New Bank Co., Ltd. (Law Firm Won, Attorneys Won-Gyeong et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Kim Sung-sung, Counsel for the defendant-appellant)

August 18, 2011

Seoul Central District Court Decision 2010Kahap23512 Decided December 29, 2010

1. Revocation of a judgment of the first instance;

2. A. A. On September 24, 2008, the agreement to establish a right to collateral security concluded on September 24, 2008 between the co-defendant, Co-defendant, Ltd. and Defendant 1 is revoked.

B. Defendant 2 performed the registration procedure for cancellation of the registration of the establishment of the right to collateral security, which was completed under No. 103711 on September 25, 2008 with respect to each of the above real estate to the above LAW C Co., Ltd.

3. The total costs of the lawsuit shall be borne by the Defendants.

The judgment of the first instance shall be revoked, and the judgment as ordered.

1. Quotation of judgment of the first instance;

This Court's reasoning is as follows, 2.2.(b)(3) of the first instance court's decision, and 4) of the first instance court's decision in addition to adding the following contents to the following. Thus, this Court's reasoning is as stated in the first instance court's decision in accordance with Article 420 of the Civil Procedure Act.

“3) Determination as to the Defendants’ good faith defense

A) On December 5, 2007, when Defendant 1 lent KRW 300 million to the co-defendants of the first instance trial through Nonparty 2, Defendant 1, through the non-party 2, he was unable to get the payment of KRW 300 million, he first received the registration of establishment of the right to collateral in accordance with the non-party 2, etc.’s proposal that he would make the registration of establishment of the right to collateral security for the collateral security. The above loan was paid KRW 140 million from the non-party 2 upon the request that he would transfer the above right to collateral security to a third party, and then the above loan was paid KRW 140 million from the non-party 2. The defendants did not know at all. Accordingly, the defendants did not know that the co-defendants of the first instance trial, the owner of each real estate listed in the attached list at that time (hereinafter “the real estate of this case”), and due to the excess of debt, the creditors' joint collateral against L&C including the plaintiff, was insufficient.

B) Relevant legal principles

In a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proof against himself/herself, and in recognizing that the beneficiary was bona fide at the time of the fraudulent act, there must be objective and acceptable evidence, etc. In addition, only the unilateral statement of the debtor or a statement that is merely a third party's position, etc., that the beneficiary was bona fide at the time of the fraudulent act should not be readily concluded (see Supreme Court Decisions 2006Da5710, Apr. 14, 2006; 2009Da60466, Jul. 22, 2010, etc.).

C) the facts of recognition

(1) On December 5, 2007, the defendant 1, the non-party 3, and the non-party 4 lent a total of KRW 300 million to the development of the database industry with the introduction of the non-party 2, who was the co-defendant of the first instance court on December 5, 2007. Accordingly, on December 5, 2007, the co-defendant 4 of the first instance court, the actual operator of the development of the marina industry, was the co-defendant 4 of the first instance court, a notary public on December 5, 2007, the document No. 1253 of the 2007 Office of the Daegu General Law Office of Law, which was implemented in Ulsan-si, Ulsan-si, where the development of the marina industry was conducted, transferred a notarial apartment with the market price of KRW 520,000,000,000 and KRW 520,000,000,08.

(2) Defendant 1, Nonparty 3, and Nonparty 4 lent money to the Co-Defendant 4 of the first instance court at the time of lending the said money to Defendant 4 at the time of the first instance court’s co-Defendant 3’s co-defendant 4 at the time of the lending of the said money to Nonparty 2.

(3) Prior to the conclusion of the instant contract to establish the mortgage, the instant real estate had been registered in the name of the maximum debt amount of KRW 715 million and Nonparty 1 (the Nonparty of the judgment of the Supreme Court). However, the registration was cancelled on September 22, 2008, which was three days prior to the registration of the instant establishment of the mortgage.

(4) On November 3, 2008, there has been a supplementary registration with respect to the instant right to collateral security in question with Defendant 2’s previous registration. On November 4, 2008, the first instance court co-defendant 4, who was under title trust in the name of Nonparty 5, on the registry, on November 4, 2008, paid the amount of KRW 150 million with respect to the registration for establishment of the right to collateral security in question with Nonparty 6, the amount of KRW 47279, and the amount of KRW 40 million with respect to the registration for establishment of the right to collateral security in question with respect to Nonparty 2, who was under title trust in the name of Nonparty 4, on the registry, on November 4, 2008, the amount of KRW 50 million with respect to the co-defendant 4,000,000,0000,000 won with respect to the non-party 5,000,000 won.

