Korea Credit Guarantee Fund (Law Firm Mano, Attorney Lee Dong-Gyeong, Counsel for the plaintiff-appellant)

Defendant (Law Firm Tae, Attorneys Kim Ma-Un et al., Counsel for defendant-appellant)

May 7, 2014

1. On April 1, 2013, the reservation for return of substitute land concluded on April 1, 2013 between the Defendant and Nonparty 1 (resident registration number omitted), Seoul Jung-gu (resident address 3 omitted), 106 205 dong-dong 205 (new Dong-dong, ○○○ apartment) is revoked.

2. The defendant will implement the procedure for cancelling the provisional registration of security completed on April 3, 2013 by the receipt No. 45303 of the provisional registration of security, which was completed on April 3, 2013 with respect to the land specified in paragraph (1) to Nonparty 1.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. On June 24, 1998, the Plaintiff entered into a credit guarantee agreement with Nonparty 2 with the credit guarantee principal of KRW 420 million and up to June 23, 2000. Nonparty 1 and Nonparty 7 jointly and severally guaranteed the obligation under the said credit guarantee agreement to be borne by Nonparty 2 against the Plaintiff.

B. On June 24, 1998, Nonparty 2 obtained a loan of KRW 420 million from the Industrial Bank of Korea, and the Plaintiff guaranteed Nonparty 2’s loan obligations to the Industrial Bank of Korea based on the said credit guarantee agreement.

C. On October 13, 1999, Nonparty 2 rejected the payment of interest on the above loan obligations and lost the benefit of time. The Industrial Bank of Korea claimed the Plaintiff to discharge the guaranteed obligation. Accordingly, on December 30, 1999, the Plaintiff subrogated the Industrial Bank of Korea KRW 433,905,044 on behalf of the Plaintiff.

D. The Plaintiff filed a lawsuit claiming the amount of compensation on the ground that the remainder of the amount of subrogated payment was paid in part against Nonparty 2 and Nonparty 1 and Nonparty 7, a joint guarantor, in Gwangju District Court Decision 201Da5516, and the remainder of the amount of subrogated payment was KRW 185,398,590, and the amount of finalized damages for the amount of subrogated payment was 219,813,613, and Nonparty 2, Nonparty 1, and Nonparty 7 jointly and severally liable for 405,212,203 won and 185,398,59, and damages for delay from December 30, 1999. The above judgment became final and conclusive around that time.

E. On the other hand, on February 10, 2010, Nonparty 1 purchased 2.863/53/60 of the 1,959 square meters of land ( Address 1 omitted) in Yongsan-gu (hereinafter “instant land before the instant partition”) from Nonparty 3 on the other hand, for KRW 500,000,000,000. On April 8, 2010, Nonparty 1 completed the registration of ownership transfer for 2.863/53 of the land before the instant partition.

F. Nonparty 1 borrowed KRW 650,000,000 from the Defendant for interest rate of 9% per annum, and KRW 15,00,000 on November 26, 2010, KRW 30,000 on November 30, 201, and KRW 200,000,000 on July 27, 201. On April 18, 2012, Nonparty 1 and the Defendant made a promise to return the share of KRW 2.863,63, which is the share of Nonparty 1, in the instant land before the instant partition, to secure the payment of each of the above loans, with a view to making a promise to return the share of KRW 60,00,000,000 on November 26, 2010, KRW 300,000 on July 26, 2014, the district court completed the said promise to return the share of KRW 360,06363,64.636.

G. On September 16, 2012, on the instant land before the instant partition, the land was divided into co-ownership of 860 square meters in Ilyang-gu, Mangdong-gu ( Address 2 omitted) (hereinafter “instant land”). On the same day, Nonparty 1 was registered as the sole owner of the instant land on the ground of the division of co-ownership from Nonparty 4, Nonparty 5, and Nonparty 6, the right holder of the instant land before the instant partition, on the same day, on the ground of the division of co-ownership from Nonparty 4, Nonparty 5, and Nonparty 6.25/1959 of shares, Nonparty 4, Nonparty 5’s share, 272.6/1959 of shares, and Nonparty 6-25/1959 of shares, respectively, of the land before the instant partition.

H. On April 1, 2013, Nonparty 1 and the Defendant entered into a promise to return substitutes with the same content as the promise to return substitutes on April 18, 2012 (hereinafter “instant promise to return substitutes”) with respect to the instant land in order to secure the payment of each of the above loans (hereinafter “instant promise to return substitutes”), and as to the portion of 2.8663/53 out of the instant land, Nonparty 1 entered into a promise to return substitutes with respect to the instant land (hereinafter “instant promise to return substitutes”). After the cancellation of the provisional registration of the right to transfer substitutes as stated in the Paragraph, Nonparty 1 entered the registration of collaterals with respect to the instant land in order to obtain a high-level registration on April 3, 2013 as the receipt date45303 on April 3, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2 and Eul evidence 1 to 7 (including each number, if any, hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the cause of the claim

1) In determining whether a legal act by a joint and several sureties constitutes a fraudulent act, insofar as a creditor has preferential right to payment on a real estate owned by the principal debtor or a third party, as a right to collateral has been established in the future for the creditor with respect to the principal obligation, it does not constitute a fraudulent act in relation to other creditors, unless there are special circumstances (see Supreme Court Decision 2003Da13246, Jul. 8, 2003, etc.).

