Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)

Defendant (Law Firm Han-ro, Attorneys Kim Yong-ho, Counsel for defendant-appellant)

June 18, 2010

Seoul Central District Court Decision 2009Da33841 Decided October 16, 2009

1.The part concerning the defendant in the judgment of the first instance, including the claims added in the trial, shall be modified as follows:

With respect to real property listed in paragraph 10 of the Schedule:

A. On July 22, 2008 between Nonparty 1 and the Defendant, the reservation to trade made on July 22, 2008 and the sales contract made on February 10, 2010, respectively; and

B. The Defendant shall complete the procedure for the cancellation of each registration of transfer of ownership, which was completed on August 13, 2008 by the District Court No. 115181, which was completed on August 13, 2008, and the registration of cancellation of transfer of ownership as of March 30, 2010, as of March 30, 2010.

2. The total costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance shall be revoked.

The judgment like the order of Paragraph 1 is sought (the plaintiff added a claim seeking the cancellation of the sales contract and the implementation of the registration procedure for cancellation of transfer of ownership).

Optionally, the judgment like the Disposition No. 1-B(b) is sought (In addition to the claim for revocation of fraudulent act, the plaintiff selectively added the claim on the ground of invalidation due to a violation of the Act on the Registration of Real Estate under Actual Titleholder's Name or a violation of the Act on Provisional Registration Security, Etc.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of arguments as to Gap evidence 1 through Gap evidence 38, Gap evidence 42, Eul evidence 43, Eul evidence 6, Eul evidence 7-1 through 4, Eul evidence 8, and Eul's inquiry into the government market by the court of first instance.

A. On March 28, 2008, the Codefendant Haok Construction Co., Ltd. in the first instance trial (hereinafter “Nonindicted Co., Ltd.”) concluded a performance guarantee insurance contract with the Plaintiff during the period from March 28, 2008 to December 31, 2008 (hereinafter “the first performance guarantee insurance”) with respect to the payment of the five advance payment for construction works on construction sites between Ycheon-dong Hongcheon-dong Construction Co., Ltd. (Section 3), which was awarded a contract with the Plaintiff, in order to guarantee the repayment of the advance payment for the non-party company’s construction work on the construction site between Ycheon-dong Hongcheon-dong Construction Co., Ltd. (hereinafter “Newdong Construction”) and the first instance co-defendant 3 and 1 (the non-party 3’s wife; hereinafter “non-party 1”) in the first instance trial to the non-party 1’s joint and several liability insurance company.

B. On July 9, 2008, the non-party company entered into an insurance contract for performance guarantee (hereinafter “the second performance guarantee insurance”) with the non-party company on June 27, 2008, setting the insurance amount of KRW 90,000,000, and June 26, 2009, in order to secure the obligation for the payment of goods on credit under the goods supply contract with the non-party company (hereinafter “the non-party company”), and the non-party 3 and 1 jointly and severally guaranteed the obligation owed by the non-party company to the plaintiff according to the second performance guarantee insurance.

C. According to the above performance guarantee insurance, when the plaintiff performs the guaranteed obligation under the above performance guarantee insurance, the principal debtor and the joint guarantor jointly and severally paid the amount subrogated by the plaintiff to the plaintiff and the damages according to the agreed interest rate set by the plaintiff from the day following the payment date thereof. The overdue interest rate set by the plaintiff is 19% per annum and the provisions on the prior indemnity are as follows:

Article 8 (Right to Demand Preliminary Reimbursement) (1) In cases falling under any of the following subparagraphs, the plaintiff may exercise the right to demand a prior reimbursement against the principal and the guarantor even before paying insurance proceeds. In such cases, the plaintiff may take necessary measures, such as provisional seizure, against the principal and the guarantor's property for the preservation of claims

(a) When the plaintiff receives a claim for insurance money from the insured or a preliminary notice of insurance accident;

(2) In the case of paragraph (1), the principal and the surety do not have any objection even though the plaintiff has exercised his/her right to demand a prior reimbursement, and even when the plaintiff exercises his/her right to demand a prior reimbursement, the principal and the surety shall not demand the plaintiff to provide a security and

D. On August 1, 2008, the non-party company was unable to pay the price to equipment companies, etc., and the new East Asia Construction terminated the contract for construction works with the non-party company and requested the return of advance payment to the Plaintiff on November 6, 2008. The Plaintiff paid KRW 174,291,002 insurance money to the new East Asia Construction on December 26, 2008 according to the first performance guarantee insurance.

