Korea Credit Guarantee Fund (Law Firm Hun-Ma, Attorneys Kim Jong-Hy et al., Counsel for the defendant-appellant)

Defendant (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

October 18, 2017

Suwon District Court Decision 2013Da163256 Decided September 27, 2016

1. The defendant's appeal is dismissed.

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

1. Purport of claim

A sales contract concluded on November 30, 2012 with respect to each real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) between the Defendant and Nonparty 1 (the Nonparty: Nonparty 1) is revoked. The Defendant will implement the procedure for registration of cancellation of ownership transfer registration, which was completed on November 30, 2012 with respect to the instant real estate, with respect to Nonparty 1’s Republic of Korea District Court’s annual District Court registry office, 15270.

2. Purport of appeal

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

1. Basic facts

A. On October 9, 2007, the Plaintiff entered into a credit guarantee agreement (hereinafter “the instant credit guarantee agreement”) with the Worldnet Co., Ltd. (hereinafter “Sanet”) and with respect to the obligation to issue an import letter of credit to the Korea Exchange Bank (hereinafter “Korea Exchange Bank”), and issued a credit guarantee agreement with the non-party company as to the obligation to issue an import letter of credit (hereinafter “the instant credit guarantee agreement”) from October 9, 2007 to October 6, 2008 (e.g., the coverage amount was changed to 864,00,000,000, and the term of guarantee was changed to December 24, 2012).

B. At the time of the credit guarantee agreement of this case, Nonparty 1, the representative director of the non-party company, as the credit guarantee agreement of this case, jointly and severally guaranteed all obligations, such as indemnity liability, to be borne by the plaintiff.

C. On December 21, 2012, the non-party company: (a) caused a credit guarantee accident caused by an accident on the grounds of “the unpaid L/C payment due to the sudden increase in business; (b)” (c) on March 14, 2013, the Plaintiff subrogated to the Korea Exchange Bank for the total amount of KRW 795,930,451 (i) principal and interest of the non-party company’s other non-party substitute substitute payments (= principal amount of KRW 788,368,288 + interest, KRW 7,562,163).

D. On November 30, 2012, Nonparty 1 completed the registration of ownership transfer (hereinafter “instant registration of ownership transfer”) based on the purchase and sale (hereinafter “instant sales contract”) on November 30, 2012, from the Jung-gu District Court’s annual registry office received on the instant real estate owned by himself/herself on November 30, 2012.

E. At the time of the conclusion of the instant sales contract, Nonparty 1’s active property, the instant real estate (the market price of KRW 319,742,880 at that time) was the only real estate with property value (the Nonparty 1 owned 1/2 co-ownership shares in ○○○○○○ Dong △△△△△△△, Songpa-gu, Seoul, but the value at the time of the said co-ownership was 350,000,000 won. However, at the same time, Nonparty 1 and Nonparty 637,000,000 (the secured debt amount of KRW 490,000), which was set up for the entire apartment as a collective security for the entire apartment), was a small property to exceed the debt amount of KRW 795,930,451, and the debt amount of KRW 490,000,000 against the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13 (including virtual numbers; hereinafter the same shall apply), fact-finding results and the purport of the whole pleadings of this court

2. Whether a subsequent appeal is lawful;

A. According to the records, the first instance court’s judgment is recognized that: (a) served a duplicate of the complaint against the Defendant, notice of the date of pleading, etc. by public notice, and the pleading was underway; (b) served the entire Plaintiff’s claim on September 28, 2016; and (c) served the original copy of the judgment to the Defendant by public notice; and (d) on December 27, 2016, the Defendant perused the records in the case of filing a lawsuit order regarding a provisional disposition against disposal of the instant real estate in relation to the provisional disposition against disposal of the instant real estate and became aware of the first instance judgment on January 10, 2017, and filed an appeal against the instant subsequent completion on January 10, 2017.

B. According to the above facts, the defendant was unable to comply with the appeal period because he was unaware of the delivery of the judgment without negligence, and there is no reason to view the intention of the peremptory period as the defendant's liability. Therefore, the appeal of this case is a lawful appeal that satisfies the requirements for the subsequent completion of litigation.

3. Determination

(a)the existence of preserved claims;

1) In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, there is high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of a claim, and that the claim should be established in the near future in the near future, and where a claim has been created as a result of 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 2005Da20361, Jun. 23, 2005).

2) According to the above facts, although at the time of November 30, 2012, the date when the contract of this case was concluded, the credit guarantee agreement of this case was already concluded, which is the basis for the establishment of the claim for indemnity, and the credit guarantee accident occurred on the ground of the non-party company's "non-party 1" after the date when the contract of this case was concluded and 21 days after the date when the contract of this case was concluded, it is highly probable that the plaintiff's claim for indemnity against the non-party 1 was established in the near future. In fact, it is highly probable that the plaintiff's claim for indemnity against the non-party 1 was established by acting on behalf of the plaintiff in accordance with the credit guarantee agreement of this case. Thus, the plaintiff's claim for indemnity can be the preserved claim of this case.

