Plaintiff (Law Firm Hex, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Kim & Lee, Attorneys Kim Young-young et al., Counsel for the defendant-appellant)

July 19, 2006

Seoul Central District Court Decision 2003Da447090 Delivered on June 29, 2005

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. The registration of cancellation of ownership transfer shall be revoked between Nonparty 1 and the Defendant on August 17, 200, which was concluded on August 22, 200 with respect to the forest land of 44,050 square meters and 51,967 square meters of forest land of 51,967 square meters in Dong-ri, Dong-dong (number 2 omitted), Dong-si, Seocheon-si, Seocheon-gu, Seocheon-si, and the Eup (hereinafter “each real estate of this case”). The Defendant will implement the procedure for registration of cancellation of ownership transfer, which was completed on August 22, 2000 by the Daejeon District Court Support

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in Gap evidence Nos. 1, 2, 4, 5, 15-1, 2, Eul evidence Nos. 2-1 through 6, Eul evidence Nos. 3-1, 2, 9, and Eul evidence Nos. 17-1 through 6:

A. Nonparty 1, as a general partner of Nonparty 2 limited partnership, was in office as a representative member. On August 18, 200, Nonparty 1 was in office as the general partner of Nonparty 2 limited partnership.

B. On August 17, 200, before the date of the above default, Nonparty 1 and the Defendant, the owner of each real estate of this case, as of August 17, 200, entered into a payment in substitution for the repayment of loan obligations against the Defendant by Nonparty 1, and completed the registration procedure for transfer of ownership in the name of the Defendant as of August 22, 2000 as of each of the real estate of this case under the Daejeon District Court Branch of Daejeon District Court No. 48937, August 22, 2000.

C. The Plaintiff has a claim for the promissory note amounting to KRW 6,454,250,000 against Nonparty 2 limited partnership, and Nonparty 3, the representative director of the Plaintiff, was the representative of the creditor group at the creditor group around August 21, 200. On January 4, 2001, the Plaintiff filed a lawsuit claiming the amount of the promissory note amount with the Seoul Central District Court Order 2001Kadan2028, which was rendered a favorable judgment on May 15, 2001. The above judgment became final and conclusive around that time.

D. On March 22, 2002, the non-party 2 limited partnership applied for the commencement of composition as Suwon District Court No. 2002 1 on May 2, 2002 and received the decision of the commencement of composition on July 29, 2002 through the meeting of creditors on July 15, 2002, and the plaintiff reported the above claim as composition bond in the process.

E. Afterward, the plaintiff filed an appeal with Seoul High Court No. 2002Ra436, and the appellate court revoked the first instance decision on December 20, 2002, and decided not to authorize composition based on the composition conditions which were approved at the meeting of creditors on July 15, 2000. Accordingly, the Supreme Court reversed the order of June 25, 2003 by the Seoul High Court (Seoul High Court 2002Ra405) which was remanded, and the Supreme Court dismissed the plaintiff's appeal on July 31, 2003, and dismissed the plaintiff's reappeal (2003Ma1434) against the above decision on March 16, 2004, which became final and conclusive.

F. According to the composition approval decision as above, the composition claims against a person other than a financial institution shall be 35% sugar the principal, and shall be repaid in equal installments from 2006 to 2011, and interest shall be exempted.

2. Judgment on the main defense of this case

A. Summary of defendant's defense

The defendant filed the lawsuit of this case after the lapse of one year from July 15, 2002, where the plaintiff filed an application for provisional disposition of prohibition on disposal of each of the real estate of this case with respect to the non-party 2 limited partnership company around October 2000 or the non-party 4 filed the lawsuit of this case on or around January 2002, where the meeting of creditors was held in the composition procedure of the non-party 2 limited partnership company, even though the non-party 1 and the defendant knew of the grounds for cancellation of the payment contract and the payment contract of accord and satisfaction with respect to each of the real estate of this case, and therefore, the lawsuit of this case is unlawful

B. On the other hand, the "date when the creditor, which is the starting point of the exclusion period in the exercise of the creditor's right of revocation, becomes aware of the cause of revocation" means the date when the creditor becomes aware of the requirement of the creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor had committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is insufficient to say that the debtor merely knew of the fact that he conducted a disposal of the property, and further, it is necessary to know the existence of a specific fraudulent act and to know the fact that the debtor had an intent to harm the debtor (see Supreme Court Decisions 9Da53704, Feb. 25, 200; 200Da15265, Jun. 13, 200).

