Korea Credit Guarantee Fund (Attorney Hong-chul et al., Counsel for the plaintiff-appellant)

Dongyang Co., Ltd. (Law Firm Shinyang, Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

March 28, 2006

Seoul Central District Court Decision 2003Gahap50851 Delivered on July 16, 2004

1. The part against the defendant in the judgment of the first instance shall be modified as follows:

A. The contract to establish a right to collateral security concluded on October 28, 2002 between the court of first instance and the defendant regarding the real estate listed in the attached list No. 1 shall be revoked within the scope of KRW 175,918,908.

B. The defendant shall pay to the plaintiff 175,918,908 won with 5% interest per annum from the day following the day when the judgment became final to the day of full payment.

C. The plaintiff's remaining claims against the defendant are dismissed.

2. The total costs of the lawsuit shall be four minutes, one of which shall be borne by the plaintiff, and the other shall be borne by the defendant.

1. Purport of claim

The contract to establish a mortgage concluded on October 28, 2002 with respect to the real estate listed in the separate sheet No. 1 attached hereto between the defendant Jeong Jong-chul (hereinafter referred to as the "regular repayment") and the defendant in the first instance trial shall be revoked. The defendant will implement the procedure for registration of cancellation of the registration of establishment of a neighboring mortgage, which has been completed on October 29, 2002, with respect to the real estate listed in the separate sheet No. 1 attached hereto, for the plaintiff. 1.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim against the defendant corresponding to the revoked part shall be dismissed.

1. Facts of recognition;

The following facts can be acknowledged based on Gap evidence 1 to 13, Eul evidence 1, Eul evidence 1 to 8, Eul evidence 1 to 16, and 21 (including each number), the white paper branch of the National Bank of the court of the first instance, Songpa-gu branch of the National Bank of the court of the first instance, Songpa-gu branch of the Bank of Korea, the establishment of the Songpa-gu branch of the Bank of Korea, the Korea-U.S. Investment, the Korea-U.S. Technology Investment Limited Liability Company, the Korea Technology Credit Guarantee Fund head of Choung-gu, the fact-finding branch of the Han Bank, and the fact-finding branch of the Han Bank, the results of the fact-finding for the Han Bank of the first instance, and the testimony

(a) The occurrence of claims for indemnity;

(1) The Plaintiff entered into a credit guarantee agreement (hereinafter “credit guarantee agreement”) under which the Plaintiff subrogated to the creditors within the above limit (hereinafter “credit guarantee agreement”) on April 19, 201 with Defendant Macrocro (hereinafter “Macro”) by setting the term of April 19, 2001 as well as 5,00,000,000 won and the guarantee term of April 10, 2002 with respect to the transaction from creditors, such as Korea Electronic Industry Cooperatives, etc., and provided a credit guarantee agreement under which the Plaintiff borrowed money from the creditors as indicated in the attached Table 3 to guarantee the creditors’ obligation to pay the amount of money, such as borrowing money from the obligees as indicated in the attached Table 3.

(2) On March 17, 200, the Plaintiff entered into a credit guarantee agreement between Malass Bank and Malass Bank to guarantee the repayment of loans to Malass Bank by providing for a limit of 104,00,000,000 won and the guarantee term until March 17, 2001, where Malass Bank is unable to repay the loans to the Industrial Bank of Korea, the Plaintiff entered into a credit guarantee agreement to guarantee the loans within the limit of the guarantee term (hereinafter “the second credit guarantee agreement”). Accordingly, on the same day, Malass Bank guaranteed the obligation to refund loans to Malass Bank by providing for a credit guarantee certificate with the above contents and obtaining a loan of 130,000,000 won from the Industrial Bank of Korea on the same day.

(3) In concluding a credit guarantee agreement as seen above, if the Plaintiff performed the guaranteed obligation by subrogation of beer, be paid the Plaintiff the amount of subrogation, damages for delay in accordance with the Plaintiff’s interest rate, expenses for preserving claims, and penalty from the date of payment on behalf of beer, and if the beer fails to repay the principal for a part of the loan, the Plaintiff decided to lose the remainder of the loan due interest. Even before the Plaintiff’s performance of the guaranteed obligation, the Plaintiff, even if having been subject to attachment, provisional attachment, bankruptcy, commencement of composition procedure, commencement of reorganization procedure, or disposition for transaction suspension from a clearing house, was deemed objectively necessary to preserve the obligation, the Plaintiff agreed to recover the beer in advance.

