1. The plaintiff's claim against the primary defendant is dismissed.

2. Preliminary Defendant KRW 44,942,577 and this shall apply to the Plaintiff.

1. Basic facts

A. As to the instant land owned by the Deceased on September 26, 2017 by Defendant E (hereinafter “the deceased”), Defendant E was established with the maximum debt amount of KRW 90,000,000, and the debtor, the deceased, and the Defendant E, who was the mortgagee of the right to collateral security (hereinafter “the instant collateral security”).

B. On January 23, 2018, the Deceased was declared bankrupt by the Changwon District Court (2017Hadan1996), and on the same day, the Plaintiff was appointed as a trustee in bankruptcy of the Deceased, and on September 28, 2018, the Plaintiff became a trustee in bankruptcy in respect of the deceased’s inherited property.

C. The Defendant Company acquired the instant right to collateral security from Defendant E, and completed an additional registration to transfer the instant right to collateral security in the name of the Defendant Company on October 11, 2018.

On October 26, 2018, the instant land was sold in KRW 123,295,00 in the auction procedure of the G real estate G real estate in Yongsan-gu District Court, Changwon District Court. The court set the amount of dividends to the Defendant Company, the nominal owner of the instant right to collateral security, as KRW 44,942,577, and prepared a distribution schedule.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Summary of the parties' arguments

A. The Plaintiff’s assertion 1) The Deceased’s assertion as to the claim against the Defendant Company had set up the instant collateral security to Defendant E with an excessive debt around September 26, 2017. Such an act of the Deceased was under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”).

Article 391 subparag. 1 of the Act provides that the debtor's act of setting the right to collateral security of this case may be denied against the defendant E, who is the beneficiary of the right to collateral security of this case, and the subsequent purchaser of the right to collateral security of this case.

Therefore, the Defendant Company transferred to the Plaintiff the dividend payment claim based on the instant mortgage to its original state following the Plaintiff’s exercise of the right to set aside.