A limited liability company specialized in the re-backed securitization of new land;

Korea Credit Guarantee Fund (Law Firm Democratic, Attorneys Kim Jong-sung, Counsel for defendant-appellant)

Defendant 1 and two others (Attorneys Kim Young-mo et al., Counsel for the defendant-appellant)

April 28, 2010 (Defendant 3)

July 14, 2010 (Defendant 1 and 2)

Seoul Central District Court Decision 2008Gahap87063 Decided July 17, 2009

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the claim ordering implementation under paragraphs 2 and 3 below shall be revoked.

2. The sales contract concluded on November 3, 2007 between Defendant 1 and Nonparty 1 (the Nonparty of the Supreme Court judgment) with respect to each real estate listed in the separate sheet No. 1 shall be revoked within the limit of KRW 813,841,830.

3. Defendant 1 shall pay to the succeeding intervenor 813,841,830 won and 5% interest per annum from the day following the day the judgment of this case became final to the day of complete payment.

4. The successor intervenor's remaining appeals are dismissed.

5. The part arising between the succeeding intervenor and the defendant 1 out of the total costs of the lawsuit shall be borne by the above defendant, and the part arising between the succeeding intervenor and the defendant Hyundai Honia Co., Ltd. and the defendant Pakistan Digital Co., Ltd. shall

(1) The part of the judgment of the court of first instance against the plaintiff shall be revoked. ① The sales contract concluded on November 3, 2007 between the defendant 1 and the non-party 1 shall be revoked by up to 813,841,830, and the defendant 1 shall pay 813,841,830 won to the successor 2 (hereinafter referred to as the "participating") and 60% interest per annum from the day following the date of conclusion of the judgment of this case until the day of complete payment (hereinafter referred to as the "second real estate"), ② The defendant Hyundai 2 (hereinafter referred to as the "Defendant Hyundai 1"); the defendant Hyundai 2 and the non-party 1 shall be revoked by 000 to 60.10 to 60 to 80 to 60 to 60 to 10 to 60 to 60 to 10 to 50 to 20 to 60 to 20 to 15 to 20 to 16.4 to 20 to 5 to 17.5 to accept of the mortgage.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1 through Gap evidence 7, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 4-2, Eul evidence 4-3, the appraiser non-party 2's market price appraisal result, the court of first instance can be acknowledged by taking into account the whole purport of arguments as a result of fact inquiry with respect to the head of the Gun in the Daejeon Metropolitan City, the head of the Si/Gun in Daejeon Metropolitan City, the head of the Si/Ycheon-gu Metropolitan City, the head of the Seocho-gu Seoul Metropolitan City, and the head of Seocho-gu Seoul Metropolitan Government Office, and there is no other counter-proof.

(a) Issuance of original records and takeover of the claims by the plaintiffs and intervenors;

(1) On November 7, 2006, Korea Investment Securities Co., Ltd. (hereinafter “Korea Investment Securities”) issued bonds free of guarantee amount of KRW 1.6 billion. On the same day, Korea Investment Securities Co., Ltd. (hereinafter “Korea Investment Securities”) paid KRW 1.6 billion to the original, and acquired the said bonds. The original bonds were jointly and severally guaranteed by Nonparty 1, who was the representative director of the original company with respect to the obligations under the above contract, on November 7, 2008, temporary redemption on the two-year maturity, from February 7, 2007 to August 2008, from February 7, 2007, May 7, 7, August 7, 2007, and November 7, 2008.

(2) On November 7, 2006, Korea Investment Securities paid an acquisition price of KRW 1.6 billion under the above bond acquisition contract and acquired the above bonds. On the same day, it concluded a contract between the Plaintiff and the Plaintiff for the transfer of assets, etc. as stipulated in the above bond acquisition contract and transferred the above bonds against original intent.

(3) The principal debtor paid 42,600,000 interest on bonds that became due on May 7, 2008, and on May 15, 2008, there was an overdue fault.

