In a case where an asset owned by an obligor is provided as a collateral security for another obligee’s claim, the method of assessing the obligor’s active property when determining whether a fraudulent act constitutes a fraudulent act / Where a part of several real estate on which a joint mortgage has been established is owned by the obligor and another part is owned by the surety, the method of calculating the amount of secured debt to be borne by the obligor or the surety’s real estate owned by the obligor, and whether the aforementioned legal doctrine likewise applies to a case where a part of the same co-owned

In determining whether a fraudulent act is subject to creditor’s revocation, if an asset owned by an obligor is provided as a physical collateral for another obligee’s claim, the portion provided as a physical collateral cannot be deemed as the obligor’s property for the general obligees. Therefore, if a joint collateral is established on several real estate, the amount of the secured claim held by another obligee should be assessed as the obligor’s active property. In such cases, barring special circumstances, barring any special circumstance, in calculating the amount of the secured claim on each real estate, the amount of the secured claim on each real estate is divided into the amount of the secured claim on each real estate subject to joint collateral in proportion to the value of the secured claim on each real estate subject to joint collateral in light of the purport of Article 368 of the Civil Act, barring any special circumstance, in cases where the secured claim on several real estate is owned by the obligor, and some other real estate is owned by the surety, the amount of the secured claim on the real estate owned by the obligor is equally applicable to the amount of the joint secured claim on the other real estate owned by the obligor.

Articles 368, 406(1), 481, and 482 of the Civil Act

Supreme Court en banc Decision 2010Da64792 Decided January 12, 2012 (Gong2012Sang, 253) Supreme Court en banc Decision 2012Da5643 Decided July 18, 2013 (Gong2013Ha, 1561)

Plaintiff (Law Firm LLC, Attorneys Credit rating et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Non-case, Attorneys Ba-ho et al., Counsel for defendant-appellant)

Suwon District Court Decision 2013Na2703 decided October 18, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In determining whether a property owned by an obligor is a fraudulent act subject to revocation of creditor, if the property owned by another obligee is offered as a physical collateral for the obligor’s claims, the portion offered as a physical collateral cannot be deemed as the obligor’s property for the general creditors. Thus, only the balance of the property offered as a physical collateral minus the amount of claims secured by other creditors’ claims should be evaluated as the obligor’s active property (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12, 2012). In such cases, where several real estate are jointly mortgaged, the amount of claims secured by each real estate is calculated in proportion to the amount of claims secured by the joint collateral in proportion to the value of each real estate owned as a physical collateral in proportion to the amount of claims secured by the joint collateral (see, e.g., Supreme Court en banc Decision 201Da64792, Jan. 12, 2012).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Nonparty 1 and Nonparty 2 share 1/2 shares of each of the above buildings (hereinafter “instant shares” and Nonparty 2’s ownership of each of the above real property is also the “instant shares,” and the part owned by Nonparty 2 (which is each of the real property listed in attached Tables 8, 9, and 10 in attached Tables 8, 9, and 7 at the time of the original adjudication, which is owned by Nonparty 2, together with each of the real property listed in attached Tables 5, 6, and 7 at the time of the original adjudication, which is owned by Nonparty 2).

B. As to the instant real estate and the instant shares, on April 15, 1999, the joint establishment registration of a mortgage (hereinafter “mortgage”) consisting of the debtor Nonparty 1, the mortgagee 1, the mortgagee-mortgage-based livestock cooperative, the maximum debt amount of 85,00,000, the joint establishment registration of a mortgage (hereinafter “mortgage”) was completed on August 19, 2009, the joint establishment registration of a mortgage (hereinafter “mortgage”) consisting of the debtor Nonparty 1, the mortgagee 1, the mortgagee-mortgage-based livestock cooperative, the maximum debt amount of 390,000,000, the joint establishment registration (hereinafter “mortgage-mortgage”) was completed on April 15, 1999 to April 18, 2008, the debtor Nonparty 2, the mortgagee-mortgage-based livestock cooperative, the aggregate of the maximum debt amount of 3,307,000,0000 won.

C. On September 5, 2011, Nonparty 2 entered into a sales contract to sell each real estate listed in the separate sheet Nos. 1 through 4 at the time of original adjudication (hereinafter “instant sales contract”) and completed the registration of ownership transfer to the Defendant on September 6, 201.

D. At that time, the value of the instant real estate was KRW 1,726,06,880; the value of the instant share was KRW 1,252,726,880; and ③ the amount of the secured claim of the right to collateral security was KRW 1,393,312,026.

3. Examining the above facts in light of the legal principles as seen earlier, in the instant case where Nonparty 2 did not have any assertion or proof as to the fact that Nonparty 1 was unable to exercise the right to indemnity against Nonparty 2, or that Nonparty 1 was under special circumstances, Nonparty 2 is the debtor, and Nonparty 2 is the debtor, and the sum of the maximum debt amount of the right to collateral security (= KRW 85,000,000 + KRW 390,000 + KRW 1,252,726,80,00, not exceeding the value of the instant share owned by Nonparty 1, the debtor, and thus, there is no portion of the real estate owned by Nonparty 2, the secured debt amount of the right to collateral security, which is the secured debt amount of Nonparty 1, the secured debt amount of Nonparty 2, the secured debt amount of Nonparty 1, the secured debt amount of which does not exceed KRW 1,393,320,206,300,000.

4. If so, there is an inappropriate part in the reasoning of the judgment of the court below, but the court below is just in assessing the value of the instant real estate; (1) failure to deduct the amount of each secured claim as above; and (2) contrary to the legal principles as to the establishment of fraudulent act, which affected

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)