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1. The contract to establish a right to collateral security concluded on May 8, 2018 between the Defendant and C regarding each real estate listed in the separate sheet.
Reasons
1. Basic facts
A. On April 26, 2018, the Plaintiff lent C a total of KRW 12 million on April 28, 2018, and KRW 50 million on April 28, 2018.
B. The Defendant lent C a total of KRW 150 million on March 28, 2018 and KRW 150 million on March 30, 2018. The Defendant’s spouse D lent C a total of KRW 300 million on April 16, 2018.
C. C entered into a mortgage agreement with the Plaintiff on May 8, 2018 with respect to each real estate listed in the separate sheet (hereinafter “each of the instant real estate”) under excess of debt, and completed the registration of creation of mortgage (hereinafter “registration of this case”) with the maximum debt amount of KRW 500 million in the future of the Plaintiff.
[Reasons for Recognition: Evidence A (Partial number omitted, hereinafter the same shall apply) Nos. 1, 2, and 3
(2) Each entry in Eul evidence Nos. 1 and 2, the inquiry result of this court's fact-finding, the purport of the whole pleadings
2. According to the above facts finding as to the cause of the claim, the joint collateral of other general creditors is reduced by setting up and granting a collateral on each of the instant real estate so that C already in excess of the obligation can only obtain preferential reimbursement against the Defendant who is one of the creditors, compared with other creditors. Thus, the instant contract constitutes a fraudulent act.
(see Supreme Court Decision 2005Da47106, 47113, 47120, Feb. 14, 2008). Thus, barring any special circumstance, the instant contract should be revoked, and the Defendant has the duty to delete the registration of this case to C by restitution to its original state.
(1) On March 3, 2006, the defendant's assertion is proved to be a bona fide beneficiary who did not know whether C had been in excess of the obligation at the time of the contract in this case, and thus, the beneficiary was unaware of the fact in the lawsuit seeking revocation of the fraudulent act. The beneficiary bears the burden of proof, and at this time, the beneficiary was bona fide at the time of the fraudulent act.