(4) On the other hand, on July 7, 2009, when the lawsuit of this case was pending, the plaintiff transferred the above corporate bonds to the intervenors on July 7, 2009, and notified the original intent of the transfer on July 8, 2009.

B. Sales contract between Nonparty 1 and Defendant 1

On November 3, 2007, Nonparty 1 entered into a contract to sell the real estate No. 1 to Defendant 1 for the purchase price of 2.3 billion won, and according to the above contract, Nonparty 1 completed the registration of transfer of ownership under Defendant 1 as the Seoul Central District Court No. 61652 on November 6, 2007.

(c) Sales contract for original music and digital music;

on November 6, 2007, the original music sold the third real estate in the purchase price of KRW 8,514,900,000 between Defendant Pakistan and the above money. Of the above money, KRW 2,984,90,000 shall be replaced by the sale bond against Defendant Pakistan’s original music, and KRW 530,000,00 shall be replaced by the loan bond against Defendant Pakistan’s original music, and the remaining KRW 5,000,000 shall be replaced by the loan bond against Defendant Pakistan’s original music, and the remaining KRW 5,00,000 shall be succeeded to the debt owed to the corporate bank of the Seoul Central District Court, which was received on November 6, 2007, and the registration of ownership transfer in the name of Defendant Pakistan was completed under the name of Seoul Central District Court No. 61489.

D. The contract to establish a right to collateral security between Nonparty 1, the original and Defendant Hyundai Fa

(1) On December 12, 2007, Nonparty 1 entered into a mortgage agreement with Defendant Hyundai Fa with a maximum debt amount of KRW 1,650,00,000 with respect to the second real estate. Nonparty 1 completed the registration of creation of a mortgage with the said Defendant as Daegu District Court Kim Jong-cheon on December 13, 2007, No. 40655, Dec. 13, 2007.

(2) On December 12, 2007, in relation to the 4th real estate with the Defendant Hyundai Fa on December 12, 2007, each of the contract to establish a right to collateral security with a maximum debt amount of KRW 600 million and the superficies contract with a maximum debt amount of KRW 30 million as to the 4th real estate from December 12, 2007, and the above Defendant completed the registration of creation of superficies with the Daejeon District Court No. 10007, Dec. 13, 2007, respectively.

(3) Meanwhile, on May 16, 2008, Nonparty 1 concluded a mortgage agreement with Defendant Hyundai Fa with regard to the second real estate with a maximum debt amount of 3.7 billion won, and a superficies agreement with a period of 30 years from May 16, 2008, respectively, as to the second real estate, and subsequently, Nonparty 1 completed the registration of the establishment of a superficies with the above court No. 18260 as of May 19, 2008, respectively.

(e) Status of the original asset;

(1) As of November 6, 2007, as of KRW 7,609,40,00 for the Bank of Korea, KRW 45,00,00 for the National Bank, KRW 1,800,00 for the New Bank, KRW 3,656,09,750 for the Plaintiff, and KRW 1,656,09,750 for the total amount of KRW 15,00 for the Bank of Korea's debt 20.10 for the above amount of KRW 70,00 for the Bank of Korea's debt 20.10 for the above amount of KRW 70,00 for the Bank of Korea's debt 20,00 for the above amount of KRW 1,147,00 for the Bank of Korea's debt 20,000 for the above amount of KRW 10,000 for the first 70,000 for the Credit Guarantee Fund's debt 20,000 for the above amount of KRW 17.27.10.2.

(2) Meanwhile, the market price of the third real estate was KRW 7,920,884,90, the market price of the fourth real estate was KRW 297,389,00, the market price of the fourth real estate was KRW 1,992 square meters and the market price of the third real estate was KRW 9,640,561,90, and the total market price of the third real estate was KRW 1,422,28,000 and the building was KRW 1,492, and KRW 1,992, and KRW 1,422,88,00,000. The total market price of the third real estate was KRW 18,203,031,50,500, KRW 16,727,427,976,9767,79, and KRW 47,797,975,7967,275,7967,794,2767,7,7947,27,2767,794, etc.