(4) On the other hand, the first instance court, the representative director of beer and the first instance court, whose representative director is Defendant Lee Young-chul and Cho Jin-MC Co., Ltd. (hereinafter “Dong Jin-MC”) had been a joint and several liability for indemnity to be borne by beer against the Plaintiff in accordance with the first credit guarantee agreement, and the Macker’s repayment is a joint and several liability for indemnity to be borne by beer against the Plaintiff in accordance with the second credit guarantee agreement.

(5) However, on March 28, 2003, a guarantee accident occurred against the Industrial Bank of Korea in arrears. Accordingly, the Plaintiff subrogated for KRW 104,920,328 to the Industrial Bank of Korea on June 25, 2003, and the rate of delay damages determined by the Plaintiff is 18% per annum since June 25, 2003, the date of subrogation.

(6) Under the Plaintiff’s first credit guarantee agreement, the amount of advance indemnity for beer shall be KRW 122,463,266 (as stated in the attached Table 3, the amount shall be KRW 168,103,306, but as sought by the Plaintiff), with respect to the second credit guarantee agreement, the Plaintiff recovered KRW 59,768,809 from beer on June 30, 2003, and the remaining amount of subrogation shall be KRW 45,151,519 and the delay damages shall be KRW 176,850 from the date of subrogation to the date of partial recovery.

B. (1) On October 28, 2002, 1,500,000 won was loaned from the defendant who actually operated the non-party winning the contract of this case as a joint guarantor under each credit guarantee agreement of this case (the defendant transferred the above money to the Industrial Bank of Korea (Serial number omitted). The defendant transferred each real estate listed in the separate sheet No. 1 (hereinafter "each real estate of this case") with the defendant on October 28, 2002 with regard to each real estate listed in the separate sheet No. 1 (hereinafter "the mortgage contract of this case"). On October 29, 2002, the agreement of this case was concluded between the defendant and the defendant on October 28, 2002 (hereinafter "the mortgage contract of this case"). On October 29, 2002, the Incheon District Court of Incheon and the registration of its branch court support and the registration of the establishment of the mortgage of this case as the maximum debt amount No. 2,00,000,000 won, and the debtor and the debtor registered as the defendant.

(2) Around July 2002, repayment of KRW 500,000,00 from Korea Mutual Savings Bank was made, and each real estate of this case had already been made up of KRW 520,00,000 and KRW 520,000,000, and KRW 890,000,000,000, out of the money loaned from the Defendant on October 28, 2002, the registration of the establishment of the establishment of the real estate in the name of Solar Mutual Savings Bank was cancelled on the 30th of the same month, which was made out of KRW 401,911,232, out of the said money, before the establishment of the instant mortgage.

C. On October 28, 2002, the date of the conclusion of the instant mortgage contract, active property as of October 28, 2002, there was no particular property other than each of the instant real estate and the attached list Nos. 2. At that time, the market price was 830,00,000 won for each of the instant real estate, and the attached list Nos. 2 (231,000,000 won for the instant real estate, the maximum debt amount was 231,000,000 won for the obligor, ELD Capital Co., Ltd., Ltd., 16, 520,00,000 won for the instant real estate and the attached list Nos. 2, and 1,540,00 won for the obligor, 20,000,000 won for the collective security bank, 30,000,000 won for the Defendant, 360,516,719,167,39,1400.

According to the above facts, the defendant's 85% of the above 60 MM's 15% of the above 600 M's 15% of the above 70 M's 160 M's 50 M's 160 M's 160 M's 50 M's 160 M's 160 M's 160 M's 167 '61'''''''''''''''''s 60 '6 '61''''''''''''''''''''''''''' 60 '6'''''''''''''''''''''''' 60'''''''''''''''''''''''''''''''''''16 '60'''''''''''''''''''''6 '''''''''''''''''6 167''''''''''''''''''''6 ''''''''''''''''''6 16 ''''''''''6 '''''''''''''''''''416 1.

2. Determination

(a)the existence of preserved claims;

(1) In principle, a claim protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property transfer with the knowledge that it would prejudice the obligee. However, even if at the time of a fraudulent act, even if there was no real occurrence of a preserved claim, it is highly probable that there was a legal relationship which is the basis of the claim, and that the claim should be established in the near future based on such legal relationship, and in the near future, the claim may also become a preserved claim of the obligee’s right of revocation in the near future.

