ASEAN Asset Management Loan Co., Ltd. (Law Firm, Attorney Song Il-il, Counsel for the defendant-appellant)

Defendant (Law Firm Han River, Attorney Jeong Jae-ho, Counsel for defendant-appellant)

October 19, 2016

Busan District Court Decision 2015Gadan209107 Decided March 30, 2016

1. Revocation of the first instance judgment.

2. The contract to establish a mortgage concluded on December 5, 201 between the Defendant and the Nonparty regarding the real estate stated in the attached list shall be revoked.

3. The defendant shall pay to the plaintiff 130,000,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

4. All costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance is revoked. The first instance court’s decision is revoked primarily. The defendant shall pay to the plaintiff 130,000,000 won with the interest of 15% per annum from November 7, 2015 to the date of full payment (the plaintiff added the conjunctive claim at the trial).

1. Facts of recognition;

A. Nonparty 1, Co., Ltd. (hereinafter “BS”) obtained six loans from the Industrial Bank of Korea as listed below (hereinafter “instant loan claims”), and the Nonparty, the representative director of which was the Nonparty, jointly and severally guaranteed the loans.

On April 29, 2010, the amount of loans for the use of the funds for items of funds included in the main sentence of this Act and on March 31, 2018, for the loans for small and medium enterprises facilities of KRW 1,300,000,000 on April 31, 2018, " "70,000,000" on March 26, 2018, on March 26, 2010, "1,200,000,000 for local restructuring facilities loans of KRW 1,00,00,000 on September 15, 2018, Nonparty 60,000 on September 30, 207, 200 for new construction of factories for promotion facilities loans of KRW 350,000,000,00 on November 29, 2018, Nonparty 203.

B. When the non-party company delays the repayment of the loan, the Industrial Bank of Korea notified the Credit Guarantee Fund that provided a credit guarantee for a loan to the non-party company on March 22, 2012, and applied for a voluntary auction on April 3, 2012 for real estate owned by the non-party company on the ground of the loss of time limit or other reasons.

C. On May 29, 2012, the Industrial Bank of Korea was subrogated by the Korea Credit Guarantee Fund to KRW 617,500,000 out of the instant loan claims. The Industrial Bank of Korea, on November 27, 2012, transferred the remainder of the claims, other than the amount repaid, in sequence, to the Korea-U.S. Specialized in the N.S. Asset-Backed Securitization on December 21, 2012.

D. In the course of the voluntary auction of real estate held in the possession of the non-party company, the transferee of the instant loan claim was apportioned KRW 1,955,705,985 as principal and interest interest on April 4, 2013. The remainder of the claim except for the dividends paid out was finally transferred to the Plaintiff on December 5, 2014.

E. On January 19, 2015, the Plaintiff filed an application for the payment order against the non-party company and the non-party as Seoul District Court No. 2015Hu847. On January 19, 2015, the said court rendered a payment order stating that “the non-party company and the non-party jointly and severally shall pay 5% annual interest from April 5, 2013 to February 13, 2015 and 20% interest per annum from the next day to the date of full payment” was finalized on February 28, 2015 (hereinafter “the instant claim”).

F. Meanwhile, on December 5, 2011, the Defendant concluded a mortgage agreement with the Nonparty on the real estate listed in the separate sheet owned by the Nonparty (hereinafter “instant real estate”) (hereinafter “instant mortgage agreement”), and completed the registration of the establishment of a collateral of KRW 130,000,000 with the Busan District Court’s receipt of the maximum debt amount No. 71438, Dec. 6, 201 (hereinafter “the registration of the establishment of a collateral”) (hereinafter “the registration of the establishment of a collateral”).

G. On November 6, 2015, the Defendant received dividends of KRW 130,00,000 in the order of 3rd priority as a mortgagee on the date of distribution as of November 6, 2015, when the auction was conducted at Busan District Court 2015, 9225 with respect to the instant real estate.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 12, 13, 15, Eul evidence No. 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's main defense

In the case of the assignment of claims, the transferor of claims shall determine whether the exclusion period expires at the time when the transferor becomes aware of the cause of revocation of the fraudulent act.

