Seoul Eastern District Court 2010Kahap12003 (Law No. 119,06)

If it is presumed that the disposal of property has been malicious in excess of liability, it shall be subject to revocation of fraudulent act.

It is reasonable to deem that the circumstance that the creditor, including the plaintiff, was fully aware of the circumstance that the creditor would be harmed in excess of his/her obligation, constitutes the subject of revocation of fraudulent act

2011Na80687 Revocation of Fraudulent Act

Korea

AAAA 2 persons

Seoul Eastern District Court Decision 2010Kahap12003 Decided September 6, 201

May 2, 2013

July 18, 2013

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

(a) With respect to each land listed in the separate sheet No. 1, between Defendant AAA and LBB, and between Defendant AAA and the LBB, the agreement signed on November 24, 2008, between Defendant AA, and BB, is revoked within the limit of 4385/3680 of each maximum BB equity in the separate sheet No. 3685, Nov. 24, 2008.

B. With respect to 4385/36850 of the most BB equity in each land listed in the separate sheet in paragraph (1) of the attached list, Defendant AAA will implement the registration procedure for cancellation of the registration procedure for the establishment of a neighboring mortgage completed by the Incheon District Court Branch on November 25, 2008 under the receipt No. 167077 of the Additional District Court of Incheon on November 25, 2008, and Defendant AAA and SongO on November 25, 2008.

(c) As to each of the real property listed in the separate sheet No. 2, and between Defendant AAA and the lowestBBB, the termination of the trade reservation made on July 15, 2009, and Defendant AAA will implement the procedure for cancellation of the provisional registration of the right to claim ownership transfer registration completed under No. 80121 on July 15, 2009 by the District Court of Incheon to the Bao.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Fact-finding and 2. Determination on the defense prior to the merits

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance, and thus, citing this as it is by the main text of Article 420 of the Civil Litigation Act.

3. Judgment on the merits

A. Summary of the parties' assertion (1) Summary of the plaintiff's assertion

In order to avoid debts to the plaintiff et al. in excess of debt, LB made a promise to sell and purchase the land in this case with AAA on November 24, 2008 in collusion with the defendants, and entered into a mortgage-backed contract with defendant Songo on November 25, 2008, and completed the registration of the right to claim the transfer of ownership with defendant Songo and Doo on November 25, 2008, and completed the registration of the establishment of the right to claim the transfer of ownership on July 15, 2009 and completed the registration of the right to claim the transfer of ownership. Accordingly, each sales contract and the establishment of a mortgage should be revoked as a fraudulent act, and the defendants have the obligation to cancel each of the above registration in the name of the defendants as the restoration to original state to the plaintiff.

(2) Summary of the Defendants’ assertion

(A) The mostBB was not in excess of its obligation on November 24, 2008 and July 15, 2009, and each of the above sales reservation and mortgage contract cannot be deemed as a fraudulent act detrimental to the creditors' joint security of the mostBB.

(B) The defendants' right to collateral security established on November 24, 2008 is established to secure the mostBB's existing obligations against the defendants, and the registration of the defendant AAA's right to claim ownership transfer registration of the land of this case and new officetels made on November 24, 2008 and July 15, 2009 is the best way for the most BBB to continue its business by financing its funds out of the financial difficulties, and it is not a fraudulent act.

B. Determination

(1) Determination of sale reservation and each contract to establish a mortgage on November 24, 2008 regarding the land of this case

(A) A preserved claim

According to the above facts of recognition, tax claims against the plaintiff mostBB, which was established as of November 24, 2008, are 000 won (the sum 1 to 5 of the table in paragraph (a) above). This is the creditor's right to be preserved in the lawsuit of this case.

(B) Property status of the debtor most BB at the time of November 24, 2008

1) In full view of the arguments in Gap, 1, 2, 5 through 8, 10, 11, 12, 19 through 31, 36 through 31, 36 through 30, 1, 2, 2, 8 through 17, 22, 34, 36 through 42, 47, 48, 51, 52, 55 through 57, 60, and 61, part of the testimony of the highest witness at the trial and part of defendant ABB of the self-examination of the defendant AA, and the fact that the least BB at the time of November 24, 2008, as listed below, had positive property of 00 won or more, and had positive property of 00 won or more, and had positive property of 00 won or more.

2) Determination of the parties’ assertion

① According to the Plaintiff’s assertion that the obligation to return KRW 000,000 to Gangnam-gu, Seoul, should be included in the least BBB’s small property, and according to the evidence evidence No. 23, KimCC, the former owner of the above real property, reported that the above sub-owned property is leased at KRW 000,000 from January 2008 to June 2008, the former owner of the above sub-owned property, and that the above sub-owned property is leased at KRW 000,000. However, it is difficult to readily conclude that BB is also liable for the return of KRW 00,000, and there is no other evidence to acknowledge that BB is otherwise, and that BB is not liable for the above 30,000,000,000 from the seller’s 19-B evidence No. 46, and 30,000,000,000 from the seller’s 30,000,08.

