(2) The Korea Credit Guarantee Fund (Attorney Kim-type et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Choi Dong-sik, Counsel for the defendant-appellant)

September 29, 2009

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. The sales contract concluded on November 9, 2005 between Defendant 1 and Nonparty 2 on the real estate stated in the separate sheet shall be revoked.

2. As to the real estate stated in the attached list, Defendant 2 shall implement the procedure for the cancellation of the registration of co-ownership transfer, which was completed on May 21, 2009 by the Yongsan District Court of the Seoul Western District Court No. 18702, and Defendant 1 shall implement the procedure for the cancellation of the registration of co-ownership transfer, which was completed on November 9, 2005 by Nonparty 2, the receipt of which was completed on November 9, 2005.

1. Basic facts

A. On April 13, 2004, the Plaintiff concluded a credit guarantee agreement with the non-party company: (a) the guarantee limit of 170,000,000 won; (b) the guarantee period from April 13, 2004 to April 12, 2005 (the extension to April 12, 2006 during the guarantee period); (b) the guarantee limit of 170,000,000 won on April 27, 2005; (c) the credit guarantee agreement with the guarantee period from April 27, 2005 to April 26, 2006; and (d) the credit guarantee agreement with the non-party company from September 19, 2003 to September 19, 2003 to September 18, 2004; and (e) the credit guarantee agreement with the non-party company as the credit guarantee guarantee agreement, respectively, extended to the non-party 36,2003.

B. In the conclusion of each credit guarantee agreement in this case, the Plaintiff and the non-party company agreed to pay ① the amount subrogated by the Plaintiff and damages for delay in accordance with the interest rate determined by the Plaintiff based on the relevant statutes, the Plaintiff’s operational manual and the provisions on credit guarantee, ② the execution and preservation of the indemnity claim acquired by the Plaintiff as a result of the performance of the guaranteed obligation, and the expenses incurred in the process of legal procedures therefor.

C. The non-party company provided a credit guarantee letter issued by the plaintiff under the credit guarantee agreement as above 1 and 2. The non-party company borrowed 200 million won on April 13, 2004 from the above bank and 28.200 million won on April 23, 2005 from the above bank. The non-party company provided the credit guarantee letter issued by the plaintiff under the credit guarantee agreement as above 3. The non-party company provided it to the new bank (the second to the new bank) and borrowed 47 million won on September 23, 2003 from the above bank.

D. Around December 1, 2005, the non-party company lost profits from each of the above loans due to natural enterprises. On February 24, 2006, the plaintiff paid to the National Bank a total of KRW 348,624,122 (principal KRW 340,00,000 + interest KRW 8,624,122), and on May 4, 2006, the non-party company paid a total of KRW 36,74,108 (principal + interest KRW 35,70,000 + interest KRW 1,074,100 + interest KRW 1,074,108) to the New Bank respectively. After that, the plaintiff collected KRW 122,32,212 and KRW 263,06,018, KRW 36,156, KRW 157,97, KRW 379,379,97,09, KRW 379,209,37.

E. On November 9, 2005, Nonparty 2 sold the real estate indicated in the attached list (hereinafter “instant real estate”) which is the only property of Nonparty 2, to Defendant 1, who is the birthee, and on the same day, completed the registration of ownership transfer as to the instant real estate in Defendant 1’s claim on the same day. Moreover, Defendant 1 sold the instant real estate on May 21, 2009, and on the same day, completed the registration of ownership transfer as to the instant real estate on the same day.

F. Meanwhile, on the other hand, on January 25, 2007, Nonparty 2 made bankruptcy and application for immunity (Seoul District Court 2007Da37577) and was decided around July 27, 2007 after being granted immunity.

[Ground of recognition] Facts without dispute, Gap evidence 1 to Gap evidence 8-2 (including provisional number), Eul evidence 1-1 to 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff’s claim for indemnity occurred on February 24, 2006 and May 4, 2006, which was subrogated by the Plaintiff, and this was not established at the time of the sales contract between Nonparty 2 and Defendant 1. However, the first guarantee, which was based on its establishment, was not only concluded prior to the sales contract, and it was highly probable that the claim for indemnity should be established based on the above legal relations in the near future, and it was realized on February 24, 2006 and May 4, 2006, and the above claim for indemnity was established. Thus, the Plaintiff’s claim for indemnity is subject to the obligee’s right of revocation. Furthermore, since Nonparty 2 exceeded the obligation by selling the instant real estate, which is its sole property, to Defendant 1, it is presumed that Nonparty 2’s intention is presumed, and since it is presumed in bad faith by the Defendants, each sales contract of this case as stated in the purport of claim, should be cancelled as a fraudulent act and its registration should be restored to its original state.

B. The defendants' assertion

Inasmuch as Nonparty 2 was granted immunity on July 27, 2007, Nonparty 2 cannot exercise the right of revocation of fraudulent act by taking the claim for reimbursement against Nonparty 2 extinguished Plaintiff’s non-party 2 as the preserved claim, and even if not, the Defendants constitute a bona fide party since they purchased the instant real estate normally and completed the registration of transfer of ownership.

3. Determination

First of all, it should be premised on whether the creditor can exercise the right of revocation on the ground of the above-mentioned claims as preserved claims, and whether the creditor's right of revocation can exercise his claim against the debtor as a system to preserve the debtor's responsible property. The main text of Article 566 of the Debtor Rehabilitation and Bankruptcy Act provides that "the debtor who has received the exemption shall be exempted from all obligations to the bankruptcy creditors except dividends under the bankruptcy procedure." However, there are exceptional provisions that the debtor shall not be exempted from the liability only for certain obligations under the proviso. Thus, when the debtor is granted the immunity in the bankruptcy procedure, it is not allowed to exercise the right of revocation on the ground of the bankruptcy claim as preserved claims unless the debtor's claim does not constitute grounds for exception under the proviso of Article 566 of the above Act (see Supreme Court Decision 2008Da25978, Jun. 26, 2008). In light of these legal principles, the plaintiff's right of revocation on the ground of the claim for indemnity in this case cannot be allowed by making the plaintiff's right of revocation.

In light of the above facts, the Plaintiff asserted that the Plaintiff’s claim for indemnity constitutes an exception under Article 566 proviso 7 of the Debtor Rehabilitation and Bankruptcy Act, in light of the fact that Nonparty 2 intentionally failed to enter the Plaintiff’s claim for indemnity in the creditors’ list at the time of filing an application for exemption, although it was well known that the Plaintiff’s claim for reimbursement was extinguished by the credit accident at the time of filing an application for exemption of loan to the National Bank and the new bank, and that the Plaintiff did not intentionally indicate it in the creditors’ list at the time of filing an application for exemption of loan, the Plaintiff’s claim for indemnity amount constitutes an exception under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act. According to the above evidence and evidence No. 1-4, and each fact inquiry by this court, it is difficult to view that the Plaintiff’s claim for indemnity amount arising from the Plaintiff’s subrogation against the National Bank and the new bank did not constitute a non-party 2’s claim for exemption on February 24 and May 4, 2006.

If so, the right to revoke the fraudulent act cannot be exercised by making the above-mentioned immunity claim as the preserved claim. Therefore, the plaintiff's claim is without merit without examining it.

4. Conclusion

Therefore, all of the plaintiff's claims shall be dismissed as it is without merit.

[Attachment of List]

Judges Kim Tae-ho (Presiding Judge)