F. The financial status of Nonparty 1

(1) As of November 3, 2007, Nonparty 1: (a) as of the market price of the first real estate was KRW 783,064,960 (the first market price was KRW 3,683,064,960; or (b) KRW 2,900,000,000 in the title of the Industrial Bank of Korea with respect to the first real estate; (c) at that time, the Industrial Bank of Korea has a claim of KRW 7,609,40,00 for the first real estate which is the principal debtor; (d) at that time, the amount calculated by subtracting the maximum debt amount of the Industrial Bank of Korea from the original market price of KRW 1 real estate; (e) KRW 823,802,00; (e) KRW 30,90,000; and (e) KRW 190,000; and (e) KRW 3605,764,750,7967,7506,7,7697,7,5067,7,57,07,07,05,000.

(2) In addition, as of December 12, 2007, Nonparty 1 owned each real estate worth KRW 850,199,800, excluding real estate No. 1, as of December 12, 2007, and on the other hand, Nonparty 1 bears the obligation of KRW 650,00,000 for a national bank, for a new bank, KRW 957,00,00 for a new bank, and KRW 1,656,09,750 for the Plaintiff, while excluding the obligation against the Bank, Nonparty 1 bears the obligation of KRW 3,263,09,750 for the Plaintiff.

2. The parties' assertion

A. Intervenor’s assertion

The intervenor is obligated to pay the principal and interest of the bonds to the plaintiff who is the transferee of the bonds. Despite the fact that the principal debtor and the non-party 1, who is the principal debtor, had already been in excess of the debt due to several debts including the principal and interest of the bonds, the plaintiff and the non-party 1, who is the joint guarantor, concluded a sales contract or a mortgage-backed contract on each of the above real estate and completed the registration of transfer of ownership or establishment of mortgage, etc. accordingly, the plaintiff and the non-party 1's act should be revoked as a fraudulent act detrimental to the plaintiff who is the creditor. However, since the original and the defendant digital is impossible to return the original property, the defendant 1 and the defendant are liable to compensate

B. The defendants' assertion

As to this, the Defendants asserted that the Plaintiff’s corporate bonds were not realized at the time of each of the above sales contract and the collateral security contract between the Plaintiff and Nonparty 1 and the Defendants, and that there was no high probability that they would be realized in the near future. In addition, each of the above contracts cannot be deemed to have existed in the state of exceeding the obligation at the time of each of the above contracts, and each of the above contracts cannot be deemed to be a fraudulent act as a normal transaction conducted for the normalization of the financial structure of original noise, and the Defendants did not know that they would be prejudicial to

3. Determination

A. Formation of preserved claims

In principle, a claim that can be protected by the creditor's right of revocation should be caused before a juristic act which can be viewed as a fraudulent act is conducted. According to the above facts, since the Korea Investment Securities received bonds by paying the subscription price under the above bonds and received bonds, and corporate bonds against Non-party 1, a principal debtor, and a joint guarantor, a joint guarantor, have already been completed, the intervenor who acquired the above bonds from the Korea Investment Securities, may be deemed as the preserved claim of the creditor's right of revocation (However, the above corporate bonds have not yet been due at the time of each of the above contracts between the original and non-party 1 and the Defendants, by setting the maturity on November 7, 2008, which was two years after the maturity, and only because the maturity has not yet arrived, the mere fact that the bonds have not yet arrived does not constitute the preserved claim of the creditor's right of revocation).

B. Determination as to the claim against Defendant 1

(1) The establishment of the fraudulent act by Nonparty 1

In determining whether a juristic act by a joint and several sureties constitutes a fraudulent act, unless a creditor has a preferential right to payment due to the establishment of a right to collateral security in the future for a creditor with respect to a real estate owned by the principal debtor or a third party, the general financial ability of the principal debtor is not an element to consider (Supreme Court Decision 2003Da13246 Decided July 8, 2003).