C. As to the instant case, the following facts may be acknowledged in full view of the health class, evidence Nos. 1 through 4, evidence Nos. 5, and evidence Nos. 1 to 15-6, evidence Nos. 2-1 to 3-2, evidence Nos. 5-1, 2, 3, evidence Nos. 8-1, 2, 8-2, 9, evidence Nos. 1 to 17-1 to 6, respectively.

(1) The Plaintiff’s representative director Nonparty 3 urged Nonparty 1 to investigate Nonparty 1 after Nonparty 2’s default on the debt of Nonparty 2 limited partnership company, and submitted written statements to the Seoul District Prosecutors’ Office as of October 31, 200. Nonparty 3 includes the contents that Nonparty 1 and other persons were deducted from the above written statements for the purpose of evading Nonparty 1’s performance of obligation.

(2) On November 11, 200, Nonparty 3 submitted to the Seoul District Public Prosecutor’s Office a petition stating that Nonparty 1 intentionally defaulted the company and deducted the company property from his awareness on November 11, 200, as the representative of the claim group of Nonparty 2 limited partnership, and that Nonparty 3 wanted to punish the company. The petition was accompanied by the list signed by Nonparty 4 and other creditors.

(3) The non-party 4 filed a provisional disposition against the non-party 2 limited partnership claim amounting to KRW 1,938,250,000 against the non-party 2 limited partnership claim amounting to KRW 2,408,408,418,200 against the non-party 2 limited partnership claim amounting to KRW 651,328,205 against the non-party 2 limited partnership claim amounting to KRW 651,328,205 (the payment order of the same court No. 2002,1173). The non-party 4 filed a provisional disposition against the defendant on February 1, 2002 with the Seoul Central District Court 202Kadan37414 against the non-party 2 as the right to claim the cancellation of the transfer registration of ownership as the right to preserve, and on August 1, 203, Daejeon District Court 203Na15309 against each of the above defendant's transfer registration of ownership was revoked.

(4) Meanwhile, as seen earlier, the Plaintiff filed an application for the commencement of composition with Nonparty 2 limited partnership filed a report on the claim for the above promissory note with the composition credit, and the Plaintiff’s representative director, Nonparty 3 and Nonparty 4 were present at the meeting of creditors in the composition held on July 15, 2002, and at that meeting, Nonparty 1 disposed of the personal property.

(5) The non-party 5 corporation, the creditor of the non-party 2 limited partnership company, filed a complaint with the defendant and the non-party 1 against the defendant for evasion of compulsory execution on the ground that the completion of the ownership transfer registration on the forest land (number 1 omitted) among each of the instant real estate constitutes evasion of compulsory execution. However, the defendant and the non-party 1 were suspected of having been subject to disposition on March 21, 2001. The non-party 4 also filed a complaint with the defendant and the non-party 1 on December 24, 2002 on the ground that the completion of the ownership transfer registration on each of the instant real estate was detrimental to the creditors, but was subject to disposition on July 25, 2003.

(6) On July 18, 2003, immediately before the filing of the lawsuit seeking revocation of the above fraudulent act, Nonparty 4 notified the Plaintiff that Nonparty 1 discovered each of the instant real estate which was hidden by Nonparty 1. Accordingly, on September 4, 2003, the Plaintiff also filed the lawsuit of this case on December 17, 2003, following the Seoul District Court 2003Kadan179605 decided that the right to claim revocation of the ownership transfer registration of each of the instant real estate was the right to be preserved.

