[1] Requirements for future bonds or conditional bonds to be created to be subject to provisional seizure

[2] Whether a judgment on revocation of a fraudulent act has effect on a person who provisionally attached dividends distributed to the right to collateral security acquired by a beneficiary by a fraudulent act in order to secure the claims already held as a beneficiary's own creditor (negative)

[1] Where future bonds or conditional bonds are expected to be certain and to be incurred in the near future, they are subject to provisional seizure.

[2] The revocation of a fraudulent act is effective relatively between the parties to a lawsuit seeking revocation, and any third party, other than the parties, is not affected by the revocation of the legal relationship. The mere acknowledgement of the relative effect of the revocation of a fraudulent act is to coordinate the interests of the creditor and beneficiary, and the third party, which does not affect the validity of the revocation, does not limit the scope of the revocation to the subsequent purchaser, etc. of the real estate that newly conducted a legal act on the basis of the fraudulent act. Thus, rather than establishing a new legal relationship with the beneficiary, it cannot be deemed that the judgment on the revocation of a fraudulent act is effective against the person who provisionally attached the dividends distributed to the right to collateral security that the beneficiary acquired by the fraudulent act in order to secure the claims already held as the inherent creditor

[1] Article 276 of the Civil Execution Act / [2] Article 406 of the Civil Act

[1] Supreme Court Decision 82Meu508 Decided October 26, 1982 (Gong1983, 61) (Gong2000Ma5252 Decided September 18, 2001) / [2] Supreme Court Decision 89Meu35421 Decided October 30, 1990 (Gong190, 2402) Supreme Court Decision 99Da9011 Decided May 29, 2001 (Gong2001Ha, 1444), Supreme Court Decision 204Da49532 Decided November 10, 2005 (Gong205Ha, 1958)

The Korea Technology Finance Corporation (Law Firm member, Attorney Lee In-hee)

Korea Credit Guarantee Fund (Law Firm Hun-Ba, Attorneys Yu Byung-il et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2006Na6218 Decided November 23, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the defendant's assertion that provisional attachment against dividend payment claim is invalid

Any future bonds or conditional bonds are subject to provisional seizure in cases where the current rights are specified and it is expected to be created in the near future (see Supreme Court Decision 82Meu508 delivered on October 26, 1982, etc.).

According to the reasoning of the judgment below and the records, the defendant, after the registration of the decision on commencement of voluntary auction by senior mortgagee, seized dividends to be distributed to the mortgagee in the auction procedure. Thus, the provisional seizure of this case is legitimate. Thus, the defendant's allegation in the grounds of appeal disputing it cannot be accepted.

In addition, the argument that the dividend payment claim of Nonparty 1, a beneficiary, was extinguished is based on the premise that the judgment revoking the fraudulent act of this case extends to the defendant, and it cannot be accepted as follows.

2. As to the assertion that priority dividend to the defendant is unlawful

The revocation of a fraudulent act is effective relatively between the parties to a lawsuit seeking revocation, and a third party, other than the parties, does not affect the legal relationship of the revocation, unless there are other special circumstances. The mere recognition of the relative effect of the revocation of a fraudulent act is to coordinate the interests of the creditor and beneficiary, and the third party, which does not affect the revocation, and the scope of the revocation is not limited to only the subsequent purchaser, etc. of the real estate that newly conducted a juristic act on the basis of the fraudulent act with respect to the subject real estate (see Supreme Court Decision 2004Da49532 delivered on November 10, 2005), and it does not constitute a new legal relationship with the beneficiary, but also does not affect the judgment of revocation of a fraudulent act.

According to the reasoning of the judgment below and the records, the non-party 2 filed a lawsuit against the non-party 1 on August 29, 2002 to establish a mortgage contract with the non-party 2, which was owned by the court of execution, and completed the establishment of a neighboring mortgage on the non-party 1. The registration of the non-party 1 was completed on November 1, 2002 on the non-party 2, which was established on the real estate of this case, and was distributed 49,021,59 won to the non-party 1 on July 10, 203 upon the auction procedure to the non-party 2. The plaintiff was notified of the non-party 1 on the non-party 2's claim for the cancellation of the provisional seizure against the non-party 1 and the non-party 2's claim for the cancellation of the provisional seizure against the non-party 1 on January 17, 2003. The plaintiff received the above non-party 2's claim for the cancellation of distribution.

In light of the aforementioned legal principles and facts, the defendant does not establish a new legal relationship with the non-party 1 who is the beneficiary, but is a person who provisionally attached the dividends distributed to the non-party 1 for the purpose of securing claims already held as the inherent creditor of the non-party 1. Therefore, the judgment revoking the fraudulent act cannot be deemed to have an effect on the defendant.

In the same purport, the court below is just in holding that it is legitimate to preferentially distribute dividends to the defendant who first attached the dividends to the defendant, who is the inherent creditor of the beneficiary, on the ground that the judgment revoking the fraudulent act does not affect the judgment, and there is no error of law such as

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)