According to the facts acknowledged earlier, Nonparty 1 owned active property worth KRW 1.6 billion as of November 3, 2007, while Nonparty 1 bears the obligation equivalent to KRW 3.9 billion, and thus, Nonparty 1 was in excess of the obligation at the time of selling the real estate to Defendant 1. Accordingly, the selling of the real estate to Defendant 1 constitutes a fraudulent act against the Intervenor.

The defendant 1 alleged to the effect that the act of creation of security interest of the debtor does not constitute a fraudulent act because the non-party 1 sold the real estate to a third party and repaid the debt to the Industrial Bank of Korea at that price. However, according to the evidence asserted by the above defendant 1, it cannot be deemed that the purchase fund of the first real estate does not constitute a fraudulent act until the sale of the real estate to the third party at a low price as seen in the above case where the real estate was sold to the above third party as seen in the above case, since the debtor's loan to the debtor in a situation where it is difficult to continue the business due to the financing shortage is the best way to exercise the ability to repay the debt, and unless there are special circumstances where the debtor provided the real estate as security and received the new fund additionally, the debtor's act of creation of security interest does not constitute a fraudulent act unless it is the case where the defendant 1 sold the real estate to the non-party 1 as a collateral for the loan to the non-party 1.

(2) Whether Defendant 1’s good faith

Defendant 1 asserts that the sales contract for the first real estate was concluded at least six months prior to the date of the default of payment, and that Defendant 1 did not know that it would prejudice the general creditors, including the Plaintiff at the time of the sales contract, since Defendant 1 purchased the first real estate, the market price of which is 2.4 billion won at the time of the sale by fixing the sales price as 2.3 billion won adjacent thereto.

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act, the beneficiary is responsible for proving his/her good faith in order to be exempted from his/her responsibility. In this case, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account various circumstances such as the relationship between the debtor and the beneficiary, the details and the background or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to suspect the act of disposal, and whether there are objective materials to support the act of disposal as a normal transaction, and circumstances after the act of disposal, etc. (Supreme Court Decision 2007Da74621 Decided

In light of the above facts, it is difficult to view that the Plaintiff 1 was the representative of ○○○○○○○○○, an affiliate company to purchase and sell the real estate at the time of the sale of the real estate and the fact that the current account transaction was defaulted on May 15, 2008. Defendant 1 purchased the real estate from Nonparty 1 for six months prior to the sale and purchase of the real estate at the time, and that the Plaintiff 1 was normally paying the interest during the time of the sale and purchase of the real estate after the first sale and purchase of the real estate. However, in light of the above facts, it is difficult to view that the Plaintiff 1 was the first sale and purchase of the real estate at the time of the sale and purchase of the real estate at the time of the first sale and purchase agreement as the sale and purchase price of the real estate at the time of the first sale and purchase agreement and the fact that the purchase price of the real estate was lower than the market price of KRW 2,360,000,000,000.

Therefore, Defendant 1’s above assertion is rejected.

(3) Method and scope of restitution

In a case where a juristic act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act is conducted on real estate on which a mortgage is established, such fraudulent act shall be deemed to be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where the registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally common creditors' joint security, and would result in a violation of equity. Thus, an order to restore the real estate itself by cancelling a fraudulent act would only be issued within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and such amount shall be calculated as at the time of the conclusion of fact-finding trial proceedings (see Supreme Court Decision 201Da3734, Dec. 2

According to the aforementioned evidence, Nonparty 1, after the sales contract for the first real estate, performed all obligations of the Industrial Bank of Korea, which is the right to collateral security regarding the said real estate, cancelled the right to collateral security of KRW 2.9 billion in total, and Nonparty 3, who is the right to collateral security, also discharged the right to collateral security of KRW 260 million in maximum amount. Meanwhile, the fact that the value of the first real estate as of February 20, 2009 was 3,973,841,830, and the value of the first real estate is confirmed to be the same amount unless there are any special circumstances until the date of closing argument in the trial.