(2) As seen earlier, the basic legal relationship for the occurrence of the right to indemnity was established by stipulating that a prior reimbursement may be made in the event of certain circumstances in the credit guarantee agreement of this case at the time of entering into the said mortgage contract. As such, it would be problematic whether there is a high probability that the prior right to indemnity may occur in the near future at the time of entering into the instant mortgage contract. Considering that each of the statements in the evidence Nos. 8 and 9 reveals the overall purport of the pleadings, the main index of the financial statements from 2000 to 202, which is the primary debtor, can be acknowledged as follows.

Table contained in the main text ? 10,018,261,060 won in assets in 2002 - 9,918,692,67 won in assets in 2002 - 4,641,447,043 won in liabilities of 7,113,946,696, 950,040,831 won in assets in 2002 11,762,52,582,786 won in gross profit of 1,94,021,030,030 won in assets in 2001 - 975,647,713 won in business losses -392,372,69 won in assets in 269, 058,6384 won in assets in 201, - 1984 won in total capital loss in 197,5384 won in assets in assets in 200845 won in assets.

According to the above facts, Macs had a relatively high level of performance in around 200, but from around 2001, 1,434,821,508 won in 2001, 9,089,787,599 won in 2002. From around 2001, Macs continued to decrease assets, while the total amount of debts was 4,641,47,043 won in 202, its liabilities were 11,762,582,786 won in 200, and there was a high probability that Macs had a high level of credit guarantee contract from around 201 to around 203 years in light of the above circumstances, since Macs had a high probability that the credit guarantee contract of this case would have become more and more than 11,641,47,043 won in terms of credit guarantee contract of this case.

B. Establishment of fraudulent act

(1) As seen above, it is reasonable to view that the act of regularly transferred money was in excess of the obligation at the time of each of the above contracts on collateral security, and that the act of establishing the right to collateral security on part of the obligor, which is the debtor in excess of the obligation, constitutes a fraudulent act in relation to the other obligees, as the act of reducing the debtor's general property corresponding to the joint security of other obligees. Thus, barring any special circumstance, it is presumed that the right to collateral security contract between the defendant and the due repayment constitutes a fraudulent act in relation to the other obligees, and the defendant, who is the beneficiary, was also aware of such circumstances.

(2) Judgment on the defendant's assertion

㈎ 피고는, 현실적으로 정승환에게 1,500,000,000원을 지급하여 채무자인 정승환의 책임재산의 규모에 어떠한 변동도 없을 뿐만 아니라, 또한 정승환이 사업을 계속 추진할 목적으로 담보를 제공하면서 신규자금을 융통한 것으로서 정승환과 피고 사이의 근저당권설정계약은 사해행위에 해당하지 아니한다고 주장한다.

Generally, an obligor’s act of offering real estate in excess of his/her obligation as collateral for a creditor constitutes a fraudulent act in relation to other creditors, barring any special circumstance. However, barring any special circumstance, if an obligor, in a situation where the continuation of his/her business is difficult due to the financial difficulties, provides real estate to a specific creditor as collateral and receives new funds from him/her for financing, it does not constitute a fraudulent act unless there are special circumstances (see Supreme Court Decisions 2000Da25842, Mar. 29, 2002; 2001Da19134, Oct. 26, 2001). However, the continuous consumption of newly financed funds regardless of the continuous implementation of the business constitutes a fraudulent act.

However, the above argument by the defendant is not accepted, since there is no evidence to prove that the repayment of the above money borrowed from the defendant for the purpose of the continuation of business, the payment of the above money does not constitute a fraudulent act as it is for the purpose of continuing business. However, there is room to regard that the repayment of the 30% of the money borrowed from the defendant is for the purpose of continuing business in terms of the fact that the repayment of the 30% of the money borrowed from the defendant for the 30% of the money borrowed from the defendant for the 30% of the 30% of the 30% of the 30% of the money borrowed from the 30% of the 30th of the 30th of the 30th of the 30th of the 30th of the 30th of the 30th of the 196th of the 3rd of the 4th of the 196th of the 3rd of the 196th of the 3rd of the

