Korea Credit Guarantee Fund (Attorney Cho Jae-soo et al., Counsel for the plaintiff-appellant)

National Bank of Korea (Law Firm Western, Attorneys Lee Byung-hun, Counsel for defendant-appellant)

December 22, 2009

1. The defendant shall pay to the plaintiff 45,361,172 won with interest rate of 20% per annum from October 20, 2009 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. As to Geumcheon-gu Seoul (hereinafter “the instant real estate”), Nonparty 2 concluded a mortgage contract with the Defendant on February 22, 2005 with the Seoul Southern District Court’s registration office received by the Defendant under Article 1559 (hereinafter “the instant priority mortgage contract”), and on October 1, 2008, concluded a mortgage contract with the Defendant with the maximum debt amount of KRW 130,000,000 between the Defendant and the Defendant, and completed the registration of the establishment of a neighboring mortgage (hereinafter “the instant mortgage”) under Article 85917 of the same registry office to the Defendant (hereinafter “the instant mortgage”).

B. In addition, the non-party 2 entered into a sales contract with the non-party 1 on September 26, 2008 on the instant real estate and completed the registration of ownership transfer with the non-party 1 on October 1, 2008.

C. On January 13, 2009, the Defendant applied for a discretionary auction of real estate based on the instant senior mortgage, and accordingly, on January 13, 2009, the Seoul Southern District Court 2009,522 commenced the procedure for the discretionary auction of real estate concerning the instant real estate (hereinafter “related auction case”).

D. In the Seoul Central District Court case No. 2008Gahap117735 filed by the Plaintiff against the Defendant and Nonparty 1, etc. (hereinafter “transfer lawsuit”), April 17, 2009, the judgment of the court below was finalized on May 209 as it became final and conclusive on the following grounds: (a) revoked the instant mortgage contract; and (b) the Defendant implemented the procedure for registration of cancellation of the registration of cancellation of the ownership transfer registration of the instant real estate; (c) revoked the sales contract concluded on September 26, 2008 between Nonparty 2 and Nonparty 1; and (d) Nonparty 1 fulfilled the procedure for registration of cancellation of ownership transfer registration to Nonparty 2 (the date of closing the pleadings is March 27, 2009); and (d) the aforementioned judgment became final and conclusive on May 209.

E. The instant real estate was sold at a voluntary auction on July 17, 2009, and the registration of the establishment of the instant real estate was cancelled due to the sale due to the voluntary auction on the same day.

F. On August 7, 2009, in the relevant auction case, a distribution schedule was prepared with the content that distributes KRW 45,361,172 to the Defendant regarding the instant right to collateral security, and the Defendant received the said dividends on August 18, 2009.

[Ground of recognition] The fact that there is no dispute, entry of Gap's 6 through 11, the purport of whole pleading

2. The assertion and judgment

A. The party's assertion

(1) Plaintiff

Since the mortgage contract of this case was revoked by the previous final judgment of the lawsuit, the defendant is obligated to pay the plaintiff the amount of 45,361,172 won and delay damages equivalent to the dividend that the defendant received as compensation for value.

(2) Defendant

Inasmuch as the Plaintiff obtained a final and conclusive judgment in favor of the Plaintiff by seeking the cancellation of the registration of creation of the neighboring property in the previous lawsuit, seeking compensation for value through the instant lawsuit is contrary to res judicata of the final and conclusive judgment of the previous lawsuit, and the instant lawsuit is unlawful as there is no benefit of protection of rights.

B. Determination

(1) In the absence of special circumstances, such as that where a third party acquires a mortgage, superficies, etc. on an object after a fraudulent act, the creditor may seek compensation equivalent to the value against the beneficiary by means of restitution, and may seek direct performance of the registration procedure for transfer of ownership in the future of the debtor, barring special circumstances, such as that the beneficiary may transfer the object to the original state without any restriction on mortgage, etc. In this case, the right to claim restitution is determined as one of the original return and the equivalent compensation at the option of the creditor at the time of the conclusion of the arguments at the trial court. In a case where the creditor becomes final and conclusive by claiming the return of the original object as a fraudulent act revocation and restitution, even if it becomes impossible for the creditor to achieve the objective of return of the original object for any subsequent reason, the right to claim restitution cannot be again exercised and thus, no benefit in the protection of rights is allowed (see Supreme Court Decision 2004Da54978, Dec. 7,

(2) However, in full view of the following, the instant lawsuit cannot be deemed as going against the res judicata effect of a final and conclusive judgment of the previous lawsuit, or there is no benefit to protect the rights.

(A) The closing date of pleadings in the previous lawsuit is March 27, 2009. The real estate of this case was sold at a voluntary auction in the relevant auction case on July 17, 2009, and thereby, it became impossible for the Plaintiff to cancel the registration of creation of creation of mortgage in the previous lawsuit of this case, which was sought by the Plaintiff due to the return of the original property.

(B) If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary or subsequent purchaser is obligated to return the object of the fraudulent act to the debtor as restitution, and thus, the return of the original object is in principle in the form. If it is impossible or considerably difficult to return the original object, the beneficiary or subsequent purchaser shall compensate for the equivalent amount of the value of the object of the fraudulent act

Although the registration of ownership transfer of the instant real estate was completed after the registration of ownership transfer of the instant real estate was completed in Nonparty 1, the Plaintiff sought for the cancellation of the registration of ownership transfer of Nonparty 1 on the ground of fraudulent act. Therefore, it cannot be said that the original return was impossible or considerably difficult because the registration of ownership transfer of Nonparty 1 was completed at the time of the closure of pleadings in the previous lawsuit, and even if the relevant auction case was in progress at the time of the closure of pleadings in the previous lawsuit, it cannot be said that the original return was impossible or remarkably difficult.

In other words, the plaintiff could not claim compensation for the value at the time of closing the argument of the previous lawsuit.

(C) Even if the relevant auction case was in progress, the Plaintiff could not claim compensation for value at the time of the closure of pleadings in the previous lawsuit, and in such a case, the Plaintiff cannot be deemed to have changed the purport of the claim in line with the progress of the relevant auction case before the previous lawsuit, and the Plaintiff cannot exercise the right to claim compensation for value on the ground that the Plaintiff did not do so would result in excessive restriction of the obligee’s right to claim restitution and unfair benefit to the beneficiary.

(D) The Defendant asserts that the benefits of protection of rights should be denied since the Plaintiff filed the instant lawsuit after the Plaintiff did not cancel the registration of creation of the instant collateral after the final and conclusive judgment of the previous lawsuit. However, the Defendant’s assertion that the benefits of protection of rights should be denied since it was actually distributed to the Defendant in order to obtain preferential repayment. However, the restoration to the original state is not a beneficiary’s duty and an obligee’s duty. Therefore, the Plaintiff’s failure to cancel the registration of creation of the instant collateral immediately after the establishment of the previous lawsuit became final and conclusive, and the Plaintiff’s exercise of the right of revocation cannot be deemed to have caused the

(3) Therefore, the instant mortgage contract was revoked as a fraudulent act, and the Defendant was paid KRW 45,361,172 with respect to the instant right to collateral security. Therefore, the Defendant is obligated to pay to the Plaintiff the amount calculated at the rate of 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from October 209 to the day of full payment, as well as the amount of KRW 45,361,172 with respect to the instant right to collateral security.

3. Conclusion

Therefore, the plaintiff's claim against the defendant shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Kim Yong-han