Therefore, the above sales contract shall be cancelled within the limit of KRW 813,841,830, which is the value of the first real estate, after deducting the total of KRW 3,160,00,000 from the maximum debt amount of the right to collateral security established on the first real estate, as the plaintiff seeks, within the limit of KRW 813,841,830, which is the value of the third,973,841,830, which is the value of the first real estate. Defendant 1 is obligated to pay damages for delay at the rate of KRW 813,841,830 and the rate of KRW 5% per annum from the day following

C. Determination as to the claim against the defendant's strike digital persons

(1) Whether a fraudulent act was established as to original sound

An insolvent as a requirement for revocation of a fraudulent act means that there is no obligor’s ability to repay, and in particular, in a case where it is impossible to expect a voluntary repayment, repayment through a compulsory execution should be taken into account. Thus, it should be an important factor to determine whether a debtor is a small-sized property or active property, or a property that can conform to the above purpose. Meanwhile, in calculating an active property of a debtor, it should exclude a property that has no real value and is not able to serve as a joint security for a claim. In particular, if such property is a claim, it shall be included in active property only if it is determined reasonably and confirmed if it is possible to obtain a smooth repayment (see Supreme Court Decisions 2004Da2564, Feb. 10, 2006; 2005Da76753, Oct. 26, 2006, etc.).

Examining the original status of the property of December 31, 2007, near the time of sale of the third real estate to the defendant Pakistan, the original state of the property of December 31, 2007, the original state of the third real estate, as seen earlier, was found to have been in excess of the negative property since the passive property was about KRW 14.4 billion, the active property was about KRW 18.2 billion, and the active property was about KRW 18.2 billion (the current property was in excess of KRW 16 billion and KRW 2.2 billion). Meanwhile, as of November 6, 2007, the third real estate sale date, it was difficult to view that the current property was in excess of KRW 15 billion at the time of sale, while the current property was in excess of KRW 16 billion at the time of sale of the above real estate was in excess of KRW 3.7 billion at the time of sale of the real estate, it seems that there was no difference between the current property and KRW 3.7 billion at the time of sale of the real estate was in excess of KRW 37.37.15 billion.

As of December 31, 2007, the Plaintiff stated that 4.3 billion won of sales bonds, short-term loans, 1.2 billion won of outstanding bonds, and 800 million won of outstanding bonds among active assets among the original balance sheet as of December 31, 2007 exist, but such claims should be excluded from the original positive property as they have no real property value. However, the Plaintiff asserts that the aforementioned claims should be excluded from the original positive property as they are revealed by the aforementioned evidence. However, the Plaintiff’s assertion that the circumstances revealed by the aforementioned evidence, i.e., the Plaintiff, a company engaged in a car and audio-visual manufacturing and selling business, which had been engaged in a normal transaction before the bankruptcy, was kept until May 2008, and the Plaintiff continued to pay the net income for 207. The Intervenor’s credit investigation conducted on the original loan to the Industrial Bank of Korea in April 2007, it is difficult to view that the Plaintiff’s appraisal of assets as an external audit of the balance sheet is difficult in light of the aforementioned legal structure.

