Seoul Central District Court-2015-Ga group-5349439 (06.01)

debtor's act of offering security of real estate owned by a specified creditor constitutes a fraudulent act.

An act of a debtor in excess of his/her obligation to provide real estate owned by him/her to any one of the creditors as collateral for claims constitutes a fraudulent act in relation to other creditors, unless there are special circumstances.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2016Na203762 Revocation of Fraudulent Act

1. Korea;

1. Park A;

October 12, 2016

November 11, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

With respect to real property listed in the Schedule:

A. The purchase and sale reservation entered into on August 4, 2014 between the Defendant and ParkB shall be revoked.

B. The Defendant: (a) received on August 14, 2014 from ParkB as the Seoul Central District Court Registration Office No. 178383, Mar. 3, 2014

The procedure for the cancellation registration of the right to claim the transfer of ownership will be implemented.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, and this case’s reasoning is cited by the main text of Article 420 of the Civil Procedure Act, because it is the same as the reasoning for the judgment of the first instance.

○ At the end of the second half of the judgment of the first instance, the phrase “(the taxation claims of this case)” is added at the end of the second half of the judgment of the first instance.

○ The taxation claims of the Plaintiff, 4, 1, and 2, at the lower end of the three pages of the judgment of the first instance court, shall be revised to “the instant taxation claims”.

○ In four pages of the first instance judgment, "for security of existing claims" is deleted.

○ On July 1, 2014, the first instance court’s 4th 11th 7th 2007 to 2013 read “B lending KRW 500 million from 2007 to 2013,” which read “B, from 2007 to 360,000 won, a total of KRW 400,000 to 360,000 to 200,000 won.”

○ The portion from 5 pages 1 to 11 of the judgment of the first instance court shall be amended as follows:

Unless there are special circumstances, an obligor’s act of offering real estate in excess of debt to any one of the creditors, as collateral security, constitutes a fraudulent act in relation to other creditors. However, barring any special circumstance, it is the best way for an obligor to continue his/her business by financing funds in a situation in which it is difficult to continue his/her business due to the financial crisis to realize the business, and barring any special circumstance, barring any special circumstance, an obligor’s act of creating security rights does not constitute a fraudulent act if the obligor provided real estate to a specific creditor as collateral and received new funds additionally (see Supreme Court Decision 200Da5015, May 8, 2001).

However, ParkB borrowed new funds of KRW 40 million from the Defendant on July 1, 2014, and KRW 360 million on October 17, 2014, and KRW 400 million on which the Defendant entered into a pre-contract for the sale and purchase of this case for the purpose of security and completed the provisional registration of this case, each of the descriptions of Nos. 6, 7, and 8, and testimony of ParkB by the witness of the first instance trial is difficult to believe it as it is, and it is insufficient to recognize it only with the descriptions of No. 2, No. 5-1, and No. 2, and No. 5, and no other evidence exists to support it. Accordingly, the Defendant’s above assertion is without merit.

2. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.