[1] Whether the revocation of a fraudulent act may be asserted as an attack and defense method in a lawsuit (negative)

[2] Status of the mortgagee of a movable property to the third party

[3] Where the contents of a contract for the transfer of security alone are not clear to the effect of the transfer of security, the criteria for determining whether to specify the object and the scope of the object

[1] Where an obligor performs a legal act aimed at a property right with the knowledge that he/she would prejudice the obligee, the obligee may file a lawsuit against the court for revocation of the fraudulent act, but may not claim it as a means of attack and defense in the lawsuit.

[2] Where a security contract for a movable property is concluded and a mortgagee has received delivery by means of possession and alteration, even before the liquidation procedure is completed, the mortgagee is not entitled to use and benefit from the collateral, but may exercise his/her right by asserting that he/she is the owner of the collateral in a relationship with a third party.

[3] Where the contents of a contract for security by means of transfer alone are not clear to the effect of the transfer, it shall be determined in detail by taking into account all the various circumstances, such as whether the transfer by means of security affects the effect of the transfer by taking into account the specific contents of the contract on the type, place, quantity, etc. of the object, the intent of the party to the contract, the degree of organic combination

[1] Article 406 of the Civil Act / [2] Article 372 of the Civil Act / [3] Article 372 of the Civil Act / [3] Article 372 of the Civil Act

[1] Supreme Court Decision 92Da11008 delivered on January 26, 1993 (Gong1993Sang, 852), Supreme Court Decision 95Da8393 delivered on July 25, 1995 (Gong1995Ha, 2948), Supreme Court Decision 95Da4859, 48605 delivered on March 13, 1998 (Gong1998Sang, 101) / [2] Supreme Court Decision 93Da4739 delivered on August 26, 1994 (Gong194Ha, 2514), Supreme Court Decision 98Da47283 delivered on September 7, 199 (Gong1999Ha, 2069Ha, 2099Ha, 309)

Plaintiff (Attorney Song-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14414 delivered on August 1, 200

April 6, 2006

1. The Defendant, based on the executory ruling of the corporeal movables provisional seizure case in the Daegu District Court 2004Kadan1265 against No. Nano Co., Ltd., the execution of provisional seizure made on January 24, 2005, 4. 5. 5.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 60% is borne by the Plaintiff, and 40% is borne by the Defendant, respectively.

On January 24, 2005, the Defendant, based on the executory exemplification of the decision on the provisional seizure of corporeal movables by the Daegu District Court of the Daegu District Court of Neno Co., Ltd. 2004Kadan1265, refused execution of provisional seizure as to each movable listed in the separate sheet.

1. Basic facts

A. The Plaintiff operated (trade name omitted) gas stations in the border (detailed address omitted) and supplied oil to Nonparty Nano Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”). However, the Plaintiff could not be reimbursed an amount equivalent to KRW 281,014,000 out of the amount of oil paid. On July 29, 2004, the Plaintiff entered into a security transfer agreement with the Nonindicted Co., Ltd., with the content that “Yansan-si, Suwon-si, the obligation confirmation and the letter of performance of obligation” was delivered by the Nonparty Co., Ltd., and that “Yan-si, Seoyang-gu, Young-gu, Busan, about KRW 2.50,00,00,00 as collateral,” and that “Yan-si, the collateral limit was KRW 500,00,00,00 as collateral, and the settlement period was August 31, 2004.

B. Meanwhile, the defendant applied for provisional seizure of corporeal movables by the Daegu District Court 2004Kadan1265 with the claim amount of KRW 200,000,000 against the non-party company as the claim amount, and received a decision of provisional seizure of corporeal movables owned by the non-party company from the above court. The execution officer entrusted by the defendant with the execution of provisional seizure was executed on January 24, 2005 as to each of the movables listed in the separate sheet owned by the non-party company.

[Grounds for recognition] The fact that there is no dispute, Gap evidence 1 through 3, Gap evidence 5, the purport of the whole pleadings

2. The parties' assertion

The plaintiff, although each movable property listed in the separate sheet is owned by the plaintiff, the defendant is entitled to the exclusion of compulsory execution on the ground that the defendant unfairly executed provisional seizure on the above movable property.

On the other hand, the defendant asserts that, while the value of each movable listed in the separate sheet is about KRW 1,900,000,000, the plaintiff's claim against the non-party company is merely about KRW 281,014,00,00, it constitutes a fraudulent act since the non-party company, which was in excess of the debt, has established a security right on the above movable, which is the only property for the plaintiff, a specific creditor, and the plaintiff is not entitled to claim ownership on the above movable as a mortgagee, but only has the right of realization through the exercise of a security right, the contract cannot seek the exclusion of provisional seizure execution, and the contract itself is null and void because the object of security is not specified, and even if not, the identity of the aggregate transferred for security by the plaintiff and the aggregate of this case executed by the defendant by the non-party company cannot be recognized. Thus, the effect of the security contract does not extend to the aggregate of this case.

3. Judgment by issue

(a) Whether the transfer is false or fraudulent;

First, we cannot accept this part of the defendant's assertion that the non-party company's transfer of aggregate to the plaintiff is false, since there is no evidence to acknowledge it.

Next, in the event that the above transfer contract between the non-party company and the plaintiff is a fraudulent act, and the debtor performs a legal act for the purpose of property right with the knowledge that it would prejudice the creditor, the creditor can file a lawsuit against the court for the revocation of the fraudulent act, and it cannot be asserted as a means of attack and defense in the lawsuit. Thus, this part of the defendant's assertion

(b) Status of the mortgagee;

If a security right holder enters into a contract for transfer of security for movable property and takes over it by the method of possession revision, even before the liquidation procedure is completed, the right to use and benefit from the collateral is not available, but in relation to a third party, the right can be exercised (see Supreme Court Decision 93Da44739 delivered on August 26, 1994, etc.). Thus, the defendant's assertion that it is difficult to seek exclusion from execution of provisional seizure on a different premise is also acceptable.

C. The validity of the transfer security of this case and the scope of the object to be effective

(3) In light of the above legal principles as to the non-party 4's disposal of aggregate transferred for security, the non-party 5's disposal of aggregate transferred for security is merely 0's disposal of aggregate transferred for security at 00's 7's 0's 0's 0's 0'' 7' 0' 0' 'No. 7' 'No. 200' 'No. 4' 'No. 0' 'No. 7' 'No. 0' 'No. 5' 'No. 0' 'No. 0' 'No. 1' 'No. 7' 'No. 1' 'No. 5' 'No. 1' 'No. 8' 'No. - No. 1' 'No. 1' 'No. 5' 'No. 0' 'No. 1' 'No. 7' 'No. 1' 'No. 1'. '. '2'.

4. Conclusion

Therefore, in relation to the third party as a mortgagee of movable property on the attached list 4. and 5., the plaintiff can claim that he is the owner and exercise his right. Thus, the plaintiff can seek the exclusion of the execution of the provisional seizure as the owner of the above movable property.

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] : omitted from a list of movables

Judges Kim Hong-do (Presiding Judge) Kim Yang-hun et al.