Korea Credit Guarantee Fund (Attorney Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Geumyang, Attorneys Kim Jae-hee, Counsel for the defendant-appellant)

October 8, 2015

Jeonju District Court Decision 2014Gahap4797 Decided November 14, 2014

1. Revocation of a judgment of the first instance;

2. The transfer agreement on February 7, 2014 between the co-defendant 1 of the first instance trial and the defendant on each real estate listed in the separate sheet between the defendant shall be revoked.

3. The Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed on March 6, 2014 by the receipt No. 1617 of the receipt on March 6, 2014, with respect to each real estate listed in the separate sheet to the co-defendant 1 (the Nonparty 1) of the first instance trial.

4. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The plaintiff's assertion

The co-defendant 1 of the first instance court decided to transfer each real estate (hereinafter referred to as "each real estate of this case") recorded in the separate sheet (hereinafter referred to as "each of the real estate of this case"), which is the property owned by Nonparty 1, to the defendant in order to be exempted from compulsory execution due to difficulty from 2013, although the co-defendant 2 of the first instance court borne the liability for reimbursement exceeding KRW 300 million against the plaintiff, and the defendant decided to transfer the ownership of each of the real estate of this case to the defendant through legal proceedings. Accordingly, on January 27, 2014, the defendant was entitled to transfer the ownership of each of the real estate of this case with the title through the legal proceedings and the ownership transfer of the real estate of this case to the defendant on the ground that the non-party 1 (the non-party 1): the non-party 2 (the non-party 1: the non-party 2) did not submit to the defendant a written reply to the effect that the non-party 1) was transferred to the defendant on the date of this case.

2. Facts of recognition;

A. On June 24, 2008, the Plaintiff entered into a credit guarantee agreement (hereinafter “the instant credit guarantee agreement”) with the following contents, and Nonparty 1 (the Nonparty 2: the Nonparty 2) jointly and severally guaranteed the obligation to be borne by the Plaintiff pursuant to the instant credit guarantee agreement.

Article 2 (Limit Amount and Limit Trading Period): 300 million won trading period: from June 24, 2008 to June 23, 2009, Article 12 (Scope of Repayment) (1) In the event that new (Plaintiff) has performed the guaranteed obligation, he/she (foreign 2) and his/her joint guarantor (foreign 1 (foreign 1 (2)) shall immediately repay the amount falling under any of the following subparagraphs:

B. On June 25, 2008, the Plaintiff issued a credit guarantee certificate with respect to the loan obligation that Nonparty 2 received from a single bank. Nonparty 2 was loaned KRW 350 million from a single bank on the basis of the credit guarantee certificate.

On June 25, 2008, 297,50,000 on June 25, 2008, 297, 500,000 joint and several surety of the Guarantee Bank, which is included in the main sentence, non-party 1 (non-party 1) of the △△△ branch of Han Bank on May 30, 2014

C. When Nonparty 2 was not repaid a loan to Han Bank, on June 30, 2014, the Plaintiff paid the principal amount of KRW 306,273,051 on behalf of Nonparty 2 on behalf of Han Bank (= Principal KRW 296,092,276 + Interest KRW 10,180,775 + Interest KRW 10,775). In order to preserve the claim for reimbursement against Nonparty 2 and Nonparty 1 (Counter-party 2 and Nonparty 1), the Plaintiff filed an application for provisional attachment of real estate against the real estate owned by Nonparty 2 and Nonparty 1 (Counter-party 1) and disbursed the expenses and recovered part of the expenses (the expenses the Plaintiff failed to recover out of the expenses required for the current legal procedures are KRW 661,342).

D. Meanwhile, on January 23, 2014, the Defendant filed a lawsuit seeking the implementation of the procedure for ownership transfer registration (hereinafter “instant lawsuit”) on the ground that the acquisition by possession of each of the instant real estate was completed for twenty (20) years from March 31, 1992 and the acquisition by prescription was completed in the instant lawsuit filed on February 5, 2014 by Nonparty 1 (the Nonparty 1: the Nonparty 1) filed an application for a provisional disposition against the real estate disposal on each of the instant real estate owned by Nonparty 1 (the Nonparty 1) in excess of his/her obligation at the time of the Jeonju District Court Decision 2014Kadan41, 2014. On January 27, 2014, Nonparty 2 (the Nonparty 1: the Nonparty 2) filed a written reply recognizing all of the Defendant’s assertion with the Defendant on February 5, 2014, and the written reply was served on the Defendant on February 27, 2014.

E. On February 10, 2014, the Jeonju District Court rendered a decision to recommend reconciliation to the Defendant, on March 31, 2012, ordering the Defendant to implement the procedure for the registration of ownership transfer on the ground of the completion of the statute of limitation for the possession of each of the instant real estate. The decision to recommend reconciliation became final and conclusive on February 28, 2014.