2) The non-party 1 who has jointly and severally guaranteed the obligation under the credit guarantee agreement with the plaintiff non-party 2 was already liable to the plaintiff for joint and several liability of 405,212,203 won or more to the plaintiff prior to the conclusion of the promise to return the substitute, and was liable to the defendant for a loan of 650,000,000 won or more to the defendant. The plaintiff entered into a promise to return the substitute land of this case with the defendant on April 1, 2013, and made a registration of the collateral security as of April 3, 2013 with the Goyang-gu District Court, Yangyang-dong District Court No. 45303, Apr. 3, 2013. As seen earlier, the fact that the non-party 1 owned the substitute land of this case as the only property at the time of the promise to return the substitute land of this case and the fact-finding on the testimony of the non-party 1 and the entire arguments of this court.

3) According to the above facts, the active property of Nonparty 1 at the time of the promise to return the substitute of this case is merely KRW 500 million, while the small property is not less than KRW 1 billion, and it is not deemed that the plaintiff has the right to preferential payment concerning the obligation under the credit guarantee agreement between the plaintiff and Nonparty 2, which is the principal obligation, and it is not likely that the plaintiff has the right to preferential payment. Thus, the act of Nonparty 1, who had already been in excess of the obligation, provides the land of this case to the plaintiff who is one of the creditors, as the creditor's claim security, constitutes a fraudulent act subject

4) Therefore, barring any special circumstance, the Defendant and Nonparty 1 are obliged to cancel the promise for return of substitute land concluded on April 1, 2013 with respect to the instant land by the exercise of the Plaintiff’s right of revocation, and the Defendant is obliged to perform the procedure for registration cancellation of provisional registration of collateral security completed on April 3, 2013 with respect to the instant land by the Goyang Branch District Court of Suyang Branch Branch Office of the Suyang Branch Office of Dayang Branch Office of 45303.

3. Determination on the defense, etc.

1) The Defendant had different knowledge about the existence of the Plaintiff’s claim against Nonparty 1, and did not take any preservative measure on the land before the instant partition or on the instant land. In particular, the Defendant loaned to Nonparty 1 the sum of KRW 650 million from November 26, 2010 to July 27, 2012, and entered into a promise for return of substitutes with respect to Nonparty 1’s share on April 18, 2012. The instant promise for return of substitutes is merely a substitute for the instant promise for return of substitutes on April 18, 2012, and the Defendant asserts that it is a bona fide beneficiary.

2) Comprehensively taking account of the statements in Eul evidence Nos. 1, 5, and 12 and the purport of the entire pleadings with the testimony of non-party 1, ○○ Construction Co., Ltd., which was substantially operated by non-party 1, entered into a supply contract at an amount of KRW 11.7 billion with respect to the newly constructed apartment and supplied imported stones, etc., the defendant was aware that the non-party 1 was the head of the company that transacted with ○○ Construction and the head of the High-Type Development Association, who was in a transaction with the non-party 1, the interest rate of KRW 9% per annum, the due date of payment of KRW 150 million,000 on November 26, 2010, KRW 300 million on October 30, 2010, KRW 2006,0000 on the land of this case and KRW 3680,000 on July 27, 2011, respectively.

3) However, in a case where a debtor's act of offering security to a third party constitutes an objective fraudulent act, the beneficiary's bad faith is presumed to have been committed, so unless the beneficiary proves that the act was bona fide at the time of the fraudulent act, the creditor may cancel the juristic act and claim restitution for its original status. In a case where the debtor's act of offering security to a third party constitutes a fraudulent act, there should be objective and objective evidence, etc. supporting the fact that the beneficiary was bona fide at the time of the fraudulent act, and it should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). However, in determining the debtor's intention of deception, it should be based on the circumstances at the time of the fraudulent act, as well as the debtor's endeavor to make reimbursement after the fraudulent act and the creditor's attitude after the act of offering security to a third party constitutes a fraudulent act.

4) According to the following circumstances, Gap evidence Nos. 1, 3, 5, and 6's testimony as to the non-party 1's share in the loan No. 6 and the non-party 1's testimony, the defendant's assertion that the non-party 1's share in the land before the division was not made for the return of the non-party 1's share in the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 6's non-party 2's non-party 1's non-party 6's non-party 2's non-party 1's non-party 6's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 6's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's damages.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and all of them are accepted, and it is so decided as per Disposition.

Judges O Jae Jae-sung (Presiding Judge)