B. Establishment of fraudulent act

1) In calculating active property, any property which cannot serve as a joint security for claims because it has no real property value, unless there are other special circumstances (Supreme Court Decisions 2004Da58963 Decided January 28, 2005). An act of an obligor in excess of debt, which sells and consumes real estate, is its sole property, and the act of converting it into money which is easy for the obligor to consume, constitutes a fraudulent act against the obligee at all times unless there are special circumstances where the sale takes place at a reasonable price to appropriate for repayment to some creditors. Thus, the obligor's intent of prejudice is presumed, and the burden of proving that the purchaser has not acted in bad faith is the beneficiary himself (see, e.g., Supreme Court Decisions 6Da1535 Decided October 4, 1966; 2002Da62036 Decided March 25, 2003; 2009Da627525 Decided December 10, 2009).

2) In the instant case, as Nonparty 1 entered into the instant sales contract with the Defendant on the instant real property, which is the only property having actual value, and completed the registration of ownership transfer accordingly, resulting in shortage of joint security, barring any special circumstance, the instant sales contract constitutes a fraudulent act detrimental to general creditors including the Plaintiff, and the Defendant’s bad faith is presumed.

3) As to this, the Defendant asserts to the effect that “Non-Party 1 repaid the loan to Non-Party 1’s Korea Exchange Bank amounting to KRW 300,000,000,000 paid according to the instant sales contract, and thus, Non-Party 1’s selling act does not constitute a fraudulent act, and the Defendant did not know that Non-Party 1’s creditor would be prejudicial to.”

A) According to the records in Gap, Gap evidence No. 8, response of the first instance court's order to submit financial transaction information to Hana Bank Co., Ltd., the result of response to an order to submit financial transaction information and the whole purport of pleadings in this court, the real estate in this case was subject to the establishment of a collective security right of KRW 12682, Jun. 4, 2005; the debtor company, non-party company, maximum debt amount of KRW 300,000,000 as of March 17, 2008; the debtor company, non-party company, maximum debt amount of KRW 50,000,000 as of March 17, 208; however, the above two proposals were cancelled as of November 30, 2012; and the fact that the collective security right was cancelled as of KRW 15268,15269 as of November 30, 2012; the non-party company deposited in the account of the same non-party company 36.

B) However, the following facts and circumstances can be revealed according to the aforementioned evidence, the result of Nonparty 2’s appraisal of the market price of the first instance court’s appraisal, and the purport of the entire pleadings, i.e., the Defendant asserted that the sales price of the instant real estate was KRW 300,000,00 under the instant sales contract, despite the court’s name, there is no evidence to objectively determine the sales price or the amount of cash deposited into the account of Nonparty 1 is 201,00,000, and it is difficult to ascertain whether the instant sales contract was made at a reasonable price (On the other hand, the appraised value of the instant real estate as of June 18, 2016 was 315,69,000, and based on this, the Plaintiff’s presumption market price of the instant real estate at the time of the instant sales contract was 319,742,80,000, and there is no evidence to prove that there was no other evidence to prove that the Defendant had been the ownership transfer relation with Nonparty 1 prior to the instant sales contract.

(c) The method of revoking and restoring to original state;

1) Therefore, the instant sales contract constitutes a fraudulent act and ought to be revoked, and its restitution should be made.

2) As to the method of restitution, in principle, where a legal act on real estate constitutes a fraudulent act, the fraudulent act is revoked and the order to recover the real estate itself, such as cancellation of the registration of transfer of ownership. However, in a case where a fraudulent act is committed on real estate on which a mortgage is established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of a mortgage is cancelled due to repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself to the extent that it does not constitute a joint security of the general creditors, would result in a violation of fairness and fairness. Thus, an order to cancel a fraudulent act and order restoration of the real estate itself from the value of the real estate would result in restoration to the portion that was not the first general creditors’ joint security. Therefore, the said value can only be claimed for the cancellation of a fraudulent act and compensation for the value thereof at the time of the conclusion of fact

However, as seen earlier, the prior mortgage was set up by the Korea Exchange Bank on the instant real estate at the time of the conclusion of the instant sales contract, and the cancellation on November 30, 2012, both the date of the instant sales contract and the date of ownership transfer registration.

As to whether the cancellation of the above right to collateral security was made after the fraudulent act (the conclusion of the instant sales contract), the receipt number of the registration of the right to collateral security was No. 15268 and No. 15269. In light of the above receipt number, the receipt number of the registration of the right to collateral security is No. 15270. However, the possibility that the above registration of cancellation of the right to collateral security and the application of the ownership transfer registration of this case were received together after the fraudulent act (the conclusion of the instant sales contract) cannot be ruled out. However, it cannot be known that the cash deposit was paid as the purchase price under the instant sales contract because it is unclear whether the source of KRW 201,00,000, which was deposited in cash by the non-party 1 was unclear, and there is no evidence that the non-party 201,000,000 won was remitted and used for repayment of the obligation to collateral security. In light of the fact that the sales contract of this case was not submitted as evidence, the evidence submitted by the defendant alone is insufficient to conclude that

3) Therefore, restitution following the cancellation of the instant sales contract shall be made by the method of returning originals, and the Defendant is obliged to implement the procedure for the registration of cancellation of ownership transfer registration of this case which was completed with respect to the instant real estate by Nonparty 1.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted as it is reasonable. Since the judgment of the court of first instance is just, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Sung Ho-ho (Presiding Judge)