㈏ 피고는, 피고의 실질적 경영자인 정승소와 정승환이 서로 형제간이나, 아버지 망 정시봉이 사망한 1996. 12.부터 각기 재산을 상속받아 독자적으로 사업체를 운영해 와 정승환의 재무상태에 관하여는 알 수가 없는 상태였으므로, 선의의 수익자라는 취지의 주장을 하므로 살피건대, 피고가 제출한 모든 증거로도 이를 인정하기에 부족하고 달리 이를 인정할 증거가 없으며, 오히려 앞서 든 증거 및 을나 제9호증의 1 내지 3의 각 기재와 제1심 증인 송덕호의 일부 증언에 변론 전체의 취지를 종합하면 정승환이 피고의 이사로 활동하였고, 피고의 대표이사인 최해석이 지맥스와 동진피엠씨의 감사로 활동하고 있는 사실을 인정할 수 있는바, 이에 의하면 피고는 지맥스 등과 가족기업체로서의 특수관계를 유지하여 온 것으로 보이므로, 피고의 위 주장은 이유 없다.

(c) Methods of revocation of fraudulent act and reinstatement;

(1) In the event that a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of such real estate. In the event that a mortgage establishment registration is cancelled due to repayment after a fraudulent act, etc., to order the revocation of the fraudulent act and the restoration of the real estate itself would result in a violation of fairness and fairness, and thus, to order the recovery of the portion which was not originally constituted joint security of the general creditors. Therefore, from the value of the real estate, the fraudulent act may be revoked to the extent of the balance obtained by deducting the secured debt

On October 28, 2002, the Bank of Korea established a mortgage contract of this case with respect to each of the real estate of this case on October 29, 2002, and completed the establishment of mortgage on the same day. On the same day, the Bank of Korea established a priority mortgage contract of this case on October 29, 2002. On October 30, 202, the Bank of Korea established a priority mortgage contract of 401,91,232 out of the borrowed money from the defendant, and cancelled the establishment of mortgage on October 30, 202. Since the market price of each of the real estate of this case was 1,540,306,00 won as above, the Bank of Korea established a priority of 1,138,394,768 won (the market price of each of the real estate of this case is 1,500 won, 200 won, 301,2005 won, 3005 won, 2001.

Meanwhile, the scope of revocation of a fraudulent act is reasonable to deem that other creditors can seek revocation only within the scope of the claim amount of the cancelled creditor, except where it is clear that other creditors demand a distribution or the object is indivisible (see Supreme Court Decision 97Da10864, Sept. 9, 1997). In particular, in cases of ordering compensation by means of restitution, payment of money cannot be deemed indivisible. Unlike the case of original return, in light of the fact that the cancelled creditor may actually receive preferential reimbursement of his/her secured claim by means of offsetting his/her claim against himself/herself, etc., unlike the case of original return, even if it is possible for other creditors to demand a distribution, the scope of compensation is limited to the amount of interest or delay damages from the time of conclusion of argument after the fraudulent act, 200Da6416, Sept. 4, 201; 2000Da64164, Nov. 25, 201; 2010Da16415, Nov. 26, 20196

Therefore, the mortgage contract of this case should be revoked within the scope of KRW 190,214,00. However, in a case where only the defendant appealed, it cannot change disadvantages to the defendant than the judgment of the court of first instance in determining the scope of partial cancellation of the mortgage contract of this case and the scope of compensation for value. Thus, the mortgage contract of this case can be revoked within the scope of KRW 175,918,908 as in the judgment of the court of first instance, and the defendant shall be liable to pay damages for delay at the rate of KRW 5% per annum from the day following the day when the judgment became final and conclusive to the day of full payment [the plaintiff is seeking revocation of the whole contract of this case, which is a fraudulent act, and the obligation to pay damages for delay at the rate of KRW 175,918,908 as in the judgment of the court of first instance, which is the amount of the secured claim of this case, to the plaintiff [the plaintiff shall be deemed as including the purport that partial cancellation of the mortgage contract of this case and the purport of this case shall be justified.

4. Conclusion

Therefore, the plaintiff's claim against the defendant is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the part against the defendant in the judgment of the court of first instance is partially unfair with different conclusions, the part against the defendant in the judgment of the court of first instance is accepted in part of the defendant's appeal and the part against the defendant in the judgment of the court of first instance is to be modified in accordance

[Attachment List omitted]

Judges Lee Sung-sung (Presiding Judge) (Presiding Justice)