Korea Credit Guarantee Fund (Attorney Han Young-soo, Counsel for defendant-appellant)

Defendant (Attorney Kim Jong-l et al., Counsel for the defendant-appellant)

March 5, 2008

Seoul Northern District Court Decision 2006Gadan92179 Decided August 23, 2007

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The sales contract of April 1, 2006 with respect to the real estate listed in the separate sheet between Nonparty 1 and the Defendant (hereinafter “instant real estate”) shall be revoked within the scope of KRW 30,077,367. The Defendant shall pay to the Plaintiff the amount calculated at the rate of KRW 30,077,367 per annum from the day following the conclusion of the instant judgment to the day of full payment.

1. Facts of recognition;

The following facts may be acknowledged by each entry in Gap evidence 1 to 11, and Eul evidence 1 to 8 (including paper numbers), unless there is a dispute between the parties or by each entry in Gap evidence.

A. On June 7, 2002, when Nonparty 2 and Nonparty 2 obtain a loan from the Bank set-off branch, the Plaintiff entered into a credit guarantee agreement with Nonparty 2, and issued a credit guarantee agreement on the same day to guarantee the payment of the principal and interest of the loan from June 7, 2002 to June 5, 2003 (the guarantee period thereafter is extended on several occasions to June 3, 2006).

B. At the time of entering into a credit guarantee agreement, Nonparty 1 jointly and severally guaranteed the liability for reimbursement against the Plaintiff by Nonparty 2.

C. On June 7, 2002, the Bank set-off North Korea branch borrowed KRW 30,000,000 to Nonparty 2 (hereinafter “instant loan”).

D. On May 17, 2006, Nonparty 2 lost the benefit of time due to the delay in the payment of the principal and interest of the loan due to the closure and closure of business. On October 9, 2006, the Plaintiff subrogated to the above bank for the total of KRW 26,529,920 (the loan principal + interest KRW 25,500,000 + interest KRW 1,029,920) on behalf of Nonparty 2, and the Plaintiff’s claim for reimbursement based on July 26, 2007 (the subrogated payment of KRW 26,529,920 + final damages + KRW 130,990 + statutory procedural expenses + KRW 243,70).

E. Meanwhile, on April 1, 2006, Nonparty 1 sold the instant real estate to the Defendant (hereinafter “the instant sales contract”) and completed the registration of ownership transfer in the Defendant’s future (hereinafter “the instant transfer registration”) with respect to the said real estate as the registration of the District Court and the receipt No. 30665 on April 6, 2006.

F. On July 26, 2006, the non-party 1 was declared bankrupt and the application for immunity was filed on September 22, 2006, and the non-party 1 was released from immunity on September 22, 2006. The plaintiff, who is a bankruptcy creditor, filed an application for revocation of immunity (the Gu Government District Court 2007 28) but was dismissed on January 17, 2008.

2. The parties' assertion and judgment

A. The plaintiff's assertion

(1) The instant sales contract between Nonparty 1 and the Defendant constitutes a fraudulent act and detrimental to the obligee, including the Plaintiff, and thus, ought to be revoked.

(2) Since the Defendant paid KRW 49,600,000 of the secured debt of the right to collateral security established on the instant real estate after completing the registration of ownership transfer with respect to the instant real estate, the Defendant shall compensate the Plaintiff for the amount of KRW 30,077,367, which is the Plaintiff’s claim amount, out of the balance remaining after deducting the above repayment amount from the market price of KRW 115,00,000 at the

B. Defendant’s assertion

Inasmuch as Nonparty 1’s claim against Nonparty 1 upon receipt of a decision to grant immunity was natural debt, the lawsuit seeking revocation of the fraudulent act in this case is not permissible.

C. Determination

Therefore, I first examine whether the right of revocation of fraudulent act is allowed with respect to the claim subject to bankruptcy and immunity as preserved claim.

The obligation for which a decision to grant immunity has become final and conclusive is natural obligation against the bankruptcy creditor who is exempt from the obligation, and the creditor may not request performance as a lawsuit or enforce compulsory execution against it. On the other hand, the right to revoke a fraudulent act is exercised prior to the compulsory execution against the property restored to the original state due to the revocation of the fraudulent act, and even if the right to claim for direct compensation against the creditor by the method of restitution is exercised together with the revocation of the fraudulent act, the purpose of exercising the right to revoke the fraudulent act is to seek the compulsory realization of the claim through the revocation of the legal act. Therefore, it is reasonable to view that the creditor who is unable to enforce the obligation according to the debtor's decision to grant immunity is not allowed to exercise the right to

Ultimately, the plaintiff's right to revoke the fraudulent act based on the plaintiff's claim for reimbursement, which is the object of exemption in this case, is defective in the premise of its exercise, and the plaintiff cannot seek revocation of the fraudulent act against the sales contract in this case that was made before the non-party 1 declared bankrupt or exemption.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without any need to review the remaining points, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

[Attachment List omitted]

Judges Sick-up (Presiding Judge)