2. The defendants asserts that the following, (i) the assets are included in the positive assets of the largest BBB, and (ii) the assets of the two must be excluded from the largest BB's small assets, but for the following reasons, the above claims of the defendants are without merit.

(3) The entire site for subdivision and common use (hereinafter referred to as "OO-type land") in Gwangju City, O-ri 91-8 and all of the site for common use.

The defendants asserted that the 20B BB had no record of the above 4 BB loan and that the 200 OB loan had no record of the 200 OB loan and that the 200 OB loan had no record of the 20 OB loan and that the 200 OB loan had no record of the 20 OB loan and that the 200 OB loan had no record of the 20 OB loan and that the 100 OB loan had no record of the 53 EB loan and the 540 OB loan had no record of the 20 OB loan and that the 200 OB loan had no record of the 30 OB loan and the 200 OB loan had no record of the 20 OB loan and the 200 OB loan had no record of the 30 OB loan and the 200 OB loan had no record of the 20 OB loan agreement.

(4) Joint and several guarantee obligations for a loan of up to 000 won in Korea credit cooperatives.

The defendants argued that the main debtor's physical security has been secured with respect to 000 won of loans to the Korea-China Credit Union, so the most BB shall be excluded from the smallest property of the most BB, but if the most BB bears the guaranteed obligation for the main debtor, there is no special reason to exclude the defendants' assertion from the smallest property.

(C) Whether the occurrence of insolvency occurs

1) General legal principles

Since a fraudulent act refers to an act detrimental to the creditor by reducing active property, increasing the negative property, or deepening the fact that the debtor has already been in excess of his/her obligation, it should be presumed that such act resulted in the above situation (see Supreme Court Decision 2000Da7783, Oct. 25, 2002). Meanwhile, a provisional registration to preserve the right to claim ownership transfer registration does not take effect on the sole basis of the body of the person alone, but if the principal registration is made thereafter, it would result in the result that the creditor is unable to obtain full repayment due to the effect of ownership change retroactively at the time of provisional registration, and thus, the establishment of provisional registration would also be subject to the right to claim ownership transfer registration (see Supreme Court Decision 74Da334, Feb. 10, 1975).

2) Review in this case

① Based on the above legal principles, the fact that Bocom, and LBB entered into a bilateral agreement with the Defendant AA, and each of the Defendant AAAA, and the Defendant AAA, and the Defendants’ provisional registration and the establishment of a collateral security agreement, etc. on the ground of these agreements, are the same as seen earlier, and the land in this case does not substantially have property value as a joint collateral for all general creditors including the Plaintiff. Based on the above circumstances, the value of the remaining active property of the LBBB after entering into a preliminary agreement and a collateral security agreement on the land in this case is reduced to KRW 00 or KRW 00 in total according to the following calculation, and the liabilities owed by the least BBBB are still the aggregate amount of the liabilities owed by the Plaintiff.

(2) Actions

If so, by entering into a contract to purchase and sell the land of this case and a contract to establish a mortgage, the BBB would have caused the excess of the obligation.

(D) The intent to commit fraudulent acts and to injure

In cases where a debtor's act of reducing liability property causes or deepens the shortage of common security for general creditors, whether the subject matter of the act constitutes a fraudulent act subject to revocation, and whether the subject matter of the act constitutes a fraudulent act, the proportion of the debtor's entire responsible property, the degree of insolvency, the legitimacy of the economic purpose of the juristic act, the appropriateness of the act in question, the obligation or real nature of the act, and the degree of awareness between the debtor and the beneficiary as to the risk of lack of common security such as the existence of a collusion between the debtor and the beneficiary, shall be comprehensively taken into account, and whether the act can be seen as an act detrimental to the general creditor (see Supreme Court Decision 2007Da2718, Sept. 30, 201). In addition, it should be determined on Nov. 24, 2008, at the time of entering into a sale and purchase agreement of the land in this case and entering into a contract for collateral security agreement, the most BB was in excess of the debtor's obligation, and at the time when the land in this case was sold or BB agreement between the beneficiary and the Defendants.

(e) Revocation of fraudulent act and restitution to original state;

Therefore, all of the contract of mortgage between the defendant AAA and the defendant ABB, the contract of mortgage between the defendant AAA and the defendant BBB, and the contract of mortgage between the defendant BO and the defendant BB should be cancelled within the limit of 4385/3680 of each most BB equity in the land in this case as the plaintiff's fraudulent act against the plaintiff, and the defendants have the duty of the most BBB to file a claim for ownership transfer registration completed with respect to 4385/360 of the 36850 of the 36850 of the 36850 of the 36850 of the 36850 of the 3685 of the 3.

