Where the establishment of a neighboring mortgage has been registered after the provisional seizure was registered, whether the creditor of the provisional seizure may exercise his right of revocation against the debtor's act of establishing a right of revocation (affirmative with qualification)

In the event that the registration of provisional seizure is made first and the establishment of a neighboring mortgage is completed, in the distribution relationship of auction procedures, the mortgagee of senior provisional seizure cannot claim preferential payment right against the creditor of senior provisional seizure. Therefore, the creditor of provisional seizure is entitled to equal distribution in the qualification of the mortgagee of senior provisional seizure and the creditor. Therefore, inasmuch as the creditor of provisional seizure is not at any disadvantage due to the debtor's act of establishing a collateral security, the creditor of provisional seizure may not exercise his right of revocation. However, in the event that the actual amount of claims exceeds the amount of claims of provisional seizure, the act of disposal by the debtor is a fraudulent act that reduces the creditor's joint security, and thus the creditor's right

Article 406 of the Civil Act

[Plaintiff-Appellee] 94Ma417 decided Nov. 29, 1994 (Gong1995Sang, 104)

[Defendant-Appellant] Housing Redevelopment Association (Law Firm Dong, Attorneys Cho Chang-joon et al., Counsel for defendant-appellant)

Defendant (Attorney Sung-il, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na72064 decided September 21, 2007

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

The grounds of appeal are examined.

1. As to the existence of preserved claim

Based on the evidence adopted in its judgment, 440,000,00 won as stated in the Promissory Notes, etc. of this case is the sum of 197,974,702 won including the unpaid sale price of the real estate of this case, taxes and management expenses, and damages of 50,000,000 won due to illegal moving expenses, and 70,000 won of relocation expenses borne by the non-party to Samsung C&T Co., Ltd., and 324,451,702 won including the indemnity claim and various litigation expenses, which are the joint and several surety of the same amount, and the interest claim amount of 110,00,000,000 won until the preparation of the said Promissory Notes. The court below rejected the plaintiff's claim amount of 58,520,550 won as well as interest claim amount of 500,000 won for the termination of the State-owned land contract of this case, and there is no error in the law of finding that the plaintiff's actual claim against the non-party as above.

The court below, based on the reasoning of the judgment of the court of first instance, rejected the claim for revocation of the declaration of intention by the defendant's duress, and as long as the actual amount of the plaintiff's claim against the non-party reaches approximately KRW 500,00,000,00, and even if the Promissory Notes, etc. in this case were prepared in the state where the non-party was in bad condition and were not effective, it seems to have rejected the defendant's above assertion. Thus, it cannot be said that the court below erred in the omission of judgment on the ground that the court below failed to make a special judgment on this issue.

2. As to the establishment of a fraudulent act

In the event that the registration of provisional seizure was made first and the registration of the establishment of a neighboring mortgage was completed, the mortgagee of senior provisional seizure cannot claim preferential payment right against the creditor of senior provisional seizure in the distribution relationship of auction procedure, so that the creditor of senior provisional seizure is entitled to equal distribution in the qualification of the mortgagee and the general creditor (see Supreme Court Order 94Ma417, Nov. 29, 1994). Therefore, the creditor of provisional seizure is prohibited from exercising the creditor's right of revocation because the creditor of provisional seizure is not at any disadvantage due to the debtor's act of establishing the right of revocation because of the debtor's act of establishing the right of revocation of provisional seizure. However, if the creditor's actual amount of credit exceeds the amount of credit of provisional seizure, the creditor's act of disposal is a fraudulent act that reduces the creditor's joint security, so the creditor

According to the reasoning of the judgment below, the total amount of the plaintiff's claim for provisional attachment prior to the establishment of the right to collateral security of this case is KRW 257,754,747 in total, and it is clear that the actual amount of the plaintiff's claim against the non-party would exceed the amount of claim for provisional attachment of approximately KRW 500,000,000 in excess. Thus, the decision of the court below in this part is somewhat insufficient, but the decision of the court below in this part is justified, and it is not erroneous in the misapprehension of legal principles as to the establishment of fraudulent act.

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 Jeon Soo-ahn (Presiding Justice)