Whether a creditor of provisional attachment is entitled to exercise his/her right of revocation against the act of establishing the right of revocation in cases where the debtor of the right of revocation becomes insufficient to secure the obligation of a third party with respect to the real estate attached by the creditor of provisional attachment, or his/her status has deteriorated (affirmative)

In a case where a creditor has provided a real estate which was already provisionally seized for the preservation of his/her own claim with the collateral of the obligation owed by a third party and provided the collateral security by the debtor with the collateral of the obligation owed by a third party, the property with the physical basis at which the general creditor is satisfied is newly reduced. Therefore, even if the creditor having the provisional seizure creditor can receive dividends equally from the proceeds of realizing the real estate in question, as seen above, even if the creditor having the provisional seizure creditor is able to receive dividends in the same manner as the mortgagee has the right to receive dividends from the dividends, there is no guarantee that the provisional seizure creditor has the right to obtain sufficient satisfaction from the dividends, and the creditor having the right to obtain other responsibilities still has the right to obtain the satisfaction of the general claim including the above provisional seizure, if the property with the above responsibilities is insufficient or the situation becomes worse, the creditor having the provisional seizure also becomes at a disadvantage to obtain the sufficient satisfaction of his/her claim. Accordingly, even if it is the creditor having the right to revoke the right

Article 406 of the Civil Act

Plaintiff

Defendant corporation

Suwon District Court Decision 2009Na12020 decided October 21, 2009

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

We examine the grounds of appeal.

"Act detrimental to creditor", which is the object of creditor's right of revocation, means an act for the purpose of property right, and thereby that the debtor's passive property exceeds active property or exceeds his/her obligation (see Supreme Court Decision 2002Da27903, Aug. 27, 2002, etc.).

In addition, in a case where a creditor, who already attached a real estate for the preservation of his/her own claim, provided a third party as a collateral and provided a collateral for the obligation to be borne by a third party and provided a collateral, thereby resulting in a new decrease in the liability property, which serves as a physical basis for the general creditor to obtain satisfaction. Therefore, even if the creditor who already attached the real estate can receive dividends equally from the proceeds of realizing the real estate in question, as seen above, even if the creditor who already attached the real estate can receive dividends from the mortgagee who has already been established a collateral, there is no guarantee that the creditor would obtain sufficient satisfaction of the claim for provisional seizure from the dividends, and as long as the creditor has the right to obtain other responsibilities, as long as he/she still has the right to obtain the satisfaction of the general claim including the above provisional seizure, the creditor who already attached the real estate would also be at a disadvantage that would be unable to obtain the sufficient satisfaction of his/her claim. Accordingly, even if it is the creditor who already attached the provisional seizure, he/she may exercise the right

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its holding, and determined that the act of creating the instant collateral constitutes a fraudulent act with knowledge that Nonparty 1 would prejudice the general creditors including the Plaintiff, even though it was not in excess of the obligation at the time of the establishment of the instant collateral security, by setting up and granting the instant collateral security on the instant real estate for which the Plaintiff had already been provisionally seized for the sake of securing his own claim, which led to the decrease of active property, and the excess of the obligation became worse, and even if it was not in excess of the obligation at the time of the establishment of the instant collateral security, it is clear that the establishment of the instant collateral security was not in excess of the obligation.

In light of the above legal principles and records, the above judgment of the court below is justifiable. The judgment below did not err by violating the rules of evidence and by misapprehending the legal principles on the establishment of fraudulent act, as otherwise alleged in the ground of appeal.

Supreme Court Decision 2007Da77446 Decided February 28, 2008 cited in the ground of appeal is related to the case where the debtor set up the right of collateral in order to secure his/her obligation to his/her own beneficiary, and it is not appropriate for the debtor to apply to the case where the debtor set up the right of collateral collateral with the real guarantee.

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 on the bench.

Justices Kim Ji-hyung (Presiding Justice)