2012Da16599 Demurrer against distribution

2012Da16605 (Consolidated) Demurrer against distribution

1. A;

2. B

3. C.

D

Seoul High Court Decision 2011Na23011, 23028 (Consolidated) Decided January 20, 2012

January 28, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal regarding the period of exclusion from the exercise of the right of revocation, "the date when the creditor, who is the starting point of the exclusion period, becomes aware of the cause of revocation" means the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he/she would prejudice the creditor as a requirement for the exercise of the right of revocation. Thus, it is insufficient to say that the debtor merely knows that he/she conducted a fraudulent act with the knowledge that he/she conducted a disposal of the property, and that such disposal act constitutes an act detrimental to the creditor, which makes it impossible for the creditor to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security already occurred, and further, that the debtor had the intent of harming (see, e.g., Supreme Court Decision 2003Da19435, Jul.

The lower court determined that it was insufficient to recognize that at the time of the above request for auction or the distribution of distribution, the Plaintiffs, B, and C made a demand for distribution in the discretionary auction procedure regarding each of the instant real estate in accordance with the request for auction filed by the Sstern Agricultural Cooperatives on November 28, 2008. However, the lower court determined that the above Plaintiffs, at the time of the above request for auction or the distribution of distribution, knew that the above Plaintiffs, due to the lack of joint security for the general creditor against the obligor E, or the lack of the existing joint security in the state of shortage, became

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal doctrine

2. As to the ground of appeal on the determination of the secured amount of the instant 2-mortgage

The lower court determined that the Defendant’s actual claim amount against the Defendant E is merely KRW 1,538,658,790, and that the Defendant and E agreed to settle the claim amount in KRW 3.2 billion, but it is reasonable to view that the Defendant and E were subject to the establishment of the instant 2-mortgage, with a view to increasing the amount of distribution based on the right to collateral security, by preparing and receiving a receipt equivalent to KRW 3.2 billion between E and E in order to raise the amount of distribution based on the right to collateral security.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. As to the ground of appeal on the scope of exercise of obligee's right of revocation

A. In a case where the registration of provisional seizure is first made on real estate and the right to revoke the right to preferential payment is established, in a case where the right to collateral security has been established, the mortgagee of prior provisional seizure cannot assert preferential payment right against the creditor of prior provisional seizure at the distribution stage of the auction procedure. Therefore, the creditor of prior provisional seizure cannot be deemed to have suffered any disadvantage due to the debtor's act of establishing the right to revoke the right to revoke the right to revoke the right to revoke the right to revoke the mortgagee. However, in a case where the actual amount of credit of the creditor of provisional seizure exceeds the amount of credit of provisional seizure, the act of disposal by the debtor may be a fraudulent act that reduces the creditor's joint security as long as it does not have the effect on the excessive amount of credit, the creditor's act of disposal

B. The court below held that the part of the claims amounting to 2/3 of the claims based on the mediation statement dated November 16, 2007 (hereinafter "the instant mediation statement") filed by Plaintiff B, C, and T against Defendant E should be deemed as preserved claims of Plaintiff B, and C, and that the amount of claims based on the instant two-mortgage should be entirely revoked as fraudulent act and entirely deleted against the Defendant. However, the judgment of the court below is difficult to accept for the following reasons.

1) According to the reasoning of the judgment below and the records, ① Plaintiff B and C received the provisional seizure order of this case 80 million won on April 28, 2005 with respect to the land, etc. of this case with the provisional seizure claim amounting to 800 million won, and completed the provisional seizure registration on May 2, 2005. ② The Defendant completed the registration of the provisional seizure on July 11, 2007 with respect to each of the instant real estate, etc. of this case with the maximum debt amount of 4.5 billion won, and ③ The conciliation protocol of this case provides that “Defendant E shall pay the said money to Plaintiff B, C, and C by May 31, 2008, and if the said money is not paid by the next day, the debtor shall be paid the damages for delay by adding the rate of 20% per annum to the date of full repayment, and the Plaintiff B and C shall be present at the execution court of this case with the provisional seizure claim of this case as to the distribution claim of this case as to the Plaintiff C and the distribution claim of this case.

2) Examining these facts in light of the legal principles as seen earlier, the Defendant, the mortgagee of the instant 2-mortgage, cannot claim preferential payment right against the Plaintiff B and C, which is the senior provisional attachment obligee in the distribution relationship of the instant auction procedure, and thus, cannot exercise the right of revocation as the Plaintiff B and C, who is the right of revocation. However, with respect to the portion of the actual claim amount of Plaintiff B and C exceeds the amount of the said provisional attachment, the provisional attachment becomes effective, and thus, the right of revocation can only be exercised by making

Nevertheless, the lower court, without excluding the part on the effect of the above provisional seizure among the actual claims of Plaintiffs B and C based on the instant protocol of conciliation, acknowledged the part equivalent to 2/3 of the amount of claims pursuant to the instant protocol of conciliation as the preserved claim for the exercise of the obligee’s right of revocation by Plaintiff B and C, and subsequently revoked the entirety of the instant agreement and deleted the entire amount of the dividend amount based on the instant 2nd mortgage against the Defendant. In so doing, it erred by misapprehending the legal doctrine on the establishment of fraudulent act between senior provisional attachment obligee and the mortgagee

The ground of appeal pointing this out is justified.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Go Young-young

Justices Lee Dong-won