[Defendant-Appellant] Housing Redevelopment Association (Law Firm Dong-dong, Attorney Shin Jae-chul, Counsel for defendant-appellant)

Defendant

June 14, 2006

1. The contract to establish a right to collateral security concluded on February 2, 2006 between the defendant and the non-party 1 shall be revoked.

2. As to the real estate mentioned in paragraph (1) to Nonparty 1, the Defendant shall implement the procedure for registration of cancellation of the registration of the establishment of a mortgage near the Seoul Central District Court that was completed as No. 4207 on February 2, 2006.

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

The same shall apply to the order.

1. Basic facts

A. On December 29, 2005, Nonparty 1’s wife Nonparty 2 issued, as delegated by Nonparty 1, 440,000,000 won at par value, February 28, 2006, and one promissory note per issuer, respectively, and issued to Nonparty 1, and on January 6, 2006, a notary public prepared and issued a notarial deed as the notarial deed No. 14 in 2006, written by the Gangnam General Law Firm.

B. On February 2, 2006, the Defendant concluded a mortgage agreement with the mortgagee as to the real estate indicated in the attached list, which is the only real estate owned by Nonparty 1 and Nonparty 1 (hereinafter “instant real estate”). On the same day, the Defendant completed the registration of establishment of a mortgage on February 2, 2006 as the Seoul Central District Court registry office, which received on February 2, 2006, with the maximum debt amount of KRW 290,000,000 and the mortgage agreement with the mortgagee as the defendant (hereinafter “mortgage agreement”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 6 evidence, the purport of the whole pleadings.

2. Determination

(a)the existence of preserved claims;

(1) On December 29, 2005, Nonparty 1’s wife Nonparty 2, who was delegated by Nonparty 1, issued and delivered a promissory note to the Plaintiff on December 29, 2005. As seen earlier, the Plaintiff has a claim against Nonparty 1.

D. As to the decision, the defendant argued that the non-party 1 was sentenced to four months of imprisonment for the crime of attempted fraud, and that the non-party 2 forced the plaintiff to prepare a promissory note and a notarial deed with the plaintiff as forced by the plaintiff. Thus, this is null and void even if it is not null and void, and the plaintiff was notified of revocation thereafter. Thus, the fact that the non-party 1 was in the detention house at the time of the issuance of a promissory note does not dispute between the parties, but it is insufficient to recognize that the above facts were in the state of stuff, and there is no evidence to support that the non-party 2 was in the state of stuff. The above argument by the defendant is without merit

B. Establishment of fraudulent act

(1) Unless there are special circumstances, an obligor in excess of his/her obligation would be deemed to constitute a fraudulent act against a creditor, barring any special circumstance.

The market value of the instant real estate at the time when Nonparty 1 created the right to collateral security on the instant real estate to the Defendant is equivalent to KRW 400,000,000, and at the time, Nonparty 1 bears KRW 440,000 for the Plaintiff’s debt of the promissory note payment. According to the evidence No. 2 and No. 1-1 of the evidence No. 2, Nonparty 1, a representative director, borrowed KRW 220,000 from the Defendant on July 24, 1995 to pay KRW 3,30,000 for the interest, and the Defendant can be found to have completed the establishment registration of collateral security on the instant real estate owned by Nonparty 1 pursuant to the loan agreement, so it can be deemed that Nonparty 1 had already been in excess of the obligation at the time of the establishment registration of collateral security, and even if not, it can be said that Nonparty 1 had failed to do so.

Article 22(1) of the Civil Act provides that “The act of Nonparty 1 entering into a mortgage agreement and making a mortgage establishment registration on the instant real estate, which is the only property owned by the Defendant, constitutes a fraudulent act detrimental to general creditors including the Plaintiff, and the act of Nonparty 1 knew at the time of entering into the mortgage agreement, that the shortage of joint security for Nonparty 1’s creditors’ claims will deepen.” It is presumed that the Defendant’s bad faith, the beneficiary

C. Determination on the Defendant’s bona fide assertion

(1) On July 24, 1995, the defendant lent KRW 220,00,00 to the non-party 3 corporation. Accordingly, the defendant asserted that the non-party 1 was not aware of the establishment of the mortgage of this case on the real estate of this case owned by the non-party 3 corporation, the representative director of the non-party 3 corporation, and whether the non-party 1 was in excess of the debt.

The written evidence Nos. 1 and 2 alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, the Defendant’s confirmation that the sum of the claims for provisional seizure established on the instant real estate by inspecting the copy of the register of the real estate at the time of registering the establishment of the instant neighboring mortgage reaches KRW 291,273,14, does not conflict between the parties. In full view of the written evidence Nos. 3-1, 2, and 4 and the overall purport of the pleadings, Nonparty 3 registered the establishment of April 18, 191, and the Defendant was registered as each director at the time of Nonparty 1 and the Defendant, and the corporate register was closed as a Dormant corporation on May 2, 2001, and the fact that Nonparty 1 was registered as a director and the Defendant could be recognized as the representative director at the time of registering the establishment of the instant real estate, and thus, the Defendant did not have any sufficient reason to view it as a joint collateral agreement between Nonparty 1 and the Defendant as a creditor at the time of this case was insufficient.

D. Sub-committee

Therefore, since the contract to establish a mortgage of this case between the defendant and the non-party 1 is a fraudulent act, it is revoked, and the defendant is obligated to implement the registration procedure for cancellation of the registration of the establishment of a mortgage of this case which was completed as of February 2, 2006 by the Dongjak District Court No. 4207.

3. Conclusion

Thus, the plaintiff's claim against the defendants is accepted on the grounds of all.

[Attachment List of Real Estate]

Judges Yu Jae-young (Presiding Judge)