Contract establishing collateral security upon request for deferment of collection is not a fraudulent act.

At the time of the establishment of security for tax payment, it cannot be deemed that there is a high probability that the plaintiff's claim for indemnity should be established, and it constitutes a bona fide beneficiary

Article 18 (Security for Deferment of Tax Collection)

2017 Ghana 5202855 Revocation of Fraudulent Act

OGuarantee Fund

Republic of Korea and one other

July 17, 2018

August 14, 2018

1. The contract to establish a right to lease on a deposit basis on March 16, 2017 between Defendant ChoO and Nonparty KimO (resident registration number: 610103-1*****) shall be revoked.

2. The defendant assistantO shall:

A. Nonparty KimO transferred to Nonparty 2 the right to claim the distribution of each real estate listed in the separate sheet 2017-******* in accordance with the public sale procedure, and (b) notify Nonparty OO of the fact of assignment of claims listed in the above paragraph (a).

3. The plaintiff's claim against the defendant Republic of Korea is dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Cho-O shall be borne by Defendant Cho-O, while the part arising between the Plaintiff and the Defendant Korea shall be borne by the Plaintiff.

Cheong-gu Office

Claim against the ChoO: as set forth in paragraphs (1) and (2) of this Article.

Claim against Defendant Republic of Korea: Revocation of the mortgage agreement on July 20, 2016 on each real estate listed in the separate sheet between Defendant Republic of Korea and Nonparty KimOO on July 20, 2016. Defendant Republic of Korea transfers to Nonparty KimO the right to claim a distribution amount held by Defendant Republic of Korea in accordance with the procedures for public auction set forth in the order of Paragraph 2, and notifies OO management corporation of the assignment

1. Basic facts

(a) Conclusion of a credit guarantee contract;

1) 원고는 2015. 6. 30. 조명기기 제조업체인 소외 XXXXX 주식회사(대표이사 김△△, 이하 'XXXXX'라 한다)와 사이에 아래 표 기재와 같이 신용보증계약(이하 '이 사건 보증계약'이라 한다)을 체결하였고, XXXXX은 이 사건 보증계약에 기한 신용보증서를 제출하여 OOOO은행으로부터 중소기업자금대출(이하 '이 사건 대출'이라 한다)을 받았다.

2) XXXXX의 종전 대표이사이자 실제 경영자인 소외 김OO는 이 사건 각 보증계약에 따라 XXXXX이 원고에게 부담하는 구상금 채무를 연대보증하였다.

(b) Occurrence of a credit guarantee accident and subrogation;

XXXXX은 2017. 3. 16.자로 회생신청을 신청하고, 2017. 3. 23.자로 당좌거래가 정지되는 신용보증사고가 발생하였다. 이에 원고는 이 사건 보증계약에 따라 2017. 5. 19. OOOO은행에 1,504,753,934원을 대위변제하였고, 당일 1,174,740원을 회수하여 현재 대위변제 구상채권의 잔액은 1,503,579,194원이고, 위 회수한 금액에 대한 확정손해금은 321원(1,174,740원 × 10% × 1일/365일)이다. 그 외 원고는 구상권 행사 또는 보전을 위하여 보험료 및 법적절차비용 등으로 8,414,197원을 지출하였다.

(c) Establishment of a collateral security;

1) XXXXX 주식회사는 2016. 7. 22. 피고 대한민국(소관 OO세무서)에 2016. 7. 31.이 납부기한인 국세 114,440,450원에 대한 징수유예를 신청하였고, 피고 대한민국은 소외 김OO와 사이에 별지 목록 기재 각 부동산(이하 '이 사건 각 부동산'이라 한다)에 관하여 채권최고액을 138,000,000원으로 하는 2016. 7. 20.자 근저당권설정계약(이하 '이 사건 근저당권설정계약'이라 한다)을 등기원인으로 삼아 OO지방법원 OO등기소 2016. 7. 27. 접수 제OOOOO호로 근저당권설정등기를 마쳤으며, 위 징수유예신청을 승인하였다.

