New Asia Trade Co., Ltd. (Law Firm Loex, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Kim & Lee, et al., Counsel for the defendant-appellant)

February 2, 2010

Seoul Central District Court Decision 2003Da447090 Delivered on June 29, 2005

Seoul High Court Decision 2005Na5857 Decided August 30, 2006

Supreme Court Decision 2006Da65903 Decided May 28, 2009

1. Revocation of a judgment of the first instance;

2. The contract between Nonparty 1 and the Defendant on the payment in kind signed on August 17, 200 with respect to 44,050 square meters of forests and 44,050 square meters of forests and 51,967 square meters of forests and 51,967 square meters of forests and 44,050 square meters of forests and 51,967 square meters of forests

3. The defendant will implement the procedure for cancelling the registration of cancellation of each transfer of ownership, which was completed on August 22, 200 by the receipt No. 48937, with respect to the real estate listed in the above 2. Paragraph 2. to Nonparty 1.

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

The same shall apply to the order.

1. Basic facts

A. Nonparty 1, as a general partner of the ship-related limited partnership (hereinafter “ship-related partnership”), was in office as a representative member of the ship-related limited partnership (hereinafter “ship-related partnership”). On August 18, 200, Nonparty 1 was in office as the general partner of the ship-related limited partnership.

B. As of August 17, 200, the Defendant, who was Nonparty 1 and his money, entered into a substitute contract with Nonparty 1, on August 17, 2000, to transfer the land of this case to the Defendant in lieu of the repayment of the loan debt amounting to KRW 140 million to Nonparty 1’s Defendant (hereinafter “instant substitute contract in lieu of the repayment of the loan debt amounting to KRW 140 million (hereinafter “instant substitute contract”), and completed the registration of ownership transfer under the name of the Defendant as of August 22, 2000 by the Daejeon District Court Branch of Daejeon District Court No. 48937, Aug. 22, 2000 (hereinafter “instant ownership transfer”).

C. During the period from Jan. 200 to Jun. 200, 12 copies of Promissory Notes in the amount of KRW 6,454,250,00 were issued and delivered to the Plaintiff. The Plaintiff offered payment proposal on each of the said bills at the due date, but all of them were refused to pay without transaction.

D. Nonparty 3, the representative director of the Plaintiff, was the above-mentioned creditor on August 21, 200 and was the representative of the partner company at the creditor conference around August 21, 200. On or around January 4, 2001, the Plaintiff filed a lawsuit for the claim for the payment of bills at the Seoul Central District Court 2001dan2028, and on May 15, 2001, the amount of 6,454,250,000 and 589,000 among them, from August 18, 200, from 50, from 00, from 00, to 00, from 00, 200, from 00, 200, from 00, 200, 100,000,000, 205, 208,000,000 won, respectively.

E. On Mar. 22, 2002, the Joseon General filed an application for commencement of composition as Suwon District Court No. 2002 1, May 2, 2002, and received the decision of commencement of composition on Jul. 29, 2002, and received the decision of authorization of composition on July 29, 2002 through the creditors meeting on July 15, 2002, and the plaintiff also reported the above claim as composition bond.

F. After that, the plaintiff filed an appeal with Seoul High Court Decision 2002Ra436, the appellate court revoked the first instance decision on December 20, 2002, and decided not to authorize composition based on the composition conditions approved at the meeting of creditors on July 15, 2000. Accordingly, the Supreme Court reversed the order of June 25, 2003 and remanded the reappeal to the Seoul High Court. The Seoul High Court (2003Ra405) which was remanded, dismissed the plaintiff's appeal on July 31, 2003, and the Supreme Court dismissed the plaintiff's reappeal (2003Ma1434) against the above decision on March 16, 2004, which became final and conclusive.

G. According to the composition approval decision, the composition claim against a person other than a financial institution is 35% sugar the principal and repaid in equal installments from 2006 to 2011, and the interest is exempted.

H. The Joseon District Court decided to commence rehabilitation proceedings on August 25, 2009 on the ground that a composition creditor was unable to repay his/her obligations due to the above composition conditions in 2006 and 2007 due to the aggravation of financial standing, but the amount of the debt in 2008 was not repaid due to the aggravation of financial standing. Accordingly, the Seoul Central District Court 2009Kahap116 filed an application for commencement of rehabilitation proceedings under the Debtor Rehabilitation and Bankruptcy Act with the Seoul Central District Court 2009Kahap116, which did not significantly impede the continuation of the business, and the occurrence of the fact that caused bankruptcy was occurred.