D. According to the above facts, Nonparty 3, the representative director of the Plaintiff, was doubtful that Nonparty 1 was deprived of property deduction from around October 200 to avoid liability due to the bankruptcy of Nonparty 2 limited partnership company, but at the time, Nonparty 3 seems to have failed to know about the details of the property disposed of by Nonparty 1 in detail, and it appears that Nonparty 5 and Nonparty 4 were not aware of the details of the case filed by Nonparty 4. In light of the above facts, it is insufficient to recognize that the Plaintiff was aware of the intent of the fraudulent act of this case and the obligor’s intentional death before the first year of the filing of the lawsuit in this case, and there is no other evidence to acknowledge this otherwise. The Plaintiff was aware of the fraudulent act of this case around July 18, 2003 upon receipt of the notification that Nonparty 1 was aware of the fact that Nonparty 4 had found each of the real property of this case concealed by Nonparty 4.

Therefore, since the lawsuit of this case was filed within one year from the date on which the plaintiff became aware of the fraudulent act, the defendant's main defense is without merit.

3. Judgment on the merits

A. Summary of the parties' arguments

The plaintiff asserts that although the non-party 1, who was the general partner, was jointly and severally liable for all debts of the non-party 2 limited partnership company, the non-party 1, who was the general partner, concluded a payment contract with the defendant, who was the death on August 17, 200, immediately before the bankruptcy, and completed the registration of ownership transfer due to the reason, constitutes a fraudulent act.

On the other hand, the defendant asserts that the lawsuit of revocation of fraudulent act in this case did not exist since the decision to authorize composition against the non-party 2 limited partnership company became final and conclusive, and as the non-party 1 did not assume the liability as the general partner of the limited partnership company.

B. Determination

(1) When the general partner with unlimited liability of a limited partnership company is unable to fully repay the company's obligations with its assets or when compulsory execution on the company's assets is not effective (Articles 269, 212 (1) and (2) of the Commercial Act); when the company has sufficient means to repay its obligations and it is easy to execute its obligations (Article 269, Article 212 (3) of the Commercial Act); and when it is easy to do so, the general partner with unlimited liability of the limited partnership company bears direct, joint, and unlimited liability to the creditors of the limited partnership company; however, the limited partnership company bears unlimited and complementary liability to the limited partnership company's obligations (see Supreme Court Order 2003Ma28, Jun. 25, 2003). Thus, even in the case of the limited partnership company's commencement of composition procedures with respect to the limited partnership company, the partner who is liable for the company's obligations shall be liable to the composition creditor within the scope set by composition [Article 269 of the former Bankruptcy Act (amended by Act No. 7428, Mar. 31, 209). 28).

(2) Regarding the instant case, the Plaintiff is a creditor against the non-party 2 limited partnership company, and the non-party 1 is a general partner of the non-party 2 limited partnership company, and in order for the non-party 1 to assume the responsibility for the Plaintiff to repay the obligations of the non-party 2 limited partnership company, it is not possible to fully pay the obligations with the property of the non-party 2 limited partnership company or compulsory execution against the property of the non-party 2 limited partnership company

However, as seen earlier, the non-party 2 limited partnership applied for the commencement of composition to the Suwon District Court on March 22, 2002 and received the decision to authorize the commencement of composition on May 29, 2002 and confirmed on March 16, 2004 upon the decision to authorize the commencement of composition on July 29, 2002. Under the conditions for the composition approval decision, composition claims against a person other than a financial institution shall be reduced by 35%, and the principal shall be repaid equally from 2006 to 2011, and interest shall be exempted. Thus, the debt against the plaintiff of the non-party 2 limited partnership was exempted, the principal shall be reduced by 35%, the interest shall be exempted, and the remaining principal shall be paid in equal installments from 2006 to 2011.

Therefore, since the debt fulfillment period against the plaintiff of the non-party 2 limited partnership company has not yet arrived at around the date of the closing of argument in the trial of this case, it cannot be deemed that the property of the non-party 2 limited partnership company cannot be fully paid out or compulsory execution against the property of the non-party 2 limited partnership company is not effective. As a result, it cannot be deemed that the non-party 1, the general partner of this case, was liable for the debt repayment to the plaintiff of the non-party 2 limited partnership company. Thus, the lawsuit of this case constitutes a case where the claim for the creditor'

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition.

Judges in the appellate trial (Presiding Judge) Kim Jong-soo