Revocation of Fraudulent Act

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

2013Na2020197

Korea

Korea Land Trust Corporation

Seoul Central District Court Decision 2012Gahap536371 Decided September 5, 2013

September 3, 2014

September 26, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. Each copy of the separate sheet between the defendant and the ○○ corporation shall be entered in the separate sheet.

A trust contract concluded on November 23, 2009 with respect to movable property shall be revoked. The defendant shall be ○○○ shares.

section 1. Attached Table 1. For each of the real property listed in the Schedule 1.

Each transfer registration of ownership completed under No. 177014 of November 30, 2009 and the list 2. Each entry

Ji Government, District Court, Yangyang Branch of the High Military Court, 2009, No. 177015, Nov. 30, 2009

shall comply with each procedure for the cancellation registration of each transfer of ownership completed by the Corporation.

1. Basic facts

A. Status of the parties

1) The Plaintiff has a taxation claim of KRW 33,083,382,790 in total against ○○○ Incorporated Company (hereinafter referred to as “○○○”).

2) ○○○는 ◍◍◍ 주식회사, ◉◉◉ 주식회사(이하 위 두 회사를 '이 사건 시공사들'이라 한다)가 고양시 일산서구 탄현동 111-13 일대에서 시공한 일산임광ㆍ진흥아파트(이하 '이 사건 아파트'라 한다)의 분양시행사이다.

(b) Lending business funds;

1) On December 21, 2006, ○○○○ received a business loan within the limit of KRW 95 billion for the instant apartment sale business. The instant construction contractor agreed to accept the above principal and interest of loan when loss of due interest was made. In order to secure the above principal and interest of loan, the instant apartment construction contractor agreed to manage and dispose of real estate after completion of the instant apartment construction to secure the above principal and interest of loan, and the financial institutions agreed to be the first-class pledge right holder.

2) As the maturity of the above loan agreement has arrived, ○○○ entered into a new agreement on June 25, 2008 **** on June 25, 2008 *** on June 25, 2008 ******* on March 26, 2009 **** on March 26, 2009 for repayment of existing loans to a stock company and for raising additional business funds for the apartment sale business of this case (hereinafter referred to as “new bank”) with a new bank (hereinafter referred to as “this case’s loan and business agreement”). The new bank received a loan of up to 70 billion won from the new bank, and the construction company of this case also agreed to assume debt obligations for the above loan principle.

3) According to the instant loan and business agreement, ○○○ entered into a real estate trust agreement with the real estate trust company designated by the new bank for unsold goods and unpaid households for sale price, upon completion of the instant apartment, and entered into a trust agreement with the new bank for securing the principal and interest of the new bank * to secure the principal and interest of the new bank * the new bank as the first priority beneficiary, and to secure the unpaid construction cost (Article 8(2)).

4) 한편, ○○○와 이 사건 시공사들은 주식회사 국*은행(이하 '국*은행'이라 한다)과 이 사건 아파트 수분양자들이 국*은행으로부터 주택자금대출을 받을 수 있도록 협약을 체결하고 2007. 6. 13.경 국*은행에게 위와 같은 주택자금대출채무를 ◊◊◊원의 한도 내에서 연대보증하는 내용의 근보증을 하였다.다. 공사도급계약의 체결

1) ○○○는 2007. 6. 14.과 2007. 7. 10. 이 사건 시공사들과 이 사건 시공사들이 이 사건 아파트를 공사대금 ◊◊◊원(부가가치세 포함)에 건축하는 내용의 공사도급계약 및 공사도급 변경계약을 체결하였고, 그 후 2008. 7. 10. 이 사건 시공사들과 이 사건 아파트의 발코니 확장 및 창호공사를 ◊◊◊원(부가가치세 포함)에 시공하는 것을 주된 내용으로 하는 공사도급계약을 추가로 체결하였다.

2) 위 각 도급계약에 따라 이 사건 시공사들은 2009. 10. 7. 이 사건 아파트 신축공사와 발코니 확장 공사 등을 모두 마쳤으나, ○○○는 2009. 11. 23. 이 사건 신탁계약이 체결되기 전까지 총 공사대금 ◊◊◊원 중 ◊◊◊원만을 지급하고 나머지 공사대금 ◊◊◊과 지연손해금을 지급하지 못하였다.

D. On November 23, 2009, the time when the conclusion of the trust contract began to move into the apartment of this case, ○○○ entered into a real estate security trust contract (A type) and a new bank (B type) on the apartment of this case with the Defendant, * the new bank as the first, * the national bank as the second, and 568 households of the instant apartment of this case as the joint third priority beneficiary. On November 30, 2009, ○○○ concluded a trust contract on real estate (B type) on the 355 households of the instant apartment of this case (attached Form 2) with the joint beneficiary as the first priority beneficiary, and completed the registration of transfer of ownership by a trust as described in the purport of the claim as to each real estate listed in the attached list to the Defendant on November 30, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 3, Eul evidence 6 to 10, 24, 25 (including paper numbers), the purport of the whole pleadings

2. The reasoning of the judgment of the court on the plaintiff's assertion and the judgment on the ground of the claim is the same as the corresponding part of the reasoning of the judgment of the court of first instance, thereby citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Judgment on the merits

In full view of the contents of evidence No. 3-1 through 3, evidence Nos. 4-3 through 8-8, the fact that ○○○’s joint security against the obligees in the instant trust contract was insufficient is recognized as a whole.

However, according to the aforementioned facts and evidence, the trust contract of this case basically consists of the acts of performing the loan and business agreement of this case, and ○○○○ appears to have concluded the loan and business agreement of this case with the repayment of the existing loan of 20 billion won to continue the apartment sale business of this case. ② Unlike the loan and business agreement of this case in the case of A real estate security trust agreement, it was set as the second beneficiary of the National Bank. However, it was possible for ○○○○ to jointly and severally guarantee the debt of the house loan to the National Bank of this case from the beginning of this case and to take measures to preserve the entire apartment and the site of this case to collect the house loan of this case * the bank's apartment and the whole site of this case ○○○○○○○○ was in the situation of cancellation of the sale contract of this case and the return of large-scale apartment sale price due to this case's apartment, etc. It appears that the new apartment sale price of this case can only be seen that the new apartment sale price of this case can not be completed.

In full view of the above circumstances, ○○○ intended to continue the apartment sales business of this case by providing financing through the conclusion of the instant trust contract, securing the claim for construction cost of the construction company, and continuing the apartment sales business of this case is considered to have concluded the instant trust contract in view of the fact that continuing the apartment sales business of this case is the best method to recover the debt repayment ability and to reduce the creditor's damage, and it is also deemed that the instant trust contract was necessary to protect the buyers of the apartment of this case and to implement the sales contract.

Therefore, ○○○ does not intend to conclude the instant trust agreement, or it cannot be deemed that the instant trust agreement constitutes a fraudulent act. Therefore, the Plaintiff’s assertion is without merit without further review.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.