2014Da12355 Revocation of Fraudulent Act

New Financial Investment Company

A

Seoul Central District Court Decision 2013Na16151 Decided January 16, 2014

July 23, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In a lawsuit seeking revocation of a fraudulent act, the issue of the beneficiary’s good faith shall be determined reasonably by comprehensively taking into account the following circumstances: (a) the relationship between the debtor and the beneficiary; (b) the details of and the background or motive for the act of disposal between the debtor and the beneficiary; (c) whether there is any extenuating circumstance to suspect that the terms and conditions of the act of disposal thereof are normal and reasonable; and (d) whether there is objective evidence to support the normal transaction relationship; and (e) the circumstances after the act of disposal (see, e.g.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On August 1, 2007, the Plaintiff invested KRW 500 million in C (hereinafter referred to as “C”). B, the representative director of C, jointly and severally guaranteed the obligation to return the investment when the said investment contract is terminated, and the Plaintiff terminated the said investment contract on the grounds of the violation of the C’s investment agreement around January 2009. B. On the same day, B borrowed KRW 500 million from the Defendant on April 21, 2010, and on the same day, on the security, established the first mortgage with the maximum debt amount of KRW 30 million in the instant real estate as indicated in the lower judgment, and on April 22, 2010, C’s shares (ordinary, face value of KRW 50 billion) of the Plaintiff and KRW 200,000,000 in the future, KRW 500,0000,0000,0000,0000,000,000 won were more than the maximum debt amount of KRW 500,500,01.

3. The following circumstances revealed by the facts and records as follows: (a) the Defendant lent KRW 500 million to the Plaintiff at the request of B, namely, the value of the first and second collateral on the instant real estate owned by C and B as collateral is equivalent to the amount loaned; and (b) there was no circumstance that the Defendant and B had a relative relationship or a special transaction relationship, or that the transaction was performed normally at the time of the establishment of each of the above collateral security rights; (c) in light of the legal principles as seen earlier, the Defendant created each of the instant collateral security rights as collateral on the loan claim by lending KRW 500 million at the request of B, and thus, it is sufficient to deem that the Defendant constitutes a bona fide beneficiary who did not know that it was a fraudulent act detrimental to the Plaintiff or other general creditors.

Nevertheless, the lower court rejected the Defendant’s defense that he was a bona fide beneficiary on the ground that the sum of the maximum debt amount and the maximum debt amount of senior mortgage exceeds the amount reported as acquisition value of the instant real estate at the time of the establishment of each of the instant mortgages, or that the registration of seizure or the registration of creation of a mortgage was completed on the apartment located in B’s residence at that time. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the judgment of the beneficiary in a lawsuit seeking revocation of fraudulent act

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court 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 Yong-deok

Justices Lee In-bok, Counsel for the appeal

Justices Kim Gin-young