I. After that, on October 7, 2009, the Suwon District Court, upon the application of composition creditors such as the plaintiff, decided to revoke the composition on the ground that it neglected to fulfill the conditions of composition without justifiable grounds and did not have any intent or ability to fulfill the conditions of composition in the future.

[Based on Recognition] A without dispute, Gap evidence Nos. 1, 2, 4, Gap evidence Nos. 5 and 15-1, 2, Gap evidence Nos. 28, 29, Eul evidence Nos. 2-1 through 6, Eul evidence Nos. 3-1, 2, 9, Eul evidence Nos. 17-1 through 6, and the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of defendant's defense

The defendant filed the lawsuit of this case on December 17, 200, after the lapse of one year from the date of the expiration of 2000 to the beginning of 2001 when the plaintiff filed a petition with an investigation agency after the default of Japanese Maritime Affairs, or around the beginning of 2001 when the non-party 4 received a decision of provisional disposition on the prohibition of disposal of each real estate of this case on February 2, 2002 or at the latest on July 15, 2002 when the meeting of creditors was held at the meeting of creditors under the composition procedure for Japanese Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime

B. On the other hand, the "date when the creditor, which is the starting point of the exclusion period in the exercise of the creditor's right of revocation, becomes aware of the cause of revocation" means the date when the creditor becomes aware of the requirement of the creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor had committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is insufficient to say that the debtor merely knew of the fact that he conducted a disposal of the property, and further, it is necessary to know the existence of a specific fraudulent act and to know the fact that the debtor had an intent to harm the debtor (see Supreme Court Decisions 9Da53704, Feb. 25, 200; 200Da15265, Jun. 13, 200).

(c) Fact of recognition;

(1) The Plaintiff’s representative director Nonparty 3 urged the investigation of Nonparty 1 after the bankruptcy of the Korea Shipbuilding, and submitted to the Seoul District Prosecutors’ Office a written self-written statement dated 31, 2000. The above written statement contains the content that Nonparty 1 and other persons deducted a lot of property for the purpose of evading the performance of obligation.

(2) On November 11, 200, Nonparty 3 submitted to the Seoul District Public Prosecutor's Office a petition stating that Nonparty 1 intentionally defaulted the company and deducted the company property from the denial and self-refluence in the capacity of representative of the claim group of Japanese affairs. The petition was accompanied by the list signed by other creditors, including Nonparty 4, etc.

(3) The non-party 4 filed a lawsuit against the defendant on February 1, 200 on the provisional disposition against the non-party 1,938,250,00 won of the Promissory Notes (the Suwon District Court Order No. 2001j. 1920), the Promissory Notes No. 2,408,418,000 won of the Promissory Notes No. 651,328,205 won of the price of goods (the payment order No. 2002. 1173 of the same court) against the non-party 4, the non-party 4 filed a lawsuit against the defendant on August 1, 2003 on the cancellation of the ownership transfer registration due to the fraudulent act under the Seoul Central District Court No. 2002Kadan37414 of the Seoul Central District Court Decision No. 2002Kadan37414, the provisional disposition against the defendant on August 1, 2003, asserting that the period of the ownership transfer registration was revoked 3.

(4) Meanwhile, as seen earlier, the Plaintiff filed an application for the commencement of the composition with the Plaintiff’s claim for the above promissory note as the composition claim. Nonparty 3 and Nonparty 4 participated in the meeting of creditors of the composition held on July 15, 2002, and Nonparty 1 disposed of the personal property at that meeting to a certain extent.

(5) The Central Branch Co., Ltd., the creditor of the ship of this case, filed a complaint against the defendant and the non-party 1 with the Seoul District Prosecutors' Office for the evasion of compulsory execution on the ground that the completion of the registration of transfer of ownership on the forest land (number 1 omitted) among the real estate of this case constitutes evasion of compulsory execution. However, the defendant and the non-party 1 were suspected of having been subject to a disposition on March 21, 2001. The non-party 4 also filed a complaint against the defendant for the completion of the registration of transfer of ownership on each of the real estate of this case on December 24, 2002, while the defendant and the non-party 1 filed a complaint against the defendant on July 25, 2003.