The Industrial Bank of Korea, the transferor of the instant loan claims, notified the Korea Credit Guarantee Fund of the occurrence of a guarantee accident, and accordingly, received part of the instant loan claims by subrogation from the Korea Credit Guarantee Fund. Accordingly, the Industrial Bank of Korea was already aware of the fraudulent act around May 29, 2012, at least by subrogation.

However, on May 31, 2012, the Korea Credit Guarantee Fund received a provisional disposition on the registration of cancellation of the right to collateral security on the ground of fraudulent act as the preserved right, and thereafter, the Korea Credit Guarantee Fund was subject to the provisional disposition on the registration of establishment of the mortgage of the instant neighboring area. Since the Dalin Pulin Lyuna and the NASSSSSSA Limited Company, which was specialized in the registration of establishment of mortgage of the instant case, received the instant loan claim in sequence, the said transferor was aware of the fraudulent act around December 2012.

Therefore, a lawsuit for revocation of a fraudulent act by the primary claimant of this case was filed after the lapse of the exclusion period of one year thereafter, and is unlawful.

B. Determination

1) In the exercise of the obligee’s right of revocation, the “date when the obligee becomes aware of the cause for revocation” refers to the date when the obligor becomes aware of the fact that the obligee committed a fraudulent act while being aware that it would prejudice the obligee. This is insufficient to simply recognize the fact that the obligor conducted a disposal of the property, and further, it is necessary to know the existence of a specific fraudulent act and to inform the obligor of the fact that the obligor was aware of the intent to commit a fraudulent act. The burden of proof as to the degree of limitation period exists on the part of the obligee (see, e.g., Supreme Court Decision 2010Da71684, Jan. 13, 201).

2) ① A claim in the case of the assignment of a claim is transferred without maintaining its identity, but the reason for revocation of a fraudulent act is about the obligee’s subjective perception, and so long as the assignment of claim constitutes a specific succession, it cannot be said that the assignment of claim constitutes a transfer without maintaining its identity; ② Article 406(2) of the Civil Act provides for the objective exclusion period within five years from the date of the juristic act, in addition to the limitation within one year from the date the obligee becomes aware of the cause for revocation. As such, even if the starting point of the exclusion period, which means the date when the obligee becomes aware of the cause for revocation, varies from the date when the assignment of claim becomes aware of the cause for revocation, it is difficult to deem that the starting point of the exclusion period is contrary to the purport of the short-term exclusion period in order to prevent the prolonged legal relationship. ③ If the transferee of the preserved claim is determined based on the transferor of the claim, in light of the fact that the transferee is deprived of the opportunity to file a lawsuit for revocation of the fraudulent act itself and unfair results arise.

On December 5, 2014, the Plaintiff acquired the instant claim and became aware of the Nonparty’s fraudulent act on February 17, 2015, which was the provisional attachment order regarding the instant real estate. The instant lawsuit is obvious in the record that was filed on March 17, 2015, which was before one year from the said lawsuit, and thus, the lawsuit for revocation of the instant primary claimant’s fraudulent act is lawful.

3) Even if it is determined, as alleged by the Defendant, whether the exclusion period has expired based on the transferor of the claim, in light of the following facts and circumstances acknowledged by comprehensively taking account of each of the evidence, Gap evidence Nos. 22, Eul evidence Nos. 6 and 7 as well as the overall purport of the arguments and arguments, it is insufficient to recognize that the evidence submitted by the Defendant alone was already aware of the fact that the transferor of the claim (the Bank, the Republic of Korea, the U.S. U.S. S. S. Limited Company, the U.S. Specialized Company of Asset-Backed Securitization) committed a fraudulent act with the knowledge that the non-party would prejudice the obligee, and there is no other evidence to acknowledge

① The Industrial Bank of Korea did not take measures to preserve claims regarding the instant real estate owned by the Nonparty, such as provisional seizure, establishment of a right to collateral security, and application for a compulsory auction of real estate (limited to the case where the Plaintiff, who is the final transferee, obtained the provisional seizure order regarding the instant real estate from February 17, 201

② In determining whether a juristic act by a joint and several surety constitutes a fraudulent act, the general financial resources of the principal obligor are not factors to consider. Therefore, it cannot be readily concluded that the Industrial Bank of Korea applied for a discretionary auction of real estate held by a non-party company on April 3, 2012, and that the non-party, a joint and several surety, was aware of the establishment of the instant mortgage contract and the non-party’s insolvency as a joint and several surety. In addition, even if the Industrial Bank of Korea is a financial institution, it does not necessarily have the duty to investigate whether

③ On May 31, 2012, the Korea Credit Guarantee Fund received a provisional disposition on the registration of cancellation of the right to claim for the establishment of a mortgage on the ground of fraudulent act as the preserved right. On September 3, 2012, the Korea Credit Guarantee Fund filed a lawsuit for cancellation of a fraudulent act against the non-party company, the non-party, and the defendant, etc. ( Busan District Court 2012Gahap43815) on September 3, 2012, but submitted a written withdrawal of the lawsuit against the defendant on August 21, 2013, and withdrawn on September 6, 2013. However, all of them were only made after payment to the Korea Credit Guarantee Fund, and there is no evidence to deem that the Korea Credit Guarantee Fund notified the Industrial Bank of the filing of the lawsuit for cancellation of the fraudulent act or that it was aware of such fact

④ After the establishment registration of the instant neighboring real estate was completed, the Credit Guarantee Fund, the National Bank, and the Small and Medium Business Corporation completed the provisional seizure registration of each of the instant real estate. However, both the Credit Guarantee Fund, the National Bank, and the Small and Medium Business Corporation constituted an institution separate from the Industrial Bank of Korea, and the Industrial Bank of Korea cannot be deemed as having known that the Industrial Bank of Korea was in excess of the Nonparty’s debt on the ground that the said institution received a provisional seizure order on the instant real estate owned by the Nonparty. Furthermore, unlike the foregoing institution, the Industrial Bank of Korea, unlike the foregoing, was taking the establishment of the maximum debt amount of KRW 2.4 billion for the real estate owned by Nonparty

⑤ There is no evidence to deem that the transfer company was perusal of the registry of the instant real estate owned by the non-party at the time of acquiring the instant loan claim by scoodoin, other than scoologe, and NASP, or that the transfer company was established for the purpose of purchase, recovery, etc. of non-performing loans. However, even if the transfer company was established for the purpose of purchase, recovery, etc. of non-performing loans, the said transfer company was transferred the instant loan claim from the Industrial Bank of Korea under the process of the auction of real estate held by the non-party company ( Busan District Court Decision 2012Hu9644, Busan District Court). In light of the fact that the transfer company was directly distributed KRW 1,955,705,985 in the said voluntary auction procedure on April 4, 2013, and subsequently sold the remaining claims to the Plaintiff, the transfer company appears to have purchased only secured claims, and did not manage them as its principal business other than the collection of claims.

Therefore, the defendant's defense prior to the merits is without merit.

4) In this regard, the Defendant had been aware at the time the Industrial Bank of Korea and the United Nations Es.S. Limited Company specialized in the securitization had already known that there existed grounds for revocation of the fraudulent act at the time of holding the instant claim, and the Plaintiff received the claim whose exclusion period for the exercise of the right to revoke the fraudulent act expired as above, and accordingly, the Defendant asserts that the Defendant may oppose the Plaintiff, the assignee of the claim, on the ground that the exclusion period for the exercise of the right to revoke the fraudulent act has expired.

However, since the above provision concerns the opposing power of the debtor in the assignment of claims, the defendant, who is merely a beneficiary in a lawsuit seeking revocation of a fraudulent act, cannot invoke the above opposing power of the debtor. In addition, as seen above, the evidence submitted by the defendant alone is insufficient to recognize that the transferor of claims had already been aware of the fact that the Nonparty had committed a fraudulent act while being aware that he would prejudice the creditor.

Therefore, the defendant's above assertion is without merit.

3. Judgment on the merits

A. Judgment on the main claim

1) The establishment of fraudulent act

A) The existence of preserved claims

As seen earlier, the Nonparty and the Defendant concluded a joint and several surety contract with the Industrial Bank of Korea prior to entering into the instant mortgage contract, and had already occurred the secured claim (excluding the loan of KRW 200 million to small and medium enterprise facilities funds of the Nonparty on January 22, 2010, since the date of the Nonparty’s joint and several surety contract was the date of the instant joint and several surety contract).

B) The intent to commit fraudulent act and to injure

In order to become a fraudulent act of offering security to a certain creditor, it is necessary to create a result of reducing the joint security of other general creditors by allowing the debtor to obtain preferential reimbursement from other creditors only in excess of the debt and the creditor. Therefore, in order to determine whether the debtor's act of offering security becomes a fraudulent act, it is necessary to examine the debtor's property status and clarify whether the debtor's act of offering security exceeds the debt (see Supreme Court Decision 99Da55656, Apr. 25, 200, etc.).

According to the records Nos. 1, 6, 11, and 8, and the fact-finding conducted by the court of first instance on June 29, 2015 against the Ministry of Land, Infrastructure and Transport of the first instance court, the Nonparty’s active property at the time of establishing the instant mortgage contract is recognized as the instant real property equivalent to KRW 91,240 square meters of forest land and 91,240 square meters of market value and KRW 297,50,000 of market value.

Meanwhile, according to the evidence Nos. 1, 7, and 12 and the fact-finding by the court of first instance, the non-party’s small property at the time of establishing the instant mortgage agreement is acknowledged as follows: (a) as small property of the non-party at the time of establishing the instant mortgage agreement, the non-party’s debt amounting to KRW 150,00,000, and ② as to the loans owed to the Industrial Bank of Korea, KRW 1,721,953,801, etc.; and (b) as at the time of establishing the instant mortgage agreement

According to the above facts, since the non-party, who was in excess of the debt, entered into the instant mortgage contract with the defendant, who is a specific creditor, to provide the real estate of this case as collateral, it constitutes a fraudulent act as it harms the interests of other creditors, including the plaintiff, and the non-party recognized that the non-party, due to the instant mortgage contract, could not fully satisfy the creditor's claims by reducing the creditor's joint collateral due to the decrease of the creditor's joint collateral, and as long as the non-party's intention of damage

C) Sub-determination

Therefore, the mortgage contract of this case between the defendant and the non-party should be revoked as a fraudulent act.

(ii) the method and scope of restitution;

Where a beneficiary or subsequent purchaser has already received dividends before a fraudulent act is revoked by a creditor, a creditor may claim for the payment of money that he/she received as a dividend against the beneficiary or subsequent purchaser by means of restitution method (see, e.g., Supreme Court Decision 2011Da49783, Dec. 11, 2014).

The facts that the Defendant received KRW 130,000,000 as the person holding the right to collateral security of this case from November 6, 2015, as a result of the voluntary auction following the conclusion of the contract establishing the right to collateral security of this case between the Nonparty and the Defendant. Therefore, the Defendant is obligated to pay to the Plaintiff the said dividends of KRW 130,000,000 as the restitution following the cancellation of the contract establishing the right to collateral security of this case, and delay damages therefrom.

3) Judgment on the defendant's defense

Since the Defendant was unaware of the Nonparty’s credit status at the time, it did not know that the mortgage contract of this case was detrimental to the general obligee. However, the written evidence Nos. 1, 2, and 3 is insufficient to recognize the Defendant’s good faith, and there is no other evidence to acknowledge it. Thus, the Defendant’s defense is without merit.

B. Determination on the conjunctive claim

The Plaintiff’s preliminary agreement for quasi-loan between the Defendant and the Nonparty is null and void as a false conspiracy, or ② the Defendant already paid 130,000,000 won to the Defendant even though there was no debt of the Nonparty even if there was no debt of the Nonparty due to the full repayment of the investment amount. Therefore, the Plaintiff claims for the above KRW 130,000,000 for the Defendant by subrogation of the Nonparty and its delay damages.

Preliminary claim is a form of seeking a trial on the conjunctive claim under the condition that the primary claim will be accepted. Since the plaintiff's revocation of fraudulent act and restoration to original state are accepted in this case, the plaintiff's primary claimant's revocation of fraudulent act and restitution to original state are not determined separately.

4. Conclusion

Thus, the plaintiff's primary claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance which rejected the lawsuit of this case is unfair on the grounds of its conclusion, and thus, it is revoked by accepting the plaintiff's appeal, but this case is deliberated to the extent that it can render a judgment on the merits of this case, and it is so decided as per Disposition by the party member pursuant to the proviso of Article 418

[Attachment]

Judges Kim Sung-soo (Presiding Judge)

(1) Defendant 1’s attorney stated on the fifth day for pleading of the first instance trial that recognized the Nonparty’s insolvency of a joint and several surety obligor.