(2) Determination on the pre-sale agreement concluded on July 15, 2009 with respect to the instant building

(A) A preserved claim

According to the above facts of recognition, the total amount of the plaintiff's tax claims against the largestBB that occurred as of July 15, 2009 is 000 won increased by 000 won compared to the present on November 24, 2008 (the aggregate of the table Nos. 1 through 12 of the above 1. (a) above), and this becomes the preserved claim of the creditor's revocation lawsuit in this case.

(B) Property status of the debtor most BB at the time of July 15, 2009

Eul evidence No. 19 shall be recorded in full consideration of the overall purport of the pleadings, and after November 24, 2008, July 2009

15. Until now, mostBB's active property has been reduced in KRW 000, and small property has decreased in KRW 000.

(C) The intent to commit fraudulent act and to injure

As seen earlier, the maximum BB had already been in excess of its obligation on November 24, 2008, and the active property on July 15, 2009 decreased more than the small property, so the excess of its obligation would further deepen (other than the small property of the largest BBB recognized above, and as the small property of the parties between the parties, the provisional attachment obligation for the early maturity and the provisional attachment obligation for MaOOOO is more advanced, and the above excess of its obligation may become more worse depending on the recognition of the above obligation, and in light of the legal principles as seen earlier, the most BBB concluded a pre-contract with Defendant AA on July 15, 2009 shall be presumed to constitute a beneficiary’s speculative act, so long as the beneficiary’s intent is deemed to be detrimental to the creditor such as the Plaintiff. In this case, the beneficiary’s intent is presumed to be the beneficiary’s speculative act.

(D) Revocation of fraudulent act and restitution to original state;

Therefore, Defendant AAA’s promise to sell and purchase the instant building between the largest BBB on July 15, 2009 is a fraudulent act against the Plaintiff, and it must be revoked within the limit of 4385 percent of the largest BB equity 36850, as the Plaintiff seeks, and Defendant AAA has the obligation to implement the procedure of cancellation of the provisional registration of the right to claim ownership transfer registration of the instant building, which was completed with respect to the restoration to its original state.

(3) Determination as to the Defendants’ assertion that the conclusion of the reservation to trade and purchase the instant land and building and the completion of provisional registration therefrom did not constitute a fraudulent act

(A) Defendant AAA’s assertion

Defendant AAA, and most BBB made it difficult to continue the construction of officetels due to financial difficulties, Defendant AAA proposed that Defendant AAA would take over the entire project and would continue the construction even if all of its own funds were invested, and that BB would be the best method to continue the construction, and that it would be the best method to continue the construction of the instant land and new officetels, and that the establishment of provisional registration was an inevitable measure to confirm the ability to repay the instant officetel by selling it in lots, and that the establishment of provisional registration was not a fraudulent act.

(B) Determination

1) The debtor's act of offering real estate in excess of his/her obligation to one of the creditors is deemed to constitute a fraudulent act in relation to other creditors, unless there are special circumstances. However, it is the best way for the debtor to continue his/her business by financing funds in a situation in which it is difficult to continue his/her business due to financial difficulties, and if it is inevitable to provide certain creditors with real estate as collateral and obtain additional financing from them, barring special circumstances, the debtor's act of creation of security right is not a fraudulent act (see, e.g., Supreme Court Decision 200Da5015, May 8, 2001; Supreme Court Decision 2000Da5015, May 8, 2001).