(6) On July 18, 2003, immediately before the filing of the lawsuit seeking revocation of the above fraudulent act, Nonparty 4 notified the Plaintiff that Nonparty 1 discovered each of the instant real estate which was hidden by Nonparty 1. Accordingly, on September 4, 2003, the Plaintiff also filed the lawsuit of this case on December 17, 2003, following the Seoul District Court 2003Kadan179605 decided that the right to claim revocation of the ownership transfer registration of each of the instant real estate was the right to be preserved.

[Basis] Evidence Nos. 1 through 4, evidence Nos. 5, 15, 22-1 through 6, evidence Nos. 2-1 through 3-1, 2, Eul evidence Nos. 5-1, 2, 3, 8-1, 2, 8-2, 9, 17-1 through 6 of evidence Nos. 17, and the purport of the whole pleadings

D. According to the above facts of recognition, Nonparty 3, the representative director of the plaintiff, was suspected of deducting the property of Nonparty 1 from October 200 to avoid liability due to the default of shipbuilding. However, there is no evidence to prove that Nonparty 3 was aware of the details of the property of Nonparty 1's disposal or the details of the case filed by Nonparty 4 with the central institution and Nonparty 4. Thus, it is insufficient to recognize that the above facts of recognition or the aforementioned evidence and evidence No. 6 were insufficient to recognize that the plaintiff was aware of the intention to cause harm to the debtor prior to the filing of the lawsuit of this case. No other evidence to prove otherwise. Rather, it is reasonable to deem that the plaintiff knew of the instant payment contract of this case around July 18, 2003, which was notified by Nonparty 4 that Nonparty 1 had discovered each of the real property of this case.

Therefore, since the lawsuit of this case was filed within one year from the date on which the plaintiff became aware of the fraudulent act, the defendant's principal defense is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

(1) Article 212(1) of the Commercial Act provides that "if a company's assets are unable to fully repay its obligations with its assets, each member of the partnership company shall be jointly and severally liable to repay its obligations," and Article 212(2) provides that "if a compulsory execution against the company's assets is not effective, the same shall apply to the preceding paragraph." Since an unlimited partnership is a de facto common enterprise and the company's obligations are substantially common obligations of each member, the liability of the members of the unlimited partnership company is naturally arising under the provisions of law if the company bears its obligations, and it does not occur only when "if the company's assets cannot be fully paid its obligations with the company's assets," or "if compulsory execution against the company's assets are not effective, it is reasonable to deem that the company creditor has determined the requirements under which the company's members may claim supplementary performance of obligations among the members of the unlimited partnership by proving that it falls under such cases, the provisions on unlimited partnership companies shall apply mutatis mutandis (Article 269 of the Commercial Act).

(2) In the case of this case, according to the above facts and the above legal principles, the court below issued 12 promissory notes equivalent to the total face value of 6,454,250,000 won to the plaintiff from January 200 to June 200, and the plaintiff also has the same claim as the claim against the non-party 1, who is the general partner of the ship without any contractual authority. Thus, the plaintiff's claim against the non-party 1 was established prior to the conclusion of the payment contract in this case.

(3) However, as the ruling of approval for composition against the non-party 1 became final and conclusive, Article 61 of the former Composition Act (amended by Act No. 7428 of Mar. 31, 2005) and Article 299 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005), the principal amount has been reduced by 35%, and the due date has been deferred, and the interest has been changed to the bonds exempted. However, the decision of approval for composition against the non-party 1 was invalidated due to the cancellation of composition, and the plaintiff has been restored to the concession right of the non-party 1 under the conditions of composition, and the plaintiff ultimately, the plaintiff has the remainder of the claim against the non-party 1 ? 605 won 】 2965 won 】 4065 won 】 29650 won 】 406 won 】 50650 won 】 506 won 】 294 won 】

B. Whether the fraudulent act was established

(1) Consumed legal principles

(A) Where the obligor’s property is insufficient to fully repay the obligor’s obligation, and where the obligor provided the obligor’s property to a certain obligee as payment in kind, barring any special circumstance, it would directly compromise the interests of other obligees and thereby constitute a fraudulent act in relation to other obligees. The same applies to cases where the obligor’s property provided as payment in kind is not the obligor’s exclusive property, or falls short of the obligor’s value of the claim (see Supreme Court Decision 2007Da18218, Jul. 12,

(B) In case where an asset on which a mortgage is established is transferred by a fraudulent act, the fraudulent act is established within the extent of the value of the asset, that is, the balance obtained by deducting the secured claim amount from the market value, and if the secured claim amount exceeds the value of the asset, the transfer of the asset concerned cannot be deemed a fraudulent act (see Supreme Court Decision 2006Da3357, Feb. 14, 2008, etc.).

