(영문) 대법원 2016.7.7.선고 2015다249000 판결

1. In determining whether a fraudulent act constitutes a subject of revocation by a creditor, 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 a debtor’s liability property for the general creditors. Therefore, only the balance obtained by deducting the amount of the secured claim held by other creditors from the value of the asset offered as a physical collateral shall be evaluated as an obligor’s active property (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12, 2012). In such cases, if several real estate are jointly mortgaged, the amount of the secured claim borne by each real estate is calculated by dividing the amount of the secured claim secured by the joint mortgage in proportion to the value of each real estate secured by the joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance. However, in cases where part of the several real estate is owned by the obligor and other parts are owned by the surety, the surety’s right to demand reimbursement against the obligor cannot be exercised the secured claim against the obligor.

Unless there are circumstances under which, barring any circumstance, the amount of secured debt borne by the obligor’s real estate is the total amount of secured debt of the joint mortgage to the extent of the value of the obligor’s real estate owned by the obligor. It is reasonable to view that the amount of secured debt borne by the obligor’s real estate owned by the surety is the remainder, excluding the amount of secured debt borne by the obligor’s real estate owned by the obligor as above, from the amount of secured debt of the joint mortgage. Such legal doctrine likewise applies to cases where a part of the joint real estate is owned by the obligor, and other shares are owned by the surety (see, e

2. In the instant case where the Plaintiff, a creditor of B, sought revocation on the ground that the instant sales contract between B and the Defendant was a fraudulent act, the lower court determined that: (a) at the time of the instant sales contract, the market price of B and the Defendant owned 1/2 shares of each of the instant real estate was 610 million won; and (b) at the time of the instant sales contract, the obligor, a new bank, was established on the instant real estate at the time of the instant sales contract; and (c) the amount of the secured claim was 50 million won; and (b) barring any special circumstance where the Defendant cannot exercise the right to indemnity against B, the amount of the secured claim of the instant real estate, which was provided to the general creditors’ joint collateral, is limited to the remainder after deducting the total amount of the secured claim of the instant secured claim of the instant real estate; and (d) as at the time of the instant sales contract, the amount of secured claim of the instant real estate exceeds KRW 500 million,000,000,00

3. However, examining the facts acknowledged by the court below in light of the legal principles as seen earlier, since there is no assertion or evidence on the fact that B, a person who has pledged the property to secure another's property to secure another's property, is unable to exercise the right to indemnity against the defendant, the amount of secured debt held by B, among the real estate in this case, shall be deemed as KRW 195 million, excluding the amount of secured debt held by B, the debtor's share, from KRW 50 million, the amount of secured debt held by B, excluding the amount of the secured debt held by B, which is the debtor's share, from the amount of the secured debt held by B, constitutes the property held by the general creditors.

Nevertheless, contrary to the facts found, the lower court determined that the amount of secured debt of the instant right to collateral security, which should be deducted within the scope of the property held by the Defendant at the time of the instant sales contract, exceeds the value of the shares owned, and that the instant sales contract does not constitute a fraudulent act. In so determining, the lower court erred by misapprehending the logical and empirical rules and the legal doctrine on the establishment of fraudulent act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.