargo distribution has also been transferred to the Defendant by taking over the construction cost claim for the cargo distribution from the Seog Construction to the Seog Construction. However, each of the evidence Nos. 2, 9, and 15 is insufficient to recognize that the right to claim for the establishment of mortgage against the cargo distribution has been transferred to the Defendant, and there is no other evidence to acknowledge this otherwise, and it is reasonable to view that the contractor’s right to claim for the establishment of mortgage should be extinguished unless there are special circumstances where the contractor transfers only the construction cost claim to another person without realizing the right to claim for the establishment of mortgage in light of the following various circumstances. Therefore, the Defendant’s argument against this is not acceptable.

○○ Contractor’s right to demand mortgage is interpreted as pure claim (the prior right recognized by the former Civil Act was repealed by the enactment of the Civil Act). Therefore, the contractor’s right to demand mortgage is not immediately established by the enforcement of the contractor’s right to demand mortgage, but the contractor’s right to demand mortgage is not immediately established by the enactment of the Civil Act.

○ If a contractor transfers the object real estate, the contractor’s right to demand the settlement of mortgage is extinguished, and like this, if the contractor’s right to demand the settlement of mortgage is transferred only without realizing the contractor’s right to demand the settlement of mortgage, it is reasonable to view that the contractor’s right to demand the settlement of mortgage expires (in this case, the contractor will be exempted from the contractor’s obligation to comply with the contractor’s claim for the settlement of mortgage, but it can not be

Although the purport of recognizing ○ contractor’s right to claim the creation of mortgage lies in securing contractor’s right to claim the construction cost, it is difficult to deem that the transfer of the construction cost claim is easy or the improvement of its value is allowed by recognizing the same right to claim the creation of mortgage to the assignee if the contractor transfers the construction cost claim.

○ In the event a contractor’s right to demand mortgage terminates, the contractor’s right to demand mortgage does not arise or ceases to exist due to the contractor’s achievement of the purpose of securing the contractor’s right to claim the construction cost. In such a case, solely on the ground that the contractor’s right to demand mortgage expires along with the contractor’s right to claim the construction cost, the contractor’s right to demand mortgage can not be deemed as having a relationship between the principal and the principal, or between the contractor’s right to claim the construction cost and the principal and subordinate rights.

Since the ○ contractor’s right to demand mortgage is recognized as the contractor’s status, it is not possible for the contractor to transfer the right to demand mortgage as well as the status of the contractor, to transfer it to another person separately from the contractor’s position.

C) In addition, on November 24, 2005, the Defendant made an agreement (see subparagraph 9) stating that “SB construction shall terminate the right to collateral security under the name of SBS with respect to the instant land, and terminate or withdraw the right to claim for transfer registration of ownership, provisional seizure, application for temporary injunction for change of the name of construction permit, etc., and only distribute it to the third party designated by SBB construction or SB construction, and the non-party 3 shall pay the debt for SB construction by completing the registration of transfer of ownership with respect to each section of exclusive ownership of the instant building to the third party designated by SbB construction or SB construction.” Thereafter, on July 27, 2010, the non-party 3 transferred its claim as the contractor under the foregoing agreement to the Defendant and completed the procedure for giving notice of the above assignment, and the Defendant asserted that on October 13, 2010, the contractor acquired the right to collateral transfer from the Daegu District Court and the non-party 3 acquired the right to collateral transfer from the Plaintiff 1767.205.

Therefore, it is difficult to believe that part of the testimony by the witness non-party 2 of the trial court to the effect that the contractor status of the above construction contract was transferred to the defendant after the termination date of the contract, and that the non-party 3 of the trial court prepared a written agreement as alleged by the defendant, or distributed only after the completion date of the contract between the non-party 3 and the defendant as the party to the construction contract, or prepared a written agreement as stated in the above, as argued by the defendant, and the statement in the evidence Nos. 15 through 19 is insufficient to recognize that the defendant acquired the party status of the construction contract from the construction of the building of this case, separately from the original contract of the construction work. Accordingly, there is no reason to acknowledge otherwise.

4. Conclusion

If so, the plaintiff's claim of this case is reasonable, and the judgment of the court of first instance is unfair, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment]

Judges Kang Tae-tae (Presiding Judge) (Presiding Judge) Kim Tae-tae