Plaintiff

Defendant (Attorney Park Jong-sik, Counsel for the defendant-appellant)

September 23, 2009

Suwon District Court Decision 2008Gadan39670 Decided April 27, 2009

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On May 2, 2007, the contract to establish a mortgage concluded on May 2, 2007 between the Defendant and Nonparty 1 is revoked. The Defendant, on June 19, 2008, expressed his/her intention to transfer the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of property

2. Purport of appeal

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

1. Facts of recognition;

(a)the existence of preserved claims;

On August 17, 2005, the Plaintiff filed a lawsuit against Nonparty 1 seeking payment of the goods amounting to KRW 9,841,90,00 from the Incheon District Court Decision 2005Gada37994, and received a recommendation for performance from the above court to “ Nonparty 1 shall pay to the Plaintiff the amount equivalent to KRW 9,841,90 and the annual amount equivalent to KRW 20% from August 25, 2005 to the date of full payment.” The above decision became final and conclusive on August 17, 2005.

B. Nonparty 1’s act of establishing a collateral security

On May 2, 2007, Nonparty 1 entered into a mortgage agreement with the Defendant as to the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) in order to secure the debt for the purchase of goods against the Defendant of Nonparty 2, who is a punishment, on May 2, 2007. On May 14, 2007, Nonparty 1 entered into a mortgage agreement with the Defendant as to the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”). On May 14, 2007, Nonparty 1 completed a mortgage registration with the Defendant

C. The financial status of Nonparty 1

Non-party 1 did not have any other property than the instant real estate, and at the time of the establishment of the said right to collateral security, provisional seizure, seizure, and collateral security was established as follows.

(1) Attachment of November 18, 2004 by Vice Governors of Incheon National Health Insurance Corporation.

(2) The provisional attachment of May 19, 2005 (the claim amount of Incheon District Court 2005Kadan12301, 900) by the plaintiff

(3) A seizure of November 4, 2005 by the Republic of Korea (Seoul Incheon National Tax Office)

(4) Provisional attachment of Non-party 3 corporation on October 4, 2006 (the Suwon District Court 2006Kadan8156, the claimed amount of KRW 50 million)

(5) Korea Life Insurance Co., Ltd. on October 8, 2004

(d) Procedures for public auction and distribution disposition; and

With respect to the above real estate, the public sale procedure conducted by the head of Incheon District Office of Korea Asset Management Corporation (Serial No. 1), on May 20, 2008, the above real estate was sold by public auction to Nonparty 4 on May 20, 2008. On June 19, 2008, the Plaintiff submitted a written request for the report of the right and the request for the distribution as to the total amount of the principal and interest of the above goods price claim amounting to KRW 13,778,60, and submitted a written request for the report of the right and the distribution. On June 19, 2008, a distribution statement was prepared to distribute KRW 10,106,420 out of KRW 17,431,471,471 among the amount allocated to the Defendant by the Plaintiff, and reserved the payment of the above distribution amount to the Defendant (=13,778,600,3,672,180).

【Ground of recognition】 In the absence of dispute, Gap’s evidence 2, Gap’s evidence 4, 5, Gap’s evidence 7-2 through 5, Eul’s evidence 1 through 3, and 6-8, the purport of the whole pleadings and arguments

2. The occurrence of the right to revoke the fraudulent act;

The act detrimental to the creditor who is the object of creditor's right of revocation refers to an act which is the object of property right, and thereby exceeds the debtor's passive property or lacks debts. According to the evidence No. 3-2 and evidence No. 7-4, it is acknowledged that the real price of the real estate of this case provided by the Ministry of Land, Transport and Maritime Affairs around April 2007, which was around the time when the above contract was concluded by the non-party No. 1, it is 14,791,00 won. The sale price of the real estate in the above public sale procedure is 114,791,00 won. The non-party No. 1's passive property is 1's debt as well as the above No. 4,840,90 won [the non-party No. 1's debt amount is 50,000 won, which is more than the defendant's debt amount at the time of the above public sale procedure, it is not proved that the above secured debt amount is more than the above 1's debt amount.

On the other hand, the defendant asserts that the plaintiff cannot exercise his right of revocation on the ground that, prior to the completion of the registration of establishment of a neighboring mortgage in the name of the defendant on the above real estate, the plaintiff completed the registration of provisional seizure and obtained equal distribution in the qualification of the defendant and the general creditor.

On May 23, 2005, the plaintiff completed a provisional seizure registration that covers the right to preserve the goods proceeds amounting to KRW 9,841,900 on the above real estate, and on May 14, 2007, the registration of establishment of a neighboring establishment in the name of the defendant was completed on the above real estate on May 14, 2007, and the defendant received equal distribution in the order of the plaintiff and the defendant in the above public sale procedure. However, as the defendant was not a general creditor of the non-party 1 but a creditor against the non-party 2, who was a creditor against the non-party 2, only by the non-party 1's act of creation of a collateral security right, the defendant could be a responsible property that guarantees the defendant's obligation to the non-party 2. Thus, the plaintiff cannot be deemed to have suffered any disadvantage due to the

Next, on May 31, 2007, the defendant concluded a collateral security contract with the plaintiff in order to secure the claim for the purchase price of goods of KRW 45,637,326 on the non-party 2. Thus, at the time of the above collateral security contract, the non-party 1 did not know that the act of creation of the collateral security contract of KRW 45,637,326 was harmful to the plaintiff, which is the creditor. However, there is not sufficient evidence to acknowledge that the defendant is a bona fide beneficiary, and there is no other evidence to support this. Thus, the defendant's defense is without merit

3. Methods of reinstatement;

In the event that a mortgage contract is cancelled as a fraudulent act, if another person acquires ownership through a public sale procedure and the registration of creation of mortgage was cancelled, it is impossible to return the original property, and thus, it is ordered to restore it to its original state by compensation for value. If the amount to be distributed in a public sale procedure is determined but the beneficiary is not actually paid the amount, it is ordered to notify the debtor of the transfer of the claim for prohibition of distribution and the transfer of the claim (see Supreme Court Decision 97Da8687 delivered on October 10,

Therefore, the above mortgage contract between the non-party 1 and the defendant should be revoked because it constitutes a fraudulent act, and the defendant restores the original state to the original state, the defendant expresses to the non-party 1 the intention of the transfer of the claim regarding the claim for prohibition of distribution of KRW 10,106,420, which was not satisfied by the plaintiff's claim, out of KRW 17,431,571, which was distributed to the defendant based on the above mortgage in the public sale procedure, and the Korea Asset Management Corporation has a duty to notify the head of Incheon branch office of the above fact of the transfer of the claim (the plaintiff asks for the declaration

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment of List]

judge last head of the (Presiding Judge) Lee-hee