(2) Facts of recognition

(A) The aggregate of the officially assessed individual land prices of each of the instant real estate in 2000 won is 182,462,690 won. Of each of the instant real estate, the registration of the establishment of a collateral security for the forest land in the Dong Council (number 1 omitted) was completed on October 1, 1998 on the ground of a mortgage contract dated September 30, 1998, with respect to the maximum debt amount of KRW 30 million, the debtor, the mortgagee 1, the mortgagee 2, and the forest land in the Dong Council (number 2 omitted) on September 9, 1998 on the ground of a mortgage contract concluded on September 7, 1998, with respect to the forest land in the Dong Council (number 2 omitted).

(B) At the time of the instant payment in substitutes, Nonparty 1 owned 5,09,59,40 won in Seocho-gu Seoul Special Metropolitan City (number 3 omitted), 5,000 won in total, (number 4 omitted), 1,486,985,00 won in total, (number 7 omitted), 568,580 won in total, (number 8 omitted), 20,000 won in total, (number 9 omitted), 20,000 won in Seo-gu, Seoul Special Metropolitan City (number 10 omitted), 20,000 won in total, 10,000 won in total (number 10 omitted), 2,941,389,640 won in number , 28,000 won in number , 10,000 won in total (number 11 omitted), 30,000 won in number 2,000 won in number 2,131,714

(C) At the time of the instant accord and satisfaction contract, Nonparty 1 bears the obligation to return lease deposit amounting to KRW 1,420,000,000 in total for the lessees of the building on the land at Seocho-dong, Seocho-gu, Seoul, and KRW 72,00,000 in total for the lessees of the building on the land at the time of the instant payment and satisfaction contract, and KRW 1,492,00,000 in total for the lessee of the building on the land at the time of the Seoul Jung-dong, Seoul.

(라) 위 화의사건의 정리위원이 수원지방법원에 제출한 2002. 7. 2.자 조선무약에 대한 조사보고서에 의하면, 조선무약의 2000년도 대차대조표상 2000. 12. 31. 현재 자산 총계는 72,829,613,000원, 부채 총계는 87,934,527,000원으로서 부채가 15,104,914,000원 정도 초과되었고, 2002. 3. 31. 현재 조선무약의 대차대조표에 계상된 자산을 기준으로 회수불능채권, 부실자산 등을 기업회계기준에 따라 제거하고 유형자산 중 경락결정된 자산을 겅락대금으로 평가한 후의 조선무약의 자산총액은 54,783,269,000원, 부채총액은 109,476,406,000원으로서 부채가 54,693,137,000원 정도 초과된 상태로 조사되었다.

(E) According to the audit and inspection report on the financial statements for the 35th period (from January 1, 200 to August 31, 200), the total assets and total assets amounting to 62,45,805,147 won as of August 31, 200, the total assets amounting to 87,987,09,841 won as of August 25, 200, and the total assets amounting to 25,541,294,694 won as of August 31, 200.

[Reasons for Recognition] Evidence No. 5-1, 2, Evidence No. 16-1, 2, Evidence No. 6-2, Evidence No. 14-1, 2, Evidence No. 15-2 through 19, Evidence No. 15-2, Evidence No. 25, and the purport of the whole pleadings

(3) Whether there is a secured obligation for the registration of establishment of a neighboring mortgage in the name of Nonparty 2

(A) At the time of the accord and satisfaction contract of this case, the sum of the officially assessed values of each real estate of this case is KRW 182,462,690, and the registration of establishment of a mortgage was completed over the maximum debt amount of KRW 300,000 and KRW 100,000,000 on each real estate of this case. Accordingly, the defendant asserts that the payment contract of this case does not constitute a fraudulent act, since there is no value of the property of each real estate when deducting the secured debt amount of each real estate of this case from the value

(B) Comprehensively taking account of the overall purport of Nonparty 1’s statement No. 9 and No. 17-1 and Nonparty 2’s share in the mortgage No. 15 and No. 17-2, Nonparty 1 and Nonparty 2 filed a complaint with the Defendant for the crime of evading compulsory execution. Nonparty 2 (Defendant 194) as witness for the management of Nonparty 5’s land and No. 9-2, 000-7, 00-7, 000-7, 000-7, 000-7, 000-7, 000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000-7,000.