F. On March 6, 2014, the Defendant completed the registration of ownership transfer based on the “the completion of the prescription for the acquisition of possession by March 31, 2012” with respect to each of the instant real estate.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 6, Eul evidence Nos. 1 and 3 (including various numbers), the purport of the whole pleadings

3. Determination

(a)the existence of preserved claims;

1) Although it is necessary to say that a claim protected by the obligee’s right of revocation was, in principle, incurred prior to the commission of an act that can be viewed as a fraudulent act, even if it is a future claim, there has already been legal relations that serve as the basis for the establishment of a claim at the time of such fraudulent act, and there is high probability that a claim should be established in the near future by such legal relations. In the near future, where a claim has been created due to its realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2000Da64038, Nov. 26, 2002).

2) According to the above facts, the plaintiff paid the principal and interest of the non-party 2 to the non-party 1 (the non-party 1) by subrogation under the credit guarantee agreement of this case (i.e., subrogation amount of KRW 306,934,393 (the non-party 2) (i.e., subrogation amount of KRW 306,273,051) + indemnity amount of non-party 1 out of legal procedure costs (61,342) and damages for delay. However, as mentioned in the above 1.D. (e., the non-party 1 (the non-party 2) had a high probability of establishing a claim for the non-party 1 (the non-party 1)'s claim for the registration of transfer of ownership of each of the real estate of this case due to the non-party 2's occurrence of a lawsuit seeking the implementation of the procedure for the registration of transfer of ownership to the non-party 1 (the non-party 2's claim for indemnity of this case).

B. Whether the fraudulent act was established

1) Article 406(1) of the Civil Act provides that “When an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee, the obligee may file a claim with the court for its revocation and restitution to its original state.” Thus, first, we examine whether there exists a juristic act between the Defendant and Nonparty 1 (the Nonparty 1) for the purpose of transferring the ownership of each real estate of this case, the Plaintiff sought revocation by the lawsuit of this case.

2) Although the Defendant filed a lawsuit against Nonparty 1 (non-party 1) seeking the implementation of the procedure for the registration of ownership transfer regarding each of the instant real estate on the ground of “the completion of the prescription period for possession on March 31, 2012,” the above facts are as follows: (a) the obligor and the non-party 1 were stated in the following facts: (b) the obligor and the non-party 2 were not entitled to the revocation of the registration of ownership transfer on the non-party 1’s own real estate; (c) the obligor and the non-party 4 were not entitled to the revocation of the registration of ownership transfer on the non-party 1’s own real estate on the ground of the non-party 1’s fraudulent act and the non-party 1’s revocation of the registration of ownership transfer on the non-party 1’s own real estate on the ground of the non-party 2’s revocation of the prescription period for each of the instant real estate on the non-party 1’s own acquisition of ownership; (c) the non-party 1’s signature and the defendant 4.

3) Thus, the defendant's assertion against the non-party 1 (the non-party 1 (the non-party 1 (the non-party 1) sought the implementation of the procedure for the registration of ownership transfer of each of the real estate of this case, and the most juristic act aimed at transferring the ownership of each of the real estate of this case between the defendant and the non-party 1 (the non-party 1 (the non-party 1) cannot be deemed to exist. The non-party 1 (the non-party 1) filed a lawsuit against the non-party 1 (the non-party 1) seeking the implementation of the procedure for the registration of ownership transfer on the ground of the completion of the prescription of possession transfer of each of the real estate of this case against the non-party 1 (the non-party 1) and the non-party 1 (the non-party 1): the non-party 1 (the counter-party 1) and the non-party 1 (the non-party 1) are presumed to have agreed to transfer the real estate of this case to the non-party 1 (the counter-party 27).

4) Accordingly, the defendant defense to the effect that the above transfer agreement with the non-party 1 (the counter-party 1) was bona fide due to the non-party 1's failure to know that it was a fraudulent act, but the evidence alone presented by the defendant is insufficient to reverse the presumption that the defendant

5) Therefore, even where a debtor’s juristic act becomes null and void due to a false conspiracy, it is subject to creditor’s right of revocation (see Supreme Court Decision 97Da50985, Feb. 27, 1998, etc.). Thus, the agreement on the transfer of real estate between the non-party 1 (the non-party 1) and the defendant on each of the instant real estate should be revoked, and the registration of the transfer of ownership on each of the instant real estate that was completed in the future of the defendant

3. Conclusion

Therefore, the plaintiff's claim against the defendant is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is accepted. It is so decided as per Disposition.

[Attachment]

Judges 2-2 (Presiding Judge)