2) 이 사건으로 돌아와 보면 앞서 든 증거들 및 갑 제9호증， 을 제2 내지 7， 66 내지 72호증의 각 기재에 변론 전체의 취지를 종합하면， 최BBBB는 2008. 2. 1. 이 사건 토지를 취득한 후 그 지상에 오피스텔 43세대를 신축하기 위하여 2008. 2. 16. 주식회사 OO종합건설(이하 'OO종합건설'이라고만 한다)과 사이에 공사금액 0000원， 준공일 2008. 11. 20.을 내용으로 하는 공사도급계약을 체결한 사실， OO종합건설이 공사비가 제대로 지급되지 않는다는 이유로 2008. 7.경 공사를 중단하자 최BBBB는 2008. 10. 15. OO종합건설과 사이에， 준공 후 오피스텔 수 분양자들의 분양잔금을 양자 공동명의로 개설된 통장으로 입금받아 최우선적으로 공사비를 정산하기로 하는 합의를 함과 아울러， 당일 OO종합건설에게 액면가 000원의 약속어음을 발행하여 준 사실， 그 무렵 오피스텔 수분양자들 중 일부 세대는 최BBBB에 대하여 공사가 제대로 진행되지 않아 분양계약을 해제하겠다고 하면서 계약금 및 중도금의 반환을 요구하기도 한 사실， 이에 최BBBB는 피고 AAAA으로부터 자금을 융통하기로 하고 우선 2008. 11. 24. 피고 AAAA과 사이에 이 사건 토지에 관하여 매매예약을 체결하고 2008. 11. 25. 위 매매예약을 원인으로 한 피고 AAAA 명의의 가등기를 마쳐 주었고， 오피스텔이 완공됨에 따라 2009. 6. 26. 선축 오피스텔에 관하여 자신 명의의 소유권보존등기를 마친 다음(같은 날 이 사건 토지는 대지권으로 등기를 마쳤다) 2009. 7. 15. 다시 피고 AAAA과 사이에 위 오피스텔 43채 전부에 관하여 매매예약을 체결하고 같은 날 위 매매예약을 원인으로 한 피고 AAAA 명의의 가등기를 마친 사실， 피고 AAAA은 이 사건 토지에 가등기를 설정할 무렵인 2008. 11. 10.부터 2009. 12. 31.까지 사이에 최BBBB에게 합계 0000원을 지급한 사실 그후 피고 AAAA은 신축 오피스텔 43세대 중 이 사건 건물 5세대4)를 제외한 분양대금을 완납한 38세대에 대하여 이 사건 토지의 공유지 분 및 이 사건 오피스텔의 구분소유권에 대한 소유권이전청구권의 가등기를 이전 하여 준 다읍， 2009. 12. 11. 또는 2010. 5. 31. 위 오피스텔 각 호실에 관하여 소 유권이전등기청구권가등기에 기한 본등기를 하는 방법으로 소유권을 이전하여 준 사실을 인정할 수 있다. 그러나 한편 앞서 든 증거들 및 변론 전체의 취지를 더하여 인정되는 다음의 사정들 즉，① 피고들 주장의 위 신규자금은 이 사건 토지 뿐만 아니라 그 지상에 건립된 오피스텔 43세대 전부에 관하여 피고 AAAA 앞으로 담보가등기를 설정해주고 피고 AAAA으로부터 받은 것인데， 앞서 본 바와 같은 이 사건 토지(이 사건 토지의 취득가액만 하더라도 0000원에 달한다)나 이 사건 토지를 포함한 신축 오피스텔의 가액(분양분 잔금채권과 미분양분 분양가액의 합계액은 무려 000원에 달한다)과 위 신규자금 규모를 비교해 볼 때 피고 AAAA 명의의 가등기를 담보 가등기로 보기에는 담보물과 피담보채무 사이의 균형이 지나치게 과도하게 어긋나 있어 그 주장을 쉽사리 받아들이기 어려운 점 ② 위 신규자금은 약 1년간에 걸쳐 수시로 투입되었는데， 이에 비추어 보면 이 사건 토지 및 신축 오피스텔에 관한 매매예약 체결 당시에 국한하여서만 유독 최BBBB가 자금난에 처하여 신규자금을 추가로 융통받지 않을 수 없는 불가피한 상황이었다는 피고 AAAA의 주장을 그대로 믿기는 어려운 점，③ 더구나 당시 최BBBB가 공사업체에 대하여 공사대금채무를 부담하고 있기는 하였으나 일반 채권자들로부터 조급하게 담보권을 실행할 사태의 도래가 예상되지는 않았고 또한 가등기를 경료받은 피고 AAAA은 이전부터 계속적으로 영업자금을 융자하여 오던 최BBBB의 기존 채권자로서 장래에도 그 융자가 계속되는 것이 기대되는 사정 아래에 있었다고 보이는바， 과연 진행 중인 공사의 완공을 위하여 이 사건 토지 및 건물에 관하여 가등기를 설정하는 것이 최션의 방법 이었는지에 대하여는 의구심이 드는 점，④ 실제로 피고 AAAA이 이 사건 토지 지상 에 건립된 오피스텔에 관하여 수분양자들 앞으로 가등기에 기한 본등기를 마쳐주 어 최BBBB의 일반채권자들은 더 이상 이 사건 토지 및 오피스텔을 집행재산으로 할 수 없게 되었는바，결과적으로 최BBBB의 채권자들 중 수분양자들로 하여금 차질 없이 완전한 소유권을 이전받도록 하여 사실상 우선변제를 받게 하는 결과에 이르게 함으로써 원고를 비롯한 다른 일반 채권자들의 이익을 해하게 된 점 등에 비추어 보면， 최BBBB가 신규자금 명목으로 0000원을 지급받았다는 점만으로 최BBBB가 이 사건 토지 및 오피스텔에 피고 AAAA 명의의 가등기를 설정한 행위가 사업을 계속 추진하여 채무 변제력을 확보하기 위한 부득이한 조치였다고 보기는 어렵다. 따라서 피고 AAAA의 위 주장은 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and the judgment of the court of first instance is just in this conclusion, and the defendant's appeal is dismissed and it is so decided as per Disposition.