(C) However, as above, Nonparty 2 and Nonparty 1’s statement that set up a right to collateral security against each of the instant real estate with remuneration for Nonparty 2’s act of land management as collateral is not only paid farmland rent each year after Nonparty 2 leased farmland owned by Nonparty 1, but also deducted the oxygen management expenses, etc. while paying rent. Nonparty 2 and Nonparty 5 do not have any objective evidence to acknowledge that there was a specific agreement on the amount of remuneration for Nonparty 2’s act of land management. Even according to Nonparty 2’s statement itself, Nonparty 1 cannot be paid remuneration, and instead, the right to collateral security is set up on the land owned by Nonparty 1. In light of the fact that Nonparty 1, who owned a considerable property at the time when 10 years elapsed since Nonparty 5’s death, did not appear to have done the above act of land management without specifying the amount of remuneration for the land management (or KRW 130 million, 500,000,000,000,000 won, each of the above real estate was set up at KRW 1.5 billion.

(D) Therefore, the defendant's above assertion cannot be accepted.

(4) Whether the debt exceeds the debt of Nonparty 1

(A) The facts acknowledged earlier and the legal principles of 3.A. (1) are as follows: (a) Nonparty 1, as a general partner of the ship affairs, bears the same obligation as the ship affairs to the creditors of the ship affairs as the general partner of the ship affairs, who is a limited partnership company; (b) as at the time of the payment contract of this case, Nonparty 1’s debt amounting to KRW 89,479,09,841 (=37,987,09,841 + the obligation amounting to KRW 1,492,00,000) at the time of the payment contract of this case in substitution and payment of this case; and (c) active property amounting to KRW 10,680,107,730 [3.(a)(b) 182,462,690 + (b) 10,497,645,040]; and (b) Nonparty 1 was in excess of the debt status.

(B) As to this, the Defendant asserted that the instant payment contract for the payment in lieu of the real estate owned by Nonparty 1 did not constitute a fraudulent act, because, at the time of the instant payment in lieu of the real estate, Nonparty 1, the primary debtor, and the general partner, Nonparty 1, the general partner, merely held the secondary and supplementary liability. However, as at the time of the instant payment in lieu of the real estate, Nonparty 1, who transferred the ownership of each real estate to the Defendant, did not constitute a fraudulent

However, according to the legal principles as seen earlier 3.A. (1), liability of the general partner with unlimited liability in the limited partnership company to the creditors of the company is naturally arising from the statutory provisions if the company bears the liability. It does not occur when the company's assets cannot be fully paid off the company's assets or when compulsory execution against the company's assets is not effective. It is merely a requirement for the company's creditors to prove that the company's assets fall under such a case and to claim supplementary performance of liability to the general partner in the limited partnership company. Thus, it is not a secondary and supplementary liability for the debt of the non-party 1. Thus, in determining whether the non-party 1 was in excess of the liability at the time of the disposal of the company, or whether the non-party 1's disposal of the company's assets constitutes fraudulent act, the non-party 1's debt of the non-party 1 was included in the non-party 4's debt at the time of the disposal of the company's assets, and the non-party 1's debt or active debt amount can not be accepted.

(5) Establishment of fraudulent act

Since Nonparty 1 offered each of the instant real estate owned by Nonparty 1 to the Defendant, one of the creditors in excess of the debt, the instant payment contract constitutes fraudulent act in relation to other creditors, including the Plaintiff. Nonparty 1 concluded the instant payment contract prior to the date when the payment was defaulted, and completed the registration of ownership transfer with respect to each of the instant real estate to the Defendant four days after the date when the payment was defaulted. In light of Nonparty 1 and the Defendant’s personal relationship, Nonparty 1’s intention of death can be ratified and the Defendant’s bad faith is presumed to be the beneficiary.

(c) Revocation of fraudulent act and reinstatement;

Therefore, the payment contract of this case between the non-party 1 and the defendant should be revoked as a fraudulent act, and the defendant shall be obliged to implement the procedure for cancellation registration of each ownership transfer registration of this case which was completed with respect to each real estate of this case by restitution to the non-party 1.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion. Thus, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the defendant is ordered to cancel the payment contract of this case and to order the non-party 1 to implement the procedure for registration cancellation of each transfer of ownership registration of this case as to each of the

Judges Landscaping Co., Ltd. (Presiding Judge)