(2) Whether the defendant is the good faith of the digital person

나아가 피고 파인디지털은 제3 부동산을 매수할 당시 선의 수익자였다고 주장하므로 이 점에 관하여도 살펴보건대, 앞서 든 증거들과 을마 제7호증의 기재에 변론 전체의 취지를 보태어 보면, ㉠ 피고 파인디지털은 원음과 거래관계 이외에 인적 관계 등에서 특별한 관계가 존재하지는 않는 점, ㉡ 위 피고는 제3 부동산에 관한 매매계약 당시 원음에 대하여 총 3,514,900,000원의 물품대금채권과 대여금채권을 가지고 있었는데, 제3 부동산의 매매대금을 8,514,900,000원으로 정하여 그 중 3,514,900,000원은 위 채권금액으로 대체하기로 하고 나머지 50억 원은 제3 부동산에 관한 근저당권의 피담보채무인 원음의 중소기업은행에 대한 채무 중 50억 원 상당액을 인수하기로 한 점, ㉢ 이에 따라 위 피고는 2007. 11. 6. 제3 부동산에 관하여 소유권이전등기를 마친 다음 같은 날 중소기업은행의 채권최고액 합계 84억 원의 근저당권을 말소한 점, ㉣ 위 매매대금 85억 원은 위 매매계약 당시의 감정가격인 79억여 원보다 높은 가격으로 책정된 것인 점, ㉤ 제3 부동산에 관한 위 매매계약은 원음의 부도가 발생하기 약 6개월 전에 체결된 것이고, 매매계약 체결 이후에도 원음은 상당기간 사채이자를 제때에 지급하는 등 정상적인 운영을 하여 온 점, ㉥ 원음이 제3 부동산을 처분할 당시에는 원음이 여전히 다수의 부동산을 소유하고 있었던 점, ㉦ 특히 원음은 제3 부동산의 매도 후로서 이 사건 소송 이전에 원상회복을 위해 피고 파인디지털을 상대로 제3 부동산에 관한 소유권이전등기말소청구의 소를 제기하였다가 패소판결을 받은 점 등을 알 수 있는바, 이러한 여러 사정을 종합하면 피고 파인디지털은 제3 부동산의 매수 당시 원고 등 일반채권자를 해함을 알지 못하였다고 봄이 상당하다.

(3) Sub-determination

Therefore, the intervenor's argument that the third real estate purchase act of the defendant Pakistan digital constitutes a fraudulent act is without merit.

D. Determination as to the claim against Defendant Hyundai Maternia

(1) Whether the fraudulent act was established

(A) Whether Nonparty 1’s fraudulent act (as to Nonparty 2’s real estate)

According to the facts acknowledged earlier, Nonparty 1 owned each real estate worth KRW 850,199,80 in total with active property at the time of December 12, 2007, and on the other hand, even if excluding obligations to the Industrial Bank of Korea, Nonparty 1 was liable for totaling KRW 3,263,09,750, and thus, Nonparty 1 was in excess of the liability at the time of establishment of the right to collateral security and superficies on the real estate on December 12, 2007, and on May 16, 2008, it appears that there was no change in any property other than the establishment of the right to collateral security and superficies on the second real estate. Accordingly, it should be revoked, barring special circumstances, since Nonparty 2’s act of creation of collateral security and superficies on May 16, 2008 constitutes a fraudulent act.

(B) Whether a fraudulent act constitutes original intent (as to the fourth real estate)

The judgment of the court below is justifiable in light of the legal principles as seen earlier. The court below did not err by misapprehending the legal principles as to the right to collateral security, etc. as to the right to collateral security as to the 4th real estate and the right to collateral security as to the 4th real estate and the right to collateral security as to the 4th real estate at the time of the establishment of the right to collateral security and superficies, and there is no other evidence to acknowledge it otherwise.

(2) Whether the Defendant Hyundai Madern Madern was bona fide

Defendant Hyundai Corruption concluded each of the above contracts with Mexico.com, Inc. (hereinafter “Mexico.”), which is an affiliate company of original music, for the purpose of securing its claim for the purchase of goods, and argued to be a bona fide beneficiary. As such, Defendant Hyundai Corruption agreed to provide the entire purport of pleadings in each of the entries of evidence Nos. 2-1 through No. 6-2, including superficies No. 500,000, the total maximum debt amount of KRW 106,000,000, KRW 205,000,000, KRW 306,000,000,000,000, and KRW 30,000,000,000,000,000, KRW 30,000,000,000,000,000,000,000,000,000,000,000 won.