2) On March 16, 2017, Nonparty KimO entered into a lease on a deposit basis (hereinafter referred to as “right to lease on a deposit basis”) on each of the instant real estate, which is the only property owned by Nonparty KimO, with Defendant ChoO in excess of the obligation, and completed the registration of establishment of a right to lease on a deposit basis in Defendant ChoO as the OOOOOO on March 17, 2017.

(d) Related lawsuits;

2014. 4.경 소외 김OO의 연대보증하에 XXXXX의 관계회사인 OOOO 주식회사를 위하여 신용보증약정을 하였다가 원고와 마찬가지로 보증채무를 이행하여 소외 김OO에 대하여 구상금 채권을 가지게 된 OO보증기금도 소외 김OO 및 피고들을 상대로 이 사건 각 부동산에 대하여 이루어진 이 사건 근저당권설정계약과 전세권설정계약에 대하여 사해행위취소를 구하는 소송을 제기하였는데(서울중앙지방법원 2017가합OOOOOO호), 2018. 6. 8. 위 사건에서 피고 대한민국에 대한 청구는 기각하고, 피고 조OO과의 사이에 체결된 전세권설정계약을 취소하는 판결이 선고되어 그 무렵 확정되었다.

[Ground of recognition] Facts without dispute, Gap 1 through 7 evidence, Eul 1 and 2 evidence (including numbers), the fact inquiry results against the Court Administration Office, the whole purport of the pleadings [the defendant O's deemed confessions]

2. Determination

A. Claim against Defendant ChoO

According to the above facts of recognition, the contract to establish a right to lease on a deposit basis of this case constitutes a fraudulent act detrimental to other creditors and is presumed to have been maliciously committed by Defendant ChoO, so the contract to lease on a deposit basis of this case should

B. Claim against Defendant Republic of Korea

1) In principle, a claim that can be protected by the obligee’s right of revocation requires that an act was conducted prior to the occurrence of an act that can be deemed a fraudulent act. However, there is a high probability that there was a legal relationship that has already been based on which the claim was established at the time of the fraudulent act, and that the claim should be established in the near future in the near future. In cases where a claim has been created by realizing the probability in the near future, the relevant claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 201

2) In light of the foregoing legal doctrine, the instant mortgage contract was concluded on July 20, 2016, and the Plaintiff did not have any claim for reimbursement against Nonparty KimO as of July 20, 2016. However, as seen earlier, the instant credit guarantee agreement was concluded, which is the legal relationship that forms the basis of the claim for reimbursement.

However, in order to become a preserved claim for revocation of a fraudulent act, there is a lack of the existence of a legal relationship that serves as the basis for the establishment of the claim, and there is a high probability as to the establishment of the claim in the near future. In this case, it is difficult to view that there was a high probability of the Plaintiff’s claim for indemnity at the time of the conclusion of the instant mortgage contract, which is about eight months prior to the occurrence of the Plaintiff’s claim for indemnity against KimO, and there is no evidence to acknowledge this.

Therefore, the Plaintiff’s assertion that the instant mortgage contract constitutes a fraudulent act by making the aforementioned claim for indemnity as the secured claim does not need to further examine the remainder of the issues (In addition, Defendant Republic of Korea appears to have concluded the instant mortgage contract with the security of tax payment instead of having granted deferment of collection as prescribed by the Framework Act on National Taxes and the National Tax Collection Act in order to secure tax claims. Since Nonparty KimO was not a taxpayer, Defendant Republic of Korea appears to have not been aware of the excess of the obligation of Nonparty KimO, the secured creditor, and thus, it is reasonable to view Defendant Republic of Korea as a bona fide beneficiary who did not know that the instant mortgage contract constitutes a fraudulent act)

3. Conclusion

Therefore, the plaintiff's claim against the defendant Cho-O is justified, and the plaintiff's claim against the defendant is dismissed as it is without merit. It is so decided as per Disposition.