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1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
Plaintiff’s assertion
The summary of B, a representative director of D, has caused the shortage of creditors' joint security by concluding the instant mortgage contract on the instant apartment, which is one of his own property, and completing the registration of establishment of a mortgage on the instant apartment, which is the only property under excess of his obligation, to the Defendant. Therefore, the instant mortgage contract should be revoked as a fraudulent act.
However, since the distribution schedule of this case was prepared on the premise that the mortgage contract of this case is valid, it should be changed to distribute the amount of KRW 90,758,326 to the defendant in the distribution procedure of the above voluntary auction case to the plaintiff.
In a case where a legal act on any real estate in the judgment on the cause of a claim constitutes a fraudulent act, in principle, the fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as cancellation of ownership transfer registration. However, in a case where a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be established only within the extent of the balance
(See Supreme Court Decision 97Da6711 delivered on February 13, 1998. Accordingly, in a case where a real estate on which a mortgage is established is transferred by a fraudulent act, such fraudulent act is established within the extent of the value of the real estate, namely, the value of the real estate, within the extent of the balance obtained by deducting the secured claim amount of the mortgage from the market value (not consistent with the publicly notified land value). If the secured claim amount exceeds the value of the real estate
(See Supreme Court Decision 96Da23207 delivered on October 29, 1996, etc.). In light of these legal principles, according to the records of evidence Nos. 5, 6, and 19 as to the Plaintiff’s assertion, the market price of the apartment of this case was 270,000,000 around November 201, 201, and at the time of the instant mortgage contract, the apartment of this case was 270,000,000.