이러한 사실에 더하여, 앞서 든 증거들에 의하여 알 수 있는 사정, 즉 ㉠ 피고 현대위아는 원음의 계열사인 멕스텍닷컴과 거래관계가 있다는 것 이외에는 원음이나 소외 1과 인적관계 또는 거래관계가 없는 것으로 보이는 점, ㉡ 위 피고는 멕스텍닷컴에 대하여 실제 채권을 가지고 있어 이를 담보하기 위하여 위 각 근저당권 및 지상권을 설정한 점, ㉢ 제2 부동산에 선순위의 근저당이나 가압류 등이 없어 채무상태가 좋지 않다고 판단할 만한 사정이 없었던 점(제2 부동산에 관하여 채권최고액 합계 12억 원의 중소기업은행 명의의 선순위 근저당권과 지상권이 설정되어 있었을 뿐이고, 위 각 등기 또한 2008. 2. 19. 말소되었다), ㉣ 제2 부동산에 관한 2007. 12. 12.자 근저당권 설정계약은 원음의 부도가 발생하기 약 6개월 전에 체결된 것이고, 위 계약 체결 이후에도 멕스텍닷컴이나 원음은 상당기간 정상적인 운영을 하여 온 것으로 보이는 점, ㉤ 한편 위 2008. 5. 16.자 근저당 및 지상권 설정계약은 원음의 부도 다음날에 체결된 것이기는 하나, 원음과 직접적인 거래관계가 없던 피고 현대위아로서는 그 사실을 곧바로 알기는 어려웠을 것으로 보이는 점, ㉥ 피고 현대위아는 2008. 1. 22. 추가 공급약정에 따른 채권을 담보하기 위하여 멕스텍닷컴에 추가적인 담보를 요구하였으나, 제2 부동산 이외에 별다른 담보를 제공하지 못하자 제2 부동산에 관하여 다시 근저당권과 지상권을 설정한 것으로 보이는 점(2007. 12. 12. 원음의 제2 부동산에 관하여 근저당권을 설정한 다음 2008. 2. 19. 선순위의 채권최고액 합계 12억 원의 근저당권과 지상권이 각 말소된 후, 2008. 5. 19. 위와 같이 추가로 피고 현대위아 명의의 근저당권 및 지상권이 설정되었다) 등을 종합적으로 고려하여 보면, 2007. 12. 12. 각 근저당권 설정계약 및 지상권 설정계약뿐만 아니라 2008. 5. 16. 근저당권 및 지상권 설정계약 체결 당시, 피고 현대위아는 원음과 소외 1로부터 제2, 제4 부동산에 관하여 근저당권 및 지상권을 설정하는 행위가 다른 채권자들을 해하는 사해행위가 된다는 사정을 알지 못한 채, 통상적이고 정상적인 거래를 통해 가지고 있는 물품대금채권을 담보하기 위하여 근저당권 및 지상권을 설정받았다고 봄이 상당하다.

(3) Sub-determination

Ultimately, among each of the mortgage and superficies contracts of Defendant Hyundai Madern Child, the mortgage contract of December 12, 2007, and the mortgage and superficies contract of May 16, 2008, which were concluded in excess of the debt of Nonparty 1, which were concluded in excess of the debt of Nonparty 1, and thus constitute a fraudulent act. However, since all of the defendant Hyundai Madern Madern was concluded without knowing that it would prejudice the creditor, it cannot be revoked. Meanwhile, it is difficult to recognize the fraudulent act itself itself as it is difficult to recognize that the mortgage and superficies contract on the 4th real estate of Defendant Hyundai Madon was in excess of the original debt at the time, and it is concluded without knowing that Defendant Hyundai Madern Madern was harmful to the creditor, and thus it cannot be cancelled.

4. Conclusion

Therefore, the plaintiff's claim is justified only for the part of the claim against the defendant 1, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair for this conclusion, the plaintiff's appeal is partially accepted, and the part against the plaintiff as to the claim against the defendant 1 among the judgment of the court of first instance is revoked, and the plaintiff's claim as to the corresponding part is accepted, and the remaining appeal of the intervenor is dismissed as per Disposition.

[Attachment]

Judges Park Jong-nam (Presiding Judge)