E. Since July 2008, the non-party company failed to pay the price for the goods, and on January 17, 2009, the non-party company requested the Plaintiff to pay the price for the goods. The Plaintiff paid KRW 90,000,000 of the insurance money to the Brecon on January 23, 2009 according to the second performance guarantee insurance.

F. Meanwhile, on July 21, 2008, the non-party 3 entered into a donation contract with the co-defendant 4 (the non-party 3's person, hereinafter "non-party 4") on each real estate listed in the separate sheet 1 through 8 (hereinafter "the instant donation contract") on each real estate listed in the same list 1 through 3, the non-party 3 completed the registration of transfer of ownership in the name of non-party 4 on each of the real estate listed in the same list 4 through 8.

G. As to the real estate listed in the separate sheet No. 10 (hereinafter “instant real estate”), Nonparty 1 entered into a trade promise (hereinafter “instant promise”) with the Defendant on July 22, 2008, and completed the registration of ownership transfer claim under the Defendant’s name as the receipt of the District Court No. 115181 on August 13, 2008. On February 10, 2010, Nonparty 1 entered into a principal contract based on the said promise (hereinafter “instant sales contract”) and completed the registration of ownership transfer under the Defendant’s name as the receipt of the same court on March 30, 2010.

H. At the time of the instant promise to sell and purchase, Nonparty 1’s active property, other than the instant real property, had a 1/2 share of forest 5,492 square meters in yellow City (number omitted). The market price of the instant real property was equivalent to KRW 290,000,000, but Nonparty 1 was liable for the repayment of KRW 110,000 to the lessee with the opposing power on the instant real property. At the time of the said promise to sell and purchase the instant forest, the officially announced value was KRW 2,540,050 (=925 x 5,492 x1/2).

2. Whether the fraudulent act is constituted;

A. Formation of preserved claims

(1) Establishment of the Plaintiff’s claim for indemnity

According to the facts established above, the non-party company, non-party 3 and non-party 1 are jointly and severally and severally liable to pay to the plaintiff 174,291,002 won for indemnity based on the first performance guarantee insurance and damages for delay calculated at the rate of 19% per annum from December 27, 2008 to June 16, 2009; damages for delay calculated at the rate of 20% per annum from the next day to the date of complete payment; damages for delay calculated at the rate of 90,000,000 won for indemnity based on the second performance guarantee insurance; and damages for delay calculated at the rate of 19% per annum from January 24, 2009 to June 16, 2009; and damages for delay calculated at the rate of 20% per annum from the next day to the date of full payment (the above part of the judgment of the court of first instance with respect to the non-party 1 was finalized; hereinafter referred to as the "claim for indemnity").

(2) Formation of preserved claims

In principle, it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the fraudulent act. However, at the time of the fraudulent act, there has already been legal relations that form the basis of the establishment of the claim, and there is high probability that the claim should be established based on such legal relations in the near future, and in the event that the probability has been realized and the claim has been established, it can be

On the other hand, although the reservation of this case was made prior to the occurrence of the plaintiff's claim for indemnity, there had already been legal relations based on each performance bond, which serves as the basis for the establishment of the above claim for indemnity, since July 2008, the non-party company delayed the payment of the purchase price of the goods for the non-party company from July 1, 2008, and suspended the construction contracted from the newdong Construction on August 1, 2008, it was highly probable to the effect that the non-party 1 who jointly and severally guaranteed the debt of the non-party company's performance bond against the plaintiff should bear the liability for indemnity to the plaintiff in the near future. In fact, the newdong Construction requested the plaintiff to return the advance payment to the plaintiff on November 6, 2008, and thus, it was probable that the plaintiff would bear the liability for advance indemnity under Article 8 of the First Performance Guarantee Insurance Agreement for the plaintiff's claim for reimbursement against the non-party 1 and the plaintiff's claim for reimbursement against the non-party 2.

