[1] In case where the amount of the secured claim on real estate exceeds the price of the real estate, whether the act of transferring it by the debtor constitutes a fraudulent act in relation to the general creditor (negative)

[2] Whether a fraudulent act constitutes a case where a debtor in excess of his/her obligation provided real estate to one of the creditors as security (affirmative)

[3] The scope of revocation of a fraudulent act where it is obvious for another creditor to demand a distribution or where the subject matter is indivisible

[1] If a security right is established on an object transferred by a debtor, only the remaining part of the object which remains after deducting the amount of the secured debt is deducted from the amount of the secured debt, and if the amount of the secured debt exceeds the price of the object, the transfer of the object cannot be deemed a fraudulent act.

[2] The act of a debtor in excess of his/her obligation to offer real estate owned by him/her to any one of the creditors as a claim security constitutes a fraudulent act in relation to other creditors, unless there are special circumstances.

[3] The scope of revocation of a fraudulent act may seek revocation even beyond the claim amount of the revocation creditor where it is apparent that another creditor will demand a distribution, or where there exist special circumstances such as inseparability of the subject matter.

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act / [3] Articles 406 (1) and 407 of the Civil Act

[1] [2] Supreme Court Decision 96Da23207 delivered on October 29, 1996 (Gong1996Ha, 3530) / [2] Supreme Court Decision 88Meu23186 delivered on September 12, 1989 (Gong1989, 1462) Supreme Court Decision 90Da27198 delivered on November 23, 1990 (Gong1991, 178) / [3] Supreme Court Decision 74Da2114 delivered on February 25, 1975 (Gong1975, 8349), Supreme Court Decision 75Da625 delivered on June 24, 1975 (Gong1975, 8559)

Plaintiff 1 and one other

Plaintiff 3 (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Defendant 1

Yongnam District Co., Ltd. (Attorney Kim Tae-jin, Counsel for the defendant-appellant)

Daejeon High Court Decision 94Na3054 delivered on January 16, 1997

All appeals by Plaintiffs 1 and 2 and Defendant 1 are dismissed. The costs of appeal are assessed against each party.

1. We examine the grounds of appeal by Plaintiffs 1 and 2.

According to the reasoning of the judgment below, the court below determined that the non-party, who was in excess of his debt, sold the real estate listed in the third list to the defendant company KRW 1,043,00,000 as stated in its holding, the value of the above real estate was KRW 952,08,770,000,000, which was the aggregate of the maximum debt amount at the time when the above real estate was registered for establishment of a mortgage at the time when the defendant company purchased the above real estate, and that the non-party's act of acquiring the above real estate was not more than 923,163,681, 739,93, 7893, 30,000,000 and the non-party's act of acquiring the above real estate was not more than the above general debt amount of the non-party's property, and that the non-party's act of acquiring the above real estate was not more than the above general debt amount of the above real estate at the time of acquisition of the above real estate.

In light of the records, the fact-finding of the court below is just, and there is no error of law such as violation of the rules of evidence, incomplete hearing, etc., as alleged in the theory of lawsuit. If a security right is established on the object transferred by the debtor, the property subject to the joint security of the general creditors is limited to the remainder after deducting the amount of the secured debt. If the amount of the secured debt exceeds the price of the object, the transfer of the object cannot be deemed a fraudulent act (see Supreme Court Decision 96Da23207 delivered on October 29, 196). The judgment below is just and there is no error of law in the misapprehension of legal principles as to fraudulent act. All arguments are without merit.

2. We examine Defendant 1’s grounds of appeal.

According to the court below's decision, the court below acknowledged that the above non-party's act of establishing collateral against the non-party company's credit debt amounting to KRW 450,00,000 on August 8, 1990 and the above non-party's act of offering the above non-party's credit amount amounting to KRW 200,000,000 on the non-party company's loan amounting to KRW 200,000,000 on the non-party company's loan amount to be repaid on behalf of the above non-party (hereinafter the non-party company) as a collateral for the above non-party company's loan amounting to 40 or more individuals including the plaintiffs to use the company operation funds, financial institution loans, debentures interest, etc. as collateral for the payment of the above non-party's debt amounting to KRW 40,00,000,000 on the non-party's loan amounting to the above non-party's debt amount.

In light of the records, the fact-finding of the court below is just and there is no error of law such as violation of the rules of evidence, incomplete hearing, etc., and the act of a debtor in excess of his/her obligation to provide real estate to any one of the creditors as a claim security constitutes a fraudulent act in relation to other creditors unless there are special circumstances (see Supreme Court Decision 88Da23186 delivered on September 12, 1989), and the judgment below is just and it is not erroneous in the misapprehension of legal principles as to fraudulent act and intent as otherwise alleged in the lawsuit.

In addition, the scope of revocation of a fraudulent act may be sought to revoke the claim even if it is obvious that other creditors demand a distribution or if there are special circumstances, such as the case where the object is indivisible. According to the records and factual relations established by the court below, since it seems evident that other creditors constitute a creditor group, the court below's order to revoke the claim in excess of the amount of the plaintiffs' claim is just and the court below did not err in the misapprehension of legal principles as to the scope of revocation of the fraudulent act, such as the theory of lawsuit, and incomplete deliberation, etc. The court below's decision cited in the grounds of appeal cannot serve as an appropriate precedent in this case, unlike the case.

3. Therefore, all appeals by Plaintiffs 1 and 2 and appeals by Defendants 1 are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)