In a case where the establishment of a senior security right is recognized as a separate lawsuit or a fraudulent act in the same lawsuit, in determining whether the establishment of a subordinate security right constitutes a fraudulent act, whether the amount of a senior security right secured should be included in the secured debt amount of the security right established on the relevant real estate (negative)

If a security right has been established on a real estate owned by an obligor, only the remaining part after the amount of the secured claim is the property provided by general creditors as joint collateral, and if the amount of the secured claim exceeds the value of the real estate, the transfer of such real estate or the creation of a new security right thereto shall not be deemed a fraudulent act. However, prior to a request for revocation of a new security right, prior to a request for revocation of a fraudulent act seeking cancellation of a new security right, where the act of creation of a prior security right is revoked as it is deemed fraudulent act and registration based thereon has been cancelled, or where the creditor is deemed to have committed a fraudulent act, the act of creation of a prior security right shall not include the amount of the secured claim of the prior security right in determining whether the act of creation of a new security right constitutes a fraudulent act.

Article 406(1) of the Civil Act

Korea Credit Guarantee Fund (Law Firm Lee & Lee, Attorneys Cho Jae-ho et al., Counsel for the defendant-appellant)

Defendant

Seoul High Court Decision 2006Na28227 decided Feb. 8, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The court below did not recognize the defendant's assertion that Nonparty 1 entered into the mortgage contract of this case with the defendant in order for the above company to have the ability to repay debts by continuing the business of El business ELS by financing new funds, and did not err by violating the rules of evidence or misunderstanding the legal principles, etc., and the fact-finding of the court below is just without claiming the specific contents of the violation of the rules of evidence, and it does not constitute a legitimate ground of appeal.

2. Regarding ground of appeal No. 2

If a security right has been established on a real estate owned by an obligor, only the remaining part after the amount of the secured claim is the property provided by general creditors as joint collateral, and if the amount of the secured claim exceeds the value of the real estate, the transfer of such real estate or the creation of a new security right thereto shall not be deemed a fraudulent act (see Supreme Court Decision 97Da10864, Sept. 9, 197, etc.). However, prior to a request for revocation of a fraudulent act seeking the cancellation of a newly established security right, prior to such a request for revocation of a fraudulent act, prior to the revocation of a fraudulent act, prior to the revocation of a claim for cancellation of a newly established security right, the creation of a senior security right shall not be deemed a fraudulent act if the act of creation of a senior security right is deemed to be a fraudulent act, or the creditor is deemed to be a fraudulent act, in determining whether the act of creation of a senior security right constitutes a fraudulent act.

In the same purport, after recognizing the facts as stated in its holding, the court below determined that the second-class mortgage contract between Nonparty 1 and Nonparty 2 of this case was revoked as a fraudulent act and its registration was cancelled, and thus, the amount of the secured debt of the second-class mortgage of this case cannot be included in the secured debt of the security right established on the apartment of this case. In so doing, the court below did not err by misapprehending the legal principles on the establishment of fraudulent act, which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)