Seoul Guarantee Insurance Co., Ltd. (Attorney Lee Chang-won, Counsel for defendant-appellee)

Defendant (Law Firm Pool, Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

December 17, 2009

Daegu District Court Decision 2007Kadan8651 Decided June 4, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The contract to establish a mortgage concluded on August 1, 2006 with respect to the real estate listed in the separate sheet (hereinafter “instant real estate”) between the defendant and the non-party 1 (resident registration number omitted, Kimcheon-si number omitted) shall be revoked. With respect to the compulsory auction of real estate (hereinafter “instant real estate”), the amount of dividends 14,211,148 won against the plaintiff among the distribution schedule prepared by the same court on February 22, 2008 shall be corrected as KRW 60,92,063, and the amount of dividends 46,780,915 won against the defendant shall be deleted.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus cites it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The parties' assertion

As the cause of the instant claim, the Plaintiff already incurred the Plaintiff’s claim for reimbursement against Nonparty 1 at the time of entering into the instant mortgage contract. Nonparty 1’s act of establishing a mortgage against the Defendant, one of the creditors, while in excess of the obligation, constitutes a fraudulent act, resulting in Nonparty 1’s shortage of joint security by other general creditors, and thus, constitutes a fraudulent act. Accordingly, the Plaintiff’s claim for cancellation of the instant mortgage contract and restitution therefrom.

In regard to this, the defendant's right to collateral security is superior to the plaintiff's provisional seizure, and the defendant merely receives a distribution in the same order as the plaintiff. Thus, the contract to collateral security of this case does not harm the other general creditors of the non-party 1.

(b) Markets:

Unless there are other special circumstances, an obligor’s act of offering real estate, which is the only property of the obligor, to one of the obligees, as a claim security, becomes a fraudulent act subject to the obligee’s right of revocation in relation to other obligees. However, whether an obligor’s act of disposal of property constitutes a fraudulent act should be maintained not only at the time of disposal but also at the time of the exercise of obligee’s right of revocation, i.e., at the time of the exercise of obligee’s right of revocation, until the time of the conclusion of arguments in fact-finding proceedings. Thus, in the event

On July 28, 2006, for the instant real estate, the Health Unit: (a) the amount claimed on July 28, 2006; (b) the amount claimed on KRW 315,932,126; and (c) the amount of the provisional attachment attachment registration for the Plaintiff to be a creditor was registered; and (d) the establishment registration for the instant mortgage establishment was completed on August 1, 2006; (b) the obligor Nonparty 2, 3; and (c) the amount of the establishment registration for the instant real estate to be the Defendant to be a mortgagee; and (d) the Daegu District Court, Daegu District Court, 2007, 14,211,148, and 46,780,915 won, which was established in proportion to the amount actually distributed to the Defendant who is a mortgagee, at the request of the Plaintiff, at the order of 60,92,063 won to be distributed.

According to the above facts, even if the defendant is the mortgagee of the right to collateral security on the real estate of this case, as long as the above provisional seizure is lower than the above provisional seizure, in relation to the relationship with the plaintiff, the defendant is bound to receive the distribution in the same order with the plaintiff as a general creditor. Thus, unless there is no evidence to prove that the defendant set up the right to collateral security of this case in collusion with the non-party 2 and 3 without any cause claim, it cannot be deemed that the non-party 1 set up the right to collateral security

Furthermore, according to the evidence evidence Nos. 6 and 7, the creditor who received dividends in the above auction procedure for the real estate in this case is only the plaintiff and the defendant, and the person who raised an objection to the distribution is only the plaintiff. If there are other general creditors against the non-party No. 1 at the time of the establishment of the right to collateral security in this case, as long as the distribution did not participate in the distribution through the demand for distribution, etc., even if other general creditors against the non-party No. 1 exist at the time of the establishment of the right to collateral security in this case, the distribution is completed by the preparation of a distribution schedule only between the plaintiff and the defendant, and the correction of the distribution schedule can be made only between the plaintiff and the defendant. Thus, the real estate in this case is no longer provided as

Therefore, since the instant mortgage contract on the instant real estate does not constitute an act of disposing of property detrimental to Nonparty 1’s other general creditors including the Plaintiff, the Plaintiff’s claim of this case premised on the premise that the instant mortgage contract is a fraudulent act is a fraudulent act is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and it is revoked by the defendant's appeal and dismissed the plaintiff's claim. It is so decided as per Disposition.

【Omission of Real Estate List】

Judges Lee Dong-jin (Presiding Judge)