In addition, it is reasonable to determine whether the Plaintiff’s claim for indemnity of this case can be deemed as the preserved claim of this case, because it means that Nonparty 1 did not actually bear the obligation for indemnity of this case against the Plaintiff at the time of the promise to sell and purchase this case, but it is treated equally as the obligation for indemnity of this case. Thus, in determining whether the Plaintiff’s claim for indemnity of this case was in excess of the obligation of Nonparty 1 at the time of the promise to sell and purchase this case, it is reasonable to include the Plaintiff’s claim for indemnity of this case in the small property borne by Nonparty 1, and it can be sufficiently recognized that Nonparty 1 was in excess of the obligation at

B. Establishment of fraudulent act

On the other hand, if the debtor sells the real estate of this case to the defendant under high probability that the debtor would be liable for the full repayment of the debtor's property, if the debtor provides it to a certain creditor as payment in kind or as a collateral, it would be prejudicial to the interests of other creditors and would be a fraudulent act in relation to other creditors (see Supreme Court Decision 2008Da85161, Sept. 10, 2009, etc.). As seen earlier, if the non-party 1 would be liable for the debtor's obligation for indemnity of at least KRW 174,291,00,000, which is the price under the promise for the sale in this case, in consideration of the delay damages until the closing of the trial proceedings, if it was sold to the defendant, it would be a fraudulent act in relation to other creditors, including the plaintiff, by an act unreasonably reducing joint collateral, and it would be sufficiently recognizable that the non-party 1, the debtor, was aware of this point.

In light of the above, the defendant thought that it is the best way for the debtor to continue to implement the business by financing funds in a situation where it is difficult to pursue the business due to financing, and if it is inevitable to provide certain creditors with real estate as collateral and obtain additional loans from it, the act of creating security rights of the debtor does not constitute a fraudulent act unless there are special circumstances (see Supreme Court Decision 2000Da25842, Mar. 29, 2002). The defendant's husband's non-party 2 did not obtain approval from the non-party 1's husband from June 2007 on March 25, 2008 on the sale and purchase price of the above 1000 won, the non-party 200 won did not supply and purchase the above 130,657,857 won until July 1, 2008 and the non-party 2 did not request the above provisional registration to suspend the sale and purchase price of the above 200 won.

On the other hand, the above legal principle invoked by the defendant is a standard for establishing fraudulent act that can be applied to the case where the property of the non-party company is provided as security to a specific creditor of the non-party company for the continuation of the non-party company's business. The issue of whether the act of disposal of the real estate in this case owned by the non-party 1 should be determined based on the property status of the non-party 1, depending on whether the non-party 1's creditors (the non-party 1's creditors are not creditors of the non-party company) suffer a shortage of joint security. The above legal principle cannot be extended to the case where the non-party 1's property is provided as security to the non-party company's specific creditor for the continuation of the non-party company's business. Thus, the above argument by the defendant is without merit

C. Sub-committee

Therefore, the sales contract between the non-party 1 and the defendant as of July 22, 2008 and the sales contract as of February 10, 2010, which was made based on the promise to sell and purchase as of February 10, 2010, constitutes a fraudulent act, respectively, and thus revoked, and the defendant is obligated to implement the procedure for each registration of cancellation of ownership transfer as of March 30, 2010 to the non-party 1 as of August 13, 2008, for the provisional registration of the right to claim ownership transfer completed as of August 13, 2008, and as of March 30,

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the part as to the defendant in the judgment of the court of first instance is unfair with different conclusions. Thus, the plaintiff's appeal is accepted, including the cancellation of the contract of this case added in the court of first instance and the request for cancellation of transfer of ownership registration based thereon, and the judgment of the court of first instance is modified as above. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)