[Ground of Recognition] A-1 through 4, A-3, B-1, B-1, B-1, and B-10, part of Non-Party 2’s testimony by Non-Party 2 of the first instance court, Daegu Livestock Farming Branch of the first instance court, and the result of response to each order to submit financial transaction data to Daegu Bank, the purport of the entire pleadings as a whole.

D) Determination

However, barring any special circumstance, it becomes a fraudulent act to provide a debtor with his own property as security to a specific creditor (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). The above evidence and the statements in Eul 2-1, and Eul 4, and the statements in the court of first instance as of Sept. 13, 2010 regarding the order to submit financial transaction information to Daegu Branch of the National Bank of Korea at the court of first instance, and the following circumstances acknowledged by the response to the submission order to submit financial transaction information to the National Bank of Korea, the National Bank of Korea, the National Bank of Korea, the Korea Federation of Korea, the Dong-dong Saemaul Bank, the Korea Federation of Banks, the Korea Federation of Banks, and the Daegu Bank of Korea, the time when the establishment registration of the mortgage of this case was completed, and the location of Nonparty 2 and the relationship between the Defendants and the witness of the court of first instance, there is no evidence to acknowledge that the Defendants was a fraudulent act as a beneficiary or a subsequent purchaser.

(1) Defendant 1 is between Nonparty 2 and his ship and his ship, for 30 years, and Defendant 2 is a person who has made money transactions with Nonparty 2 on a multiple occasions.

(2) The time when the establishment of a right to collateral security has been registered under Defendant 1’s name on September 25, 2008 at the expiration of at least ten (10) months from December 5, 2007, the loan date of KRW 300 million. The right after September 22, 2008, LAWC, the owner of the instant real estate, started arrears against the loan to the Plaintiff bank, etc.

(3) On November 3, 2008, the day on which the additional registration on the transfer of the instant right to collateral security has been completed under Defendant 2’s name, and the Plaintiff completed a provisional attachment registration of KRW 500 million on the instant real estate after October 17, 2008.

(4) Although Liber Industrial Development failed to repay the above loan amount of KRW 300 million until August 5, 2008, it did not transfer the above loan amount in lieu of the above loan amount. Defendant 1 et al. had expressed the attitude that Defendant 3 co-defendant 3 of the first instance court and co-defendant 4 of the first instance court and Nonparty 2, the actual owner, urged the repayment of the above loan to the representative director of Liber Industrial Development. The co-defendant 4 of the first instance court did not make a criminal complaint even if they want to file a criminal complaint. In addition, on September 25, 2008, Co-Defendant 4 of the first instance court made a registration of establishment of the right to collateral security as above with respect to the above loan, and completed the registration of establishment of the right to collateral security on the instant real estate owned by Liber Industrial Technology, the actual representative of which was the owner.

(5) Of Defendant 2’s KRW 450 million issued to Nonparty 2, there was no amount of money from LAWC, etc., the person establishing the instant right to collateral security, as the owner of the instant real estate. This seems to have been used as the business fund for the comprehensive distribution of LAW, the lender of LAW, and (e) the distributor of LAW, established by Nonparty 2. In short, Defendant 2 was not the creditor of LAWC, but the creditor of Nonparty 2, who was not the creditor of LAWC, and completed the additional registration as to the registration for the establishment of the instant right to collateral security.

4) Sub-determination

Therefore, the instant mortgage agreement between LAC and Defendant 1 on the instant real estate should be revoked as a fraudulent act. Defendant 2, the subsequent purchaser of the instant real estate, whose presumption of bad faith is maintained, bears the duty to implement the registration procedure for cancellation of the registration of the establishment of a collateral security, which was completed as of September 25, 2008 by the Seoggu District Court Branch of the Daegu District Court on the instant real estate, and as of September 25, 2008.

2. Conclusion

Therefore, the plaintiff's claim against the defendants should be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and it is so decided as per Disposition by ordering the cancellation of the contract of this case and the cancellation of the registration of the establishment of

[Attachment]

Judge Lee Gyeong-sck (Presiding Judge)