(영문) 수원지방법원 2016.12.01 2016나59348

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(영문) 수원지방법원 2016.12.01 2016나59348

사해행위취소

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1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1...

Reasons

1. The reasoning for the court’s explanation of this case is as follows, except for adding the judgment as set forth in paragraph (2) below to the argument that the defendant raised an appeal and brought in the trial of the court of the first instance, and therefore, it is identical to the entry of the reasoning of the judgment of the court of the first instance in accordance with the main sentence of Article 4

2. Additional determination

A. The summary of the Defendant’s assertion 1) B borrowed KRW 600,000,00 from the Defendant in order to repay the Plaintiff’s obligation, and concluded the instant mortgage agreement to secure the loan obligation. As such, the instant mortgage agreement cannot be deemed as a fraudulent act. 2) It is difficult to view that the instant mortgage agreement was in excess of the obligation as it owns a claim for the refund of investment amounting to approximately KRW 23,80,000,00 with respect to Escar Co., Ltd. (hereinafter “Esia”) in addition to KRW 3,486,371,360 at the time of the instant mortgage agreement, as well as KRW 3,486,371,360.

B. 1) In full view of the facts and the purport of the arguments cited earlier, it can be acknowledged that B had been in excess of the obligation at the time of the instant mortgage contract. Of several claims, the act of establishing a collateral on the instant real estate by B, which was in excess of the obligation, constitutes a fraudulent act resulting in the lack of joint security in relation to the general creditors including the Plaintiff, and the scope of the fraudulent act does not vary depending on the place of use of the money borrowed from the Defendant, which is the specific creditor (see, e.g., Supreme Court Decision 2007Da45634, Oct. 11, 2007). Thus, the instant mortgage contract does not constitute a fraudulent act solely on the ground that B used the money borrowed from the Defendant for the repayment of the obligation to the Plaintiff.

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