(영문) 부산지방법원 2009.6.10.선고 2009가합1859 판결

1. Defendant B1 Co., Ltd. shall pay to the Plaintiff 341,00,000 won with 6% interest per annum from December 10, 2007 to February 10, 2009, and 20% interest per annum from the next day to the day of complete payment.

2. (a) On December 10, 2007, the trust contract concluded on December 10, 2007 between Defendant B1 and Defendant B2 as to each real estate listed in the separate sheet; and

B. Defendant B2 Co., Ltd. shall perform the registration procedure for cancellation of each ownership transfer registration as to each of the above real estate to Defendant B1 Co., Ltd. completed on December 10, 2007 by the Busan District Court, Busan District Court, Busan District Court, and the receipt of No. 65253

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

다음 각 사실은 당사자 사이에 다툼이 없거나, 갑 제1호증, 갑 제2호증의 1 내지 5, 갑 제3호증의 1 내지 7, 갑 제4호증의 1 내지 5의 각 기재, 이 법원의 부산 ■■구청장에 대한 사실조회 결과에 변론 전체의 취지를 종합하여 이를 인정할 수 있다.

A. On March 12, 2007, the Plaintiff entered into a subcontract with Defendant B1 Co., Ltd. (Co., Ltd., Ltd., Ltd., hereinafter referred to as “Defendant B1”) on the construction contract for stone construction among the new construction works in Busan Seopo-dong, Busan Seopo-dong, Busan, 00-16,00-17 (excluding value-added tax), and completed all construction works from March 12, 2007 to November 2007 (hereinafter “instant subcontract”).

B. On September 5, 2007, the Plaintiff entered into a contract with Defendant B1 to purchase each of the real estate listed in the separate sheet (hereinafter referred to as "each of the real estate in this case") among BBD as a payment in lieu of payment for the above construction price (hereinafter referred to as "the sales contract in this case"). However, on December 10, 207, Defendant B1 completed the registration of preservation of ownership with respect to BBD (hereinafter referred to as "PD"), including each of the real estate in this case, with Defendant B2 Co., Ltd. (hereinafter referred to as "Defendant B2") on the same day. After entering into a trust contract with Defendant B2 on the same day, Defendant B completed the registration of ownership transfer with the Busan District Court's registry No. 65253 on the same day on the ground of the above trust.

D. At the time when the above trust contract was concluded, Defendant B1 was liable to pay the construction cost due to the new construction of BBD, and Defendant B did not own any other real estate except BBD.

2. Determination as to the claim against Defendant B1

(a) Description of the claim;

The Plaintiff’s claim for construction price of KRW 341,00,000 under the instant subcontract against Defendant B1 (i.e., contract amount of KRW 310,00,000 + value-added tax of KRW 31,00,000 + from December 10, 2007 to the delivery date of a copy of the instant complaint, 6% per annum under the Commercial Act and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment; and damages for delay by 341,00 per annum under the same Act

(b) Judgment without holding any pleadings (Articles 208 (3) 1 and 257 of the Civil Procedure Act);

3. Determination as to the claim against Defendant B2

A. Summary of the parties' assertion

1) The Plaintiff asserts that Defendant B1, who is liable to pay the construction price to the Plaintiff, entered into a trust agreement with Defendant B1 with regard to B1, which is the only real estate of Defendant B1, and completed each registration of ownership transfer with regard to BB, in the name of Defendant B2, constitutes a fraudulent act against the Plaintiff, and thus, the above trust agreement should be revoked pursuant to Article 8 of the Trust Act and Article 406 of the Civil Act, and Defendant B2 is obligated to implement the procedure for cancellation of each of the above ownership transfer registration with respect to each of the instant real estate sought by the Plaintiff to be restored to its original state.

2) As to this, Defendant B2 asserts that the right to revoke revocation should be either monetary claims or claims against unspecified objects. However, Defendant B1’s claim against Defendant B1 is the Plaintiff’s right to claim for transfer of ownership under the instant sales contract, and thus, the right to revoke revocation with the above specific object claim is not permissible.

B. Determination

(i)the existence of preserved claims;

A) According to the above facts, Defendant B1 is obligated to pay to the Plaintiff the construction cost of KRW 341,00,000,000 under the instant subcontract, and the Plaintiff’s claim against Defendant B1 against the Defendant B1 was incurred before December 10, 2007, which is the date of conclusion of the trust agreement between the Defendants with BBD, and thus, it can be the preserved claim to exercise the right of revocation as to the said trust agreement.

B) As seen earlier, Defendant B2 asserts that, as the Plaintiff and Defendant B1 entered into the instant sales contract as a substitute for the payment of the construction cost, the right to claim ownership transfer registration cannot be the preserved claim against the right to cancel the fraudulent act.

The obligee’s right of revocation is granted in order to prevent the decrease of the obligor’s property, which is a joint security of the total creditor, and since it is not aimed at preserving a specific claim, an obligor holding the obligee’s right of revocation as prescribed in this Article cannot exercise the obligee’s right of revocation (see Supreme Court Decision 64Da1483, Mar. 30, 1965). Thus, the Plaintiff’s right of revocation cannot be exercised (see Supreme Court Decision 64Da1483, Oct. 26, 1987). The Plaintiff’s right of revocation was examined as to whether the preserved claim against Defendant B2 constitutes the obligee’s right of claim for ownership transfer registration of a specific object, and the Plaintiff’s right of claim for ownership transfer against the Defendant B in accord with the payment for the construction cost as set forth in the foregoing article shall be deemed as an accord for payment in substitutes. However, since the payment in substitutes is an essential contract established when another real property is transferred to the ownership of the real property, the obligee’s right of claim against the Defendant B is still lacking in the Plaintiff’s right to claim against the construction price.

2) The establishment of fraudulent act

A) Article 8(1) of the Trust Act provides that “Where an obligor has established a trust with the knowledge that it would prejudice the obligee, the obligee may claim revocation and restitution of the original status under Article 460(1) of the Civil Act even if the trustee is bona fide, even if he/she is acting in good faith.” Meanwhile, where the obligor concludes a trust contract with a third party with respect to real estate, the sole property of which is his/her own property without repayment, and completes the registration of ownership transfer in his/her name, the trust contract shall be deemed a fraudulent act with the knowledge that it would prejudice the obligee (see Supreme Court Decision 98Da41490, Sept. 7, 199).

B) According to the above facts as to the instant case, Defendant B1, who was liable for the payment of the construction cost of KRW 341,00,000 against the Plaintiff, was liable for the payment of the construction cost due to the new construction of BBD on December 10, 2007, and entered into a trust agreement with Defendant B2 with regard to B B, which is the only real estate, on the same day, and completed the registration of ownership transfer to B2 on the same day, constitutes a fraudulent act as reducing the common security of the general creditors including the Plaintiff, and Defendant B1 knew that it would prejudice the general creditors including the Plaintiff, etc., and the issue of good faith by Defendant B2 pursuant to Article 8(1) of the Trust Act is unclear.

3) Sub-decisions

Therefore, the trust agreement between Defendant B1 and Defendant B2 regarding each of the instant real estate sought by the Plaintiff constitutes a fraudulent act and thus should be revoked. As such, Defendant B2 is obligated to implement each of the registration procedures for cancellation of ownership transfer as stated in Article 2-B of the Disposition No. 2-B, which was completed with respect to each of the instant real estate.

4. Conclusion

Therefore, since the plaintiff's respective claims against the defendants of this case are well-grounded, they shall be accepted